Report No. 41
24.11. Section 33.-su.-section (1) analysed.-
Section 337 deals with the tender of pardon to an accomplice. Su.-section (1), which is the main provision and a lengthy and complicated one, lays down (i) the offences in respect of which pardon can be tendered; (ii) the Courts which can tender pardon; and (iii) the stage at which pardon can be tendered.
(i) The offences in respect of which the power can be exercised fall in three groups, namely.-
(a) any offence triable exclusively by the High Court or Court of Session;
(b) any offence punishable with imprisonment which may extend to seven years; and
(c) any of the offences under eight specified sections of the Indian Penal Code.
(ii) The Magistrates who can tender pardon are District Magistrates, Presidency Magistrates, Su.-Divisional Magistrates and Magistrates of the first class.
(iii) Pardon can be tendered at any stage of (a) investigation into the offence; (b) inquiry into the offence; or (c) trial of the offence.
Under the proviso, however, where the offence is under inquiry or trial, no Magistrate of the first class other than the District Magistrate, can exercise the power unless he is the inquiring or trying Magistrate, and where the offence is under investigation no such Magistrate can exercise this power unless he has jurisdiction in the place where the offence might be inquired into or tried and sanction of the District Magistrate has been obtained. In other words, while the power of the District Magistrate is unlimited as regards the stage, any other first class Magistrate can tender pardo.-
(a) during investigation, only if he has territorial jurisdiction in regard to the offence and the sanction of the District Magistrate has been obtained, and
(b) during inquiry or trial, only if he is the inquiring or trying Magistrate.
24.12. Changes in the section.-
It may be noted that the section originally enacted in 1898 was different in all these respects. The power was then vested in the District Magistrates, Presidency Magistrates and First Class Magistrates inquiring into the offence and any other Magistrate who had obtained the sanction of the District Magistrate. As regards the offences, it was confined to those triable exclusively by the High Court or Court of Session. Lastly, as regards the stage of tender of pardon, it did not make elaborate provisions as at present dealing separately with investigation, inquiry and trial. During the last 70 years, the section has been made much more elaborate, and as regards offences, its scope has been enlarged more than once.
In 1923, offences punishable with imprisonment which may extend to 10 years, an offence punishable under the latter part of section 211, and the offences under sections 216A, 369, 401, 435 and 477A of the Penal Code were added. Then, in 1955 the limit of 10 years' imprisonment was reduced to 7 years, and the offences under sections 161, 165 and 165A of the Penal Code were included. Apparently by oversight, while the reference to section 211 was omitted in 1955 as no longer necessary, reference to sections 216A, 369, 401, 435 and 477A were kept, though all these offences are punishable with imprisonment which may extend to 7 years.
24.13. A decision of the Supreme Court.-
The question whether an offence under section 409 of the Penal Code, which is punishable with imprisonment for life or with imprisonment which may extend to 10 years and is triable by the Court of Session, a Presidency Magistrate or a Magistrate of the first class, was an offence in respect of which pardon could be tendered under section 337 (as it stood before the amendment of 1955), was raised before the Supreme Courts. The argument was that, where an offence was not exclusively triable by the Court of Session, pardon could be granted only if it was punishable with imprisonment up to 10 years, but not if a higher punishment like imprisonment for life was provided for the offence.
The Supreme Court repelled this contention, observing that the very object of section 337 was to allow pardon to be tendered where a grave offence was alleged to have been committed by several persons so that with the aid of the evidence of the approver the offence could be brought home to the rest. The gravity of the offence was, of course, to be determined with reference to the sentence awardable for the offence. The State Counsel's suggestion was that section 337 could be reasonably interpreted to mean that even where the offences are punishable with imprisonment exceeding 10 years, pardon could be granted.
The Supreme Court, while observing that this interpretation might fulfil the object of the section, namely, to embrace within it the graver offences, stated that it wished to express no opinion on it. It held that, since the alternative punishment for the offence under section 409 was imprisonment which may extend to 10 years, and since section 337 did not expressly say that the only punishment should be imprisonment which may extend to 7 years, the case was covered by section 337.
1. State v. Ganeshwara Rao, AIR 1963 SC 1850.
24.14. Amendment to remove ambiguity.-
There is, thus, an ambiguity in the expression "any offence punishable with imprisonment which may extend to seven years". We recommend that the ambiguity should be removed by adding the words "or with a more severe sentence", so as to include offences for which the maximum term of imprisonment prescribed in the Penal Code or other law is more than 7 years (e.g., 10 years or 14 years) or imprisonment for life.
24.15. Offences triable by Courts of Special Judges.-
Offences punishable under sections 161, 165 and 165A of the Penal Code were brought within the scope of section 337 of the Code of Criminal Procedure (Amendment) Act, 1955. The Criminal Law Amendment Act, 1952 which provided for the appointment of Special Judges equal in rank to Sessions Judges, had made these offences and the offence punishable under su.-section (2) of section 5 of the Prevention of Corruption Act, 1947, triable exclusively by the Courts of such Special Judges.
When this Act was subsequently amended in 1955 by the inclusion of offences under sections 162, 163 and 164 of the Penal Code within this list, there was no corresponding amendment of section 337(1) of the Criminal Procedure Code. These offences are not in any way different from the offences punishable under sections 161 and 164 of the Penal Code, particularly in regard to the desirability of obtaining the evidence of an approver. We, therefore, recommend that a uniform principle may be adopted, and that all offences which are triable exclusively by the court of a Special Judge appointed under the Criminal Law Amendment Act, 1952, may be brought within the scope of section 337(1) of the Code.
24.16. Offences to which section 337(1) should apply.-
As indicated above,1 the reference to sections 216A, 369, 411, 435 and 477A of the Indian Penal Code is superfluous, as the offences under these sections are punishable with imprisonment for seven years. The reference to the High Court in the opening part of section 337(1) is also unnecessary, in view of our recommendation for abolition of the ordinary original criminal jurisdiction of all High Courts. We recommend that this section should apply to any offence triable exclusively by the Court of Session or by the Court of a Special Judge appointed under the Criminal Law Amendment Act, 1952, and to any offence punishable with imprisonment which may extend to seven years or with a more severe sentence.
1. See para. 24.2 above.
24.17. Offences against customs and foreign exchange laws.-
In a recent case1 which came up before the Supreme Court in appeal, a woman who acted as a carrier in a conspiracy to smuggle gold into India had, in her statements made to the customs officials investigating the case, admitted her role as a participant in the crime. But, instead of being included in the array of accused persons and sent up for trial, she was examined as a witness against her former associates. The question arose whether she was competent witness. While holding that she was, the Supreme Court obsenied
"It is, however, necessary to say that where section 337 or 338 of the Code applies, it is always proper to invoke those sections and follow the procedure there laid down. Where these sections do not apply, there is the procedure of withdrawal of the case against an accomplice. To keep the sword hanging over the head of an accomplice and to examine him as a witness is to encourage perjury. Perhaps it will be possible to enlarge section 337 to take in certain special laws dealing with customs, foreign exchange etc. where accomplice testimony will always be useful and witnesses will come forward because of the conditional pardon offered to them."
We have given our respectful consideration to this observation of the Supreme Court but it does not seem practicable to select from among the large number of special laws creating soci.-economic offences those which are sufficiently grave to be brought within the scope of section 337. The result of such inclusion will be that every case pertaining to such an offence where tender of pardon is made, will have to be tried by the Court of Session which may not be feasible.
1. Laxipat Choraria v. State of Maharashtra, AIR 1968 SC 938 (945).
24.18. Section 337(1) and Magistrates empowered to grant pardon.-
The next question to be considered is whether, in view of separation, the power to tender pardon under this section should be given to Judicial Magistrates or to Executive Magistrates, or to both to be exercisable at different stages. It is clear that when the stage of inquiry or trial has been reached, the power should be exclusively with the Judicial Magistrates and the Executive Magistrates need not come into the picture. We are of the opinion that the power to grant pardon even at the stage of investigation should be confined to Judicial Magistrates as the matter relates primarily to prosecutions in courts.
We propose that at this stage the power should be with the Chief Judicial Magistrate of the district. Once the inquiry or trial has commenced, the Magistrate holding the inquiry or trial would normally be exercising the power to tender pardon but the Chief Judicial Magistrate should also have the power. Accordingly, we propose that the Magistrate competent to tender pardon under section 337 should b.-
(a) a Presidency Magistrate or Chief Judicial Magistrate, at any stage of the investigation, inquiry or trial, and
(b) a Judicial Magistrate of the first class, while inquiring into or trying an offence, at any stage of the inquiry or trial.
24.19. Section 337(1A).-
A few minor changes are necessary in su.-section (1A). It is desirable to provide for a clear record of not only the reasons for tendering pardon but also of the fact whether the tender was accepted or not accepted. Secondly, there is no justification for the proviso which requires the accused to pay for a copy of the record unless the Magistrate for special reason exempts him from payment. The proviso should be omitted.
24.20. Section 337(2A).-
Under su.-section (2A) every approver's case whether or not it relates to an offence triable by the Court of Session has to be committed to that Court when the Magistrate, after recording the evidence of the approver under su.-section (2) is satisfied that there are reasonable grounds for believing that the accused is guilty of an offence. Su.-section .(2B), however, lays down a different procedure in cases where the offence is triable by the Court of Special Judge appointed under the Criminal Law Amendment Act, 1952. In view of the abolition of commitment proceedings, we consider that the procedure should be made uniform and there is no need to require the Magistrate to scrutinise the evidence of the approver and that of the other witnesses produced by the prosecution. It is desirable that every approver's case should be committed to the Court of Session whether or not the case is exclusively triable by that Court.