TaxTMI 
TaxTMI 
TaxTMI 
2004 (5) TMI 627
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.... both sides were heard. 2. The accused is the revision petitioner. He challenges the order passed by the Special Judge-ll, CBI (AHD), Ranchi. On 20.1.2004 in RC 54/[A]/96-Pat by which the Special Judge dismissed a petition filed by the accused, the petitioner before me, seeking his removal from the array of the accused and to desist from framing any charge against him in the particular prosecution. According to the revision petitioner, the present case was one of the several cases registered in respect of fraudulent withdrawal of money from the Treasuries in Bihar on the strength of forged and fabricated allotment letters for making payments to suppliers for non-existent supplies of feed/fodder, medicines and other equipments, called fodder scam cases. 3. According to the revision petitioner, since he had been accepted as an approver in certain other fodder scam cases, including in one before the same Special Court, he could not be arrayed as an accused in the case on hand and since the prosecution has also agreed to treat him as an approver in the present case also, the Court was bound to treat him as an approver and remove him from the array of the accused. He contended that th....
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....approver. He went to the extent of arguing that there was no discretion in the Court in that regard and the Court was bound to affix its stamp of approval on the agreement between the prosecution and one of the accused who is willing to turn approver. Learned counsel referred to the decision of the Supreme Court in Pascal Femandes v. State of Maharashtra, with particular reference to paragraph 15 thereof, Therein Mr. Justice M. Hidayatullah, as he then was, speaking for the Supreme Court stated thus :-- "15. In this case the Special Judge made no effort to find out what Jagasia had to disclose. The English law and practice is (a) to omit the proposed approver from the indictment, or (b) to take his plea of guilty on arraignment, or (c) to offer no evidence and permit his acquittal, or (d) to enter a nolle prosequi. In our criminal jurisdiction there is a tender of a pardon on condition of full disclosure. Section 8(2) of the Criminal Law Amendment Act is enabling. Without recourse to it, an accused person cannot be examined as a witness in the same case against another accused. To determine whether the accused's testimony as an approver is likely to advance the interests of j....
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....tually grant pardon was vested in the Court obviously, the Court can have no interest whatsoever in the outcome; nor can it decide whether a particular evidence is required or not to ensure conviction. Counsel for the revision- petitioner relied on the above decision also to contend that the choice of to prosecution in selecting an approver or a decision taken by it in that regard could not be disturbed by the Court and on the basis of the prayer of the prosecution, the Court was bound to grant pardon to the approver. This again, in my view, does not exclude the jurisdiction of the Court in taking a decision whether pardon should be granted to one of the accused as proposed by the prosecution, though it may not be for the Court to choose which one of the accused should be made an approver in a particular prosecution. But what we are concerned with here is the question whether in no circumstance, the Court could reject a request made by the accused and supported by the prosecution that an accused be treated as an approver. State (Government of NCT of Delhi) v. Prem Raj, was relied on by counsel to argue that the power of pardon is one of the many prerogatives which have been recogni....
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.... 307 of the Code, it is the Court which has the right to decide ultimately whether pardon must be granted to one of the persons allegedly involved in the crime. Section 307 of the Code actually empowers the Court to which commitment is made to tender pardon before the judgment is passed. On the wording of the section I am not in a position to accept the argument of learned counsel for the revision-petitioner that the Court had no role to play in the matter of treating the revision-petitioner as an approver and that it is merely a contract between the prosecutor and one of the persons arrayed as an accused, which the Court was bound to accept and approve. 8. In Bawa Faqir Singh v. Emperor, the Privy Council noticed the difference between Section 337 of the Code of 1898 (present Section 306) and Section 494 (present Section 321) in the following words :-- "The proceedings so taken under Section 337 are different in character from the course which would be taken under Section 494. The former section deals with the action of judicial, the latter with that of an executive officer." As I understand it, the distinction was that in a case coming under Section 306 of the Code it was for....
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....p when the prosecution and one accused agreed that, that particular accused will be treated as an approver. 10. The argument that the revision-petitioner having been treated as an approver in other cases including in one case before the same Court, it was obligatory on the Court to treat him as an approver in the present case also, cannot be accepted. In the State (Delhi Administration) v. Jaggit Singh referred to earlier, pardon was granted in respect of one offence whereas that person figured as an accused in four other cases. An argument was raised that since he was an accused in four other cases he could not be examined as an approver in the case in which he was recognised as such. It must be noted that; that was a case of joint trial, whereas there is no joint trial in the present case or in any other fodder scam cases. Inspite of it being a joint trial, the Supreme Court rejected the contention that the approver could not be examined as an approver in one case since he has been arrayed as an accused in the other cases. Therefore, this argument also cannot persuade this Court to interfere with the orders of the Sessions Court. Once the position is reached that the Court itsel....