Lt. Commander Pascal Fernandes V.s The
State of Maharashtra & Ors  INSC 222 (28 September 1967)
28/09/1967 HIDAYATULLAH, M.
BHARGAVA, VISHISHTHA VAIDYIALINGAM, C.A.
CITATION: 1968 AIR 594 1968 SCR (1) 695
Criminal Law Amendment Act (46 of 1952), s.
8(2) and Criminal Procedure Code (Act 5 of 1898), ss. 337 and 338Power to
tender pardon under Criminal Law Amendment Act-If exercisable only on the
application of prosecution-If governed by s. 540, Cr. P.C.--Matters to be
considered before tendering pardon.
Three superior Government officers, an upper
division clerk and four others were being tried before the Special Judge,
appointed under s. 6 of the Criminal Law Amendment Act, 1952, for various
offences including criminal misconduct under s.5 (2) of the Prevention of
Corruption Act, 1947.
The clerk applied to the Court praying that
he should be made an approver and examined as a prosecution witness. The
application was opposed by the other co accused but the Special Judge, acting
under s. 8(2) of the Criminal Law Amendment Act, tendered a conditional pardon
to him and ordered that he should be examined as an approver and witness for
the prosecution. The appellant, who was one of the co-accused, filed a revision
in the High Court. In the High Court, the prosecution stated that it had no
objection to the grant of pardon to the clerk and that it even welcomed it. The
High Court thereupon confirmed the order of the Special Judge.
In appeal to this Court, the appellant contended
that : (1) differences between ss. 337 and 338 Cr. P. C., and s. 8(2) of the
Criminal Law Amendment Act, show that the powers of the Special Judge, in
tenderingpardon under s. 8(2), are limited to an application by the prosecution
in that behalf and that the Special Judge could not act suo motu; (2) the
powers of the Special Judge under s. 8(2) are circumscribed by the
considerations that underlie s. 540 Cr. P. C.. and that therefore he could not
acquit one accused so as to be able to convict another; and (3) the Special
Judge had not exercised his discretion judicially and properly.
Held: (1) Under s. 7(1) and (3) of the
Criminal Law Amendment Act, notwithstanding anything contained in the Criminal
Procedure Code, the offences under ss. 161 or 165 or 165A I.P.C., and s. 5(2)
of the Prevention of Corruption Act, 1947, shall be tried only by a Special
Therefore, in the case of an offence under s.
5(2) of the Prevention of Corruption Act, under s. 337(1) Cr.P.C., a
Magistrate, with a view to obtaining the evidence of any person supposed to
have been directly or indirectly concerned In or privy to an offence, may
tender pardon to him; but when that person has accepted the tender of pardon
and has been examined under s, 337(2), the Magistrate must, without making any
further enquiry send the case to the Special Judge for trial under s. 337(2B).
The provisions of s. 337(1) thus apply at the stage of investigation or inquiry
before the case reaches the Special Judge. Whenthere is no such tender of
pardon to any one, the case shall be forwarded for trial, to the Special Judge
and his powers commence after he 696 has taken cognizance of the case and are
available to him throughout the trial. When the case is before him, a tender of
pardon can only be by him. But where the offences are other than those under
ss. 161, 165, 165A, I.P.C. and S. 5(2) Prevention of Corruption Act, when there
is a committal by the Magistrate under S. 337(2A), S. 338 Cr.P.C. provides that
the court to which commitment is made could not only tender pardon itself, but
could also order the committing Magistrate or District Magistrate to do so.
Such a power is not available to the Special Judge, because, there is no
commitment when he takes cognizance. These differences, in the powers of the
Special Judge and the courts constituted under the Criminal Procedure Code do
not, however, show that the powers of the Special Judge could only be exercised
if the prosecution moved first. On the contrary, there is nothing in the
language of the section to show that the Special Judge must be moved by the
prosecution. The section is enabling and its terms are wide-. Therefore, the
Special Judge may consider an offer by one of the accused to turn approver.
[701 F-G; 703 B-E, H; 704 A].
(2) Section 540, Cr.P.C., confers powers on
the court to summon material witnesses at any stage of any inquiry or trial or
other proceeding under the Code. The considerations for summoning persons as
court witnesses are different from the considerations on which a tender of
pardon is made. It is not, therefore, possible to read S.
540 either with ss. 337 and 338, Cr. P.C., or
with s. 8(2) of the Criminal Law Amendment Act. [704 B-D].
(3) Ordinarily, it is for the prosecution to
ask that a particular accused out of several may be tendered pardon.
But when the accused applies directly, the
Special Judge must first refer the request to the prosecution, because, the
State may not need an approver's testimony and therefore may not desire that
any accused should be pardoned; or, it may not like the tender of pardon to the
particular accused who may be the worst, offender. It is only when the
prosecution joins in the request that the Special Judge should exercise his
powers. In exercising his discretion, the Special Judge must bear in mind that
the interests of the accused are just as important as those of the prosecution,
and no procedure or action can be in the interest of justice if it is
prejudicial to an accused.
Also, before he tenders pardon he must, know
the nature of the evidence that the person seeking the pardon is likely to
give, the nature of his complicity and the degree of his culpability in
relation to the offence and the other coAccused. In this case, the Special
Judge made no effort to find out what the applicant had to disclose. But since
the Public Prosecutor stated in the High Court that the prosecution also
considered favourably the tender of pardon to the applicant, this Court would
not interfere with the order of the High Court. [704 D-E, H; 705 B-F].
Reg, v. Robert Dunne, 5 Cox Cr. Cases 507,
CRIMINAL APPELLATE JuRISDICTION Criminal
Appeal No. 148 of 1967.
Appeal by special leave from the judgment and
order dated July 20, 1967 of the Bombay High Court in Criminal Revision
Application No. 439 of 1967.
J. C. Bhatt, and B. R. Agarwala, for the
H. R. Khanna and R. N. Sachthey, for
respondent No. 1.
697 A.K. Sen, Bishamber Lal and H.K. Puri,
for respondent No. 8.
The Judgment of the Court was delivered by
Hidayatullah, J.--This is an appeal by special leave against an order of the
High Court of Bombay dated July 20, 1967 dismissing a criminal revision
application filed by the appellant against an order of the Special Judge,
Bombay tendering pardon to a co-accused under sec. 8(2) of the Criminal Law
Amendment Act of 1952. The appellant is being tried before the Special Judge,
Bombay along with seven others for conspiracy to cheat the officers of the
Naval Dockyard and under s. 5(2) of the Prevention of Corruption Act, 1947. The
substantive charges against the several accused are different but it is not
necessary to mention them here. The gist of the accusation is that the several
accused had entered into criminal conspiracy to cheat the authorities of the
Naval Dockyard. Material purchased locally was certified to be of superior
quality while it was, in fact, inferior. In this and in diverse ways the Naval
Dockyard Authorities were cheated to the tune of Rs. 3,65,000 and odd. Among
the array of the accused in the case are three contractors (accused Nos. 5, 6
and 7) and their servant (accused No. 8), and four Government servants of whom
accused No. 1 is the appellant before us. Of the remaining three Government
servants, accused No. 4 (M. 'M.
Jagasia) was an Upper Division Clerk working
as Office Supdt. at the material time drawing a salary of Rs. 200 per month.
Against Jagasia there is yet another charge, namely, that he is in possession
of property disproportionate to his known sources of income which fact, if
proved. is likely to lead to a presumption under the Prevention of Corruption
Act. Evidence has already been accumulated, which is calculated to show that he
is. in possession of three motor cars, a building valued at Rs. 28,000 and odd
and currency notes in a locker of the value of Rs. 16,400 in addition to gold
and other ornaments and his bank balance.
The case appears to have been previously
before Mr. R. K. Joshi, Special Judge, Greater Bombay and he framed charges
against the accused in the case, on the basis of material furnished by the
prosecution under the provisions of s. 173 of the Code of Criminal Procedure.
The case then went before the present Special Judge, Mr. N. M. Indurkar.The
case was fixed for trial from April 24, 1967. On April 20.
1967, Jagasia made an application to the
Court praying that he should be tendered pardon and made an approver and
examined as a prosecution witness. The reason given by Jagasia was that he had
full and complete knowledge of all that had taken place between the officers
and the contractors and that he was in a position to disclose how the
conspiracy was formed and the several offences committed. He said that he was
making this offer "in order to unburden the mental tension and in order to
help the cause of justice". He, also 698 stated that he had not been given
any threat, promise or any inducement by any police officer and that he was
making the application voluntarily.
The application of Jagasia was stoutly
opposed by his coaccused, particularly the appellant before us. It was
contended on his behalf that the granting of pardon to secure evidence, whether
under the Code of Criminal Procedure or under s. 8(2) of the Criminal Law
Amendment Act, 1952, was essentially for the prosecution to consider in the
first instance; that the application being made after the framing of the
charges was not legally tenable-, that the prosecution considered the evidence
sufficient for the successful prosecution of all the accused including Jagasia
himself-, that the evidence against Jagasia was likely to be fortified by the
presumption under the Prevention of Corruption Act and that the grant of pardon
to him would be an act of favour to him and highly prejudicial to the defence
of other accused. The Special Judge, Greater Bombay, after hearing arguments
tendered a conditional pardon to Jagasia and ordered that he shall be examined
as an approver and witness for the prosecution. Simultaneously the learned
Judge ordered that Jagasia's statement be recorded by the police under S.
162(161) of the Code of Criminal Procedure and copies thereof supplied to the
other accused in good time before the hearing next started.
The appellant herein filed revision in the
High Court and urged the same grounds which we have set out above. The
prosecution in the High Court stated that it had no objection to the grant of
pardon and that it even welcomed the opportunity of having the evidence of an
approver, through tender of conditional pardon to Jagasia. The High Court,
after hearing the arguments, passed the order, now under appeal,' upholding the
tender of conditional offer of pardon to Jagasia.
In this appeal Mr. J. C. Bhatt contends that
the powers of the Special Judge in tendering conditional pardon under s.
8(2) of the Criminal Law Amendment Act are
limited to an application by the prosecution in that behalf and the Special
Judge cannot act suo motu without being invited by the prosecution to consider
the tender of pardon to one of the accused before him. Mr. A. K. Sen in
supplementing the arguments on behalf of one of the respondent co-accused
further urged that the powers of the Special Judge in securing additional
evidence are circumscribed by considerations that underlie s. 540 of the Code
and therefore he can act in the interests of justice only and not with a view
to granting an acquittal to one of the, accused so as to be able to convict
another. Both the learned counsel also urge that in the present case the
discretion, if any, vested, in the Special Judge under s.
8(2) of the Criminal Law Amendment Act has
not been judicially or even properly exercised. On behalf of the State, Mr. H.
R. Khanna contends that the powers of the Special Judge to grant pardon ire
untrammeled and that the sections 699 both in the Code and in the Criminal Law
Amendment Act bearing upon the tender of pardon with a view to securing
evidence are not conditioned by any of the considerations on which learned
Counsel on the other side rely. He also submits that the discretion is properly
exercised because Jagasia is an insignificant person compared with the
contractors and the superior 'Officers and they are mainly responsible for
defrauding the Government of much of the money alleged by the prosecution.
Before we discuss the validity or propriety
of the tender of pardon to Jagasia we shall refer briefly to the statutory
provisions on the subject of the tender of pardon. The topic of tender of
pardon to an accomplice is treated in the twenty-fourth chapter of the Code as
part of the general provisions as to inquiries and trials. Sections 337 to 339
and 339A contain all the provisions which refer to courts of criminal
jurisdiction established under the Code. The Special Judge created under the
Criminal Law Amendment Act, 1952 (Act 46 of 1952) is not one of them. For the
cases triable by Special Judges under the Criminal Law Amendment Act a special
provision is to be found in S. 8(2) of that Act, for tender of pardon to an
accomplice, as part of the procedure and powers of Special Judges. The section
is set out below*. The second sub-section necessarily differs in some respects
from the provisions of the Code because the procedure of trial before the
Special Judge is different, but on the tender of pardon by the Special Judge
the provisions of ss. 339 and 339A of the Code apply. The tender of pardon by
the Special Judge is deemed by fiction to be one tendered under s. 338 of the
Code for *"8. Procedure and powers of special judges-(1) A special judge
may take cognizance of offences without the accused being committed to him for
trial, and in trying the accused persons, shall follow the procedure prescribed
by the Code of Criminal Procedure, 1898 (Act V of 1898), for the trial of
warrant cases by magistrates.
(2) A special judge may, with a view to
obtaining the evidence of any person supposed to have been directly or
indirectly concerned in, or privy to an offence, tender a pardon to such person
on condition of his making a full and true disclosure of the whole
circumstances within his knowledge relating to the offence and to every other
person concerned, whether as principal or abettor, in the commission thereof;
and any pardon so tendered shall, for the purposes of sections 339 and 339A of
'the Code of Criminal Procedure, 1898, be deemed to have been tendered under
section 338 of that Code.
(3) Save as provided in sub-section (1) or
sub-section (2), the provisions of the Code of Criminal Procedure, 1898 shall,
so far as they are not inconsistent with this Act, apply to the proceedings
before a special judge; and for the purposes of the said provisions, the court
of the special judge shall be deemed to be a court of session trying cases
without a jury or without the aid of assessors and the person conducting a
prosecution before a special judge shall be deemed to be a public prosecutor.
(4) 700 Purposes of sections 339 and 339A.
That section is set out below**.
Mr. J. C. Bhatt contends on the basis of
differences between s. 8(2) of Act 46 of 1952 and ss. 337 and 338 of the Code
that the powers of the Special Judge are different and can only be exercised if
the prosecution moves first. We shall consider if the differences such as they
are lead to any such conclusion. To begin with it may be noticed that the
action of the Special Judge is deemed to be action under s. 338 of the Code for
purposes of ss, 339 and 339A which apply equally. It is not necessary to refer
to ss. 339 and 339A in detail. The former provides that where a pardon has been
tendered under s. 337 or 538 and the Public Prosecutor certifies that the
person who accepted it has not wilfully complied with the conditions, the
person may be tried for the offence for which pardon was tendered but not
jointly with the co-accused and the prosecution must in that trial prove that
the conditions had not been complied with.
The statement made by the person may be
tendered in evidence against him but a prosecution for the offence of giving
false evidence in respect of such statement is entertain able only with the
High Court's sanction. Section 339A lays down the procedure for trial. The sections
being applicable equally to tender of pardon under the Code and under the
Criminal Law Amendment Act, no inference can be drawn as suggested.
We next proceed to consider the differences
between s. 338 of the Code and s. 8 (2) of the Criminal Law Amendment Act.
The fiction in the latter part of s. 8(2) is
only this that the tender of pardon is to be deemed to be one under s. 338 for
purposes of applying ss. 339 and 339A. The whole of s. 338 is not applicable.
The power to order the Committing Magistrate or the District Magistrate to
tender pardon is not available to the Special Judge because the fiction does
not cover that part of s. 338. Similarly, the opening words of s. 338 "at
any time after the commitment" are inappropriate to trials before Special
Judges because there is no commitment. It is obvious that the powers of the
Special Judge commence only after he has taken cognizance of the case, and they
are available to' him throughout the trial. No conclusion such as is suggested
by counsel can be drawn.
We may now proceed to consider the
differences between s. 337 and s. 8(2). To do this we must look at some
sections of the Criminal Law Amendment Act. Special Judges are appointed by
**"338. Power to direct tender of pardon--At any time after commitment,
but before judgment is passed, the Court to which the commitment is made may,
with the view of obtaining on the trial the evidence of any person supposed to
have been directly or indirectly concerned in, or privy to, any such offence,
tender, or order the committing Magistrate or the District Magistrate to
tender, a pardon on the same condition to such person." 701 the State
Governments under s. 6 of the Criminal Law Amendment Act to try the following
offences, namely:(a) an offence punishable under S. 161, section 1 or section
165A of the Indian Penal Code (Act XLV of 1860) or sub-section (2) of section 5
of the Prevention of Corruption Act, 1947 (11 of 1947);
(b) any conspiracy to commit or any attempt
to commit or any abetment of any of the offences specified in clause (a).
Sub-section (1) of s. 337 provides that
"in the case of an offence triable exclusively by the High Court or Court
of Session or any offence punishable with imprisonment which may extend to
seven years or any offence under ss. 161, 165, 165A,... the District
Magistrate, a Presidency Magistrate, a Sub-divisional Magistrate or any
Magistrate of the first class may, at any stage of the investigation or inquiry
into or trial of the offence, with a view to obtaining the evidence of any
person supposed to have been directly or indirectly concerned in or privy to
the offence, tender a pardon to such person on condition of his making a full
and true disclosure of the whole circumstances within his knowledge relative to
the offence and to every other person concerned, whether as principal or
abettor, in the commission thereof". The proviso makes provision for
situations where the offence is under enquiry or trial. The section applies
when the offence is not before the Special Judge for trial. This will appear
presently. The remaining sub-sections 'of s. 337 are procedural. Sub-section
(1A) enjoins the recording of reasons for tendering pardon and the giving of a
copy on payment or free of cost to the accused. Subsection (2) lays down that a
person accepting pardon shall be examined as a witness in the Court of the
Magistrate taking cognizance of the offence and in the subsequent trial, if
any. Sub-section (2A) requires that if the Magistrate has reason to believe
that the accused is guilty of an offence, the accused shall be committed to the
Court of Session' Sub-section (2B) is an exception to subsection (2A). It
"(2B) In every case where the offence is
punishable under section 161 or section 165 or section 165A of the Indian Penal
Code or subsection (2) of section 5 of the Prevention of Corruption Act, 1947,
and where a person has accepted a tender of pardon and has been examined under
sub-section (2), then, notwithstanding anything contained in subsection (2A), a,
Magistrate shall, without making any further inquiry, send the case for trial
to the Court of the Special Judge appointed under the Criminal Law Amendment
Act, 1952." 702 Pausing here it may be mentioned that s. 7(1) and (3) of
the Criminal Law Amendment Act require that notwithstanding anything contained
in the Code of Criminal Procedure or in any other law, the offences specified
in s. 6(1) shall be tried by a Special Judge only and the Special Judge may
also try any other offence with which the accused may be charged under the Code
of Criminal Procedure at the same trial.
These provisions between them establish two
periods of time in relation to the tender of pardon in so far as offences
mentioned in ss. 6(1) and 7(1) and (3) of the Criminal Law Amendment Act are
concerned. Before the case reaches the Special Judge the provisions of s.
337(1) of the Code of Criminal Procedure apply at the stage of investigation or
inquiry. If any Magistrate therein mentioned tenders pardon and the person who
is tendered pardon is examined under subsection (2), the Magistrate must,
without making any further inquiry, send the case to the Special Judge, if the
offence is one of those mentioned in sub-section (2B) above set out.
In other words, just as under sub-section
(2A) the Magistrate has no option but to commit the accused to the Court of
Session or the High Court, under sub-section (2B), he has no option but to stop
further inquiry and send the case to the Special Judge. When the case is before
that Special Judge the tender of pardon can only be by the Special Judge and it
is deemed to be one under s. 338 for purposes of s. 339 and 339A as explained
above. The fiction is necessary because no committal proceeding is necessary
before a case is sent to a Special Judge. The words underlined by us in s.
337(1) cannot apply to tender of pardon by Special Judges as some of the words
of s. 338 do not apply to them.
It follows that the powers of the Special
Judge are not circumscribed by any condition except one. namely, that the
action must be with a view to obtaining the evidence of any person supposed to
have been directly or indirectly concerned in, or privy to an offence. The
pardon so tendered is also on condition of his making a full and true
disclosure of the whole circumstances within his knowledge relating to the
offence and to every other person concerned, whether as principal or abettor.
The disclosure must be complete as to himself and as to any other person
concerned as principal or abettor. There is no provision for the recording of
reasons for so doing, nor is the Special Judge required to furnish a copy to
the accused. There is no provision for recording a preliminary statement of the
There can be no doubt that the section is
enabling and its terms are wide enough to enable the Special Judge to tender a.
pardon to any person who is supposed to have been directly or indirectly
concerned in, or privy to an offence.
This must necessarily include a person
arraigned before him.
But it may be possible to tender pardon to a
person not so arraigned. The power so conferred can also be exercised at any
time after the case is received for trial and before its conclusion. There is
nothing in the language 703 of the section to show that the Special Judge must be
moved by the prosecution. He may consider an offer by an accused as in this
case. The action, therefore, was not outside the jurisdiction of the Special
Judge in this case.
There is no merit in the contention that s.
540 of the Code of Criminal Procedure governs either ss. 337 or 338 of the Code
or s. 8(2) of the Criminal Law Amendment Act. That section only confers powers
on the Court to summon material witnesses at any stage of any inquiry or trial
or other proceeding under the Code. That power is not to be confused with the
power to tender pardon to an accused. The considerations for summoning
witnesses as court witnesses are somewhat different from the considerations on
which a tender of pardon should be made. It is no doubt necessary to bear in mind
the interests of justice in either case but there the common factor ceases and
other considerations arise. It is not, therefore, possible to read s. 540 with
ss. 337 and 338 of the Code or with S. 8(2) of the Criminal Law Amendment Act.
The next question is whether the Special
Judge acted with due propriety in his jurisdiction. Here the interests of the
accused are just as important as those of the prosecution. No procedure or
action can be in the interest of justice if it is prejudicial to an accused. There
are also matters of public policy to consider. Before the Special Judge acts to
tender pardon, he must, of course, know the nature of the evidence the person
seeking conditional pardon is likely to give, the nature of his complicity and
the degree of his culpability in relation to the offence and in relation to the
co-accused. What is meant by public policy is illustrated. by a case from
Dublin Commission Court (Reg v. Robert Dunne, 5 Cox Cr. cases 507) in which
Torrens, J. on behalf of himself and Perrin, J.
observed as follows:
"From what I can see of this case, this
witness Bryan, who has been admitted as an approved by the Crown is much the
more criminal of the two on his own showing............ I regret that this
witness, Bryan, has been admitted as evidence for the Crown and thus escaped
being placed upon his trial. It is the duty of magistrates to be very cautious
as to whom they admit to give evidence as approvers, and they should carefully
inquire to what extent the approver is mixed up with the transaction, and if he
be an accomplice, into the extent of his guilt..............." 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 704 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 interest of justice, the Special Judge
must have material before him to show what the nature of that testimony will
Ordinarily it is for the prosecution to ask
that a particular accused, out of several may be tendered pardon.
But even where the accused directly applies
to the Special Judge, he must first refer the request to the prosecuting
agency. It is not for the Special Judge to enter the ring as a veritable
director of prosecution. The power which the Special Judge exercises is not on
his own behalf but on behalf of the prosecuting agency and must, therefore, be
exercised only when the prossecuting joins tendered pardon because it does not
need approver's testimony. It may also not like the tender of pardon to the
crime or the worst offender. The proper course for the Special Judge is to ask
for a statement from the prosecution on the request of the prisoner. If the
prosecution thinks that the tender of pardon will be in the interests of a
successful prosecution of the other offenders whose conviction is not easy
without the approver's testimony, it will indubitably agree to the tendering of
pardon. The Special Judge (or the Magistrate) must not take on himself the task
of determining the propriety of tendering pardon in the circumstances of the
case. The learned Special Judge did not bear these considerations in mind and
took on himself something from which he should have kept aloof. All that he
should have done was to have asked for the opinion of the public prosecutor on
the proposal. But since the Public Prosecutor, when appearing in the High
Court, stated that the prosecution also considered favourably the tender of
pardon to Jagasia we say no more than to caution Magistrates and Judges in the
matter of tender of pardon silo motu at the request of the accused. This
practice is to be avoided.
Since the prosecution in this case also wants
that the tender of pardon be made it is obvious that the appeal must fail. It
will accordingly he dismissed.