S.K. Desai, J.
1. This revision application is preferred against the decision give by the learned Special Judge, Pune, below application Ex. 128 in Special Case No. 10 of 1978. A few facts may be stated :
2. The allegation of the prosecution pertains to October 1973 and broadly speaking it is averred that a number of accused persons entered into a conspiracy and misappropriated certain bran bags. Charges accordingly are under section 120B of the Indian Penal Code read with sections 468 and 477A of the Indian Penal Code and also under section 5 of the Prevention of Corruption Act. The charge-sheet was filed before the Special Judge, Pune, on 10th July, 1978 and on 12th September, 1980 as many as 36 charges were framed by the said Special Judge. It may be mentioned that out of these charges accused No. 13 who was ultimately granted conditional pardon and which order is impugned before me, figures in charges 2, 3, 4, 6, 14, 15, 23, 28, & 29 and 35. It would appear that he is a common factor to the several charges as he was the common Secretary to several co-operative societies.
3. 16th March, 1981 was the day fixed for the commencement of the trial and on that day accused No. 1 made an application that he should be granted conditional pardon and offered to make full and true disclosure. This, however, was opposed on behalf of the State and an order was passed by the learned Special Judge rejecting the application. The trial thereafter commenced properly speaking on the 17th of March, 1981 and by 24th March as many as fifteen witnesses had been examined. On 24th March, 1981 accused No. 13 Khilare made an application for grant of conditional pardon. It is this application which was numbered as Exh. 128. The impugned order states that the application was under section 8(2) of Criminal Law Amendment Act read with section 307 of the Criminal Procedure Code. The order further states that the A.P.P. had consented to accepting the accused as approver and giving evidence in support of the prosecution case. However, naturally the application was vehemently opposed on behalf of the other accused persons. After considering their objections the learned Special Judge has on 25th March, 1981 made the usual conditional order granting pardon to accused No. 13 on his making a full and true disclosure of the whole of the circumstances within his knowledge relating to the offences charged against him and the other accused persons. It is this order which is impugned in the present application. It may be mentioned that the proceeding before this Court ought to have been numbered as a criminal application and not a criminal revision application.
4. Mr. Chitnis on behalf of the petitioners submitted that it was improper on part of the Special Judge to grant conditional pardon to this accused as he was the main person concerned in the conspiracy which will be borne out by a perusal of the several charges earlier indicated. According to his submission, further, the learned Judge was in error in observing that only formal witnesses had been examined and that the trial was at an initial stage. According to Mr. Chitnis as many as fifteen witnesses had been examined and that the evidence given by them, the procedure proved by them and the documents produced by them were very important. He showed that at least as far as one of the witnesses P.W. 5 (accused No. 13) had taken part in the cross-examination. In the third place it was submitted that granting of pardon at late stage must go to prejudice the other accused and this aspect of the matter has not been properly appreciated or considered by the learned Special Judge. Finally it was pointed out that there was a very important omission inasmuch as the Special Judge has not passed any order directing that copy of Khilare's statement recorded by the police ought to be supplied to the other accused in good time before the further hearing started which alone would enable these accused to properly cross-examine Khilare. It seems that Khilare's confessional statement has already been recorded, but it is obvious that furnishing copy of the same to the accused persons will not really assist their defence.
5. In support of his several submissions earlier indicated Mr. Chitnis relied very strongly on Pascal Fernandes v. State of Maharashtra, : 1968CriLJ550 . He took me through the facts of the said matter set out in paragraph 3 of the report and various observations subsequently found in paragraphs 11,14 and 15.
6. It would appear from a proper perusal of the said Supreme Court case that the Special Judge there had act on his own even without making a reference of the application for grant of pardon to the prosecuting agency .The case before the Supreme Court like the present case was one where the one of the accused had made a direct application to the Judge. What the learned Judge is required to do is clearly indicated in paragraph 15 of the report. It seems clear that what the Supreme Court has indicated is that prima facie it is for the prosecuting agency to determine whether the accused applying for pardon is a person whose evidence will assist the prosecution case and whether in the facts and circumstances of the case he ought to be granted pardon. The State, according to the Supreme Court, may not desire that such applicant should be granted pardon because he may be the brain behind the crime or the worst offender. The Supreme Court, however, has not observed that such person ought never to be considered for the grant of pardon. In an appropriate case even the brain of the common factor behind the conspiracy may be required to be granted conditional pardon because his disclosure will be of assistance to the prosecution in bringing home the charge to the other accused. No hard and fast rule can be laid down. In our case both before the trial Court (i.e. the special Judge) and in this Court the prosecuting agency has clearly indicated that it would desire to have Khilare's evidence before it in order to prove the conspiracy and to bring home the charge to the other accused.
7. To a certain extent Mr. Chitnis is right and this is borne out by the perusal of the charges that Khilare is a common factor to the alleged fraud concerning several co-operative societies. On the other hand, it has to be realised that it is only such a person who can assist the prosecution in bringing home the charges as against the Chairman and the Vice Chairman of the several co-operative societies or the other office bearers. It is experience of this Court that the co-operative movement is riddled by frauds committed mainly by the office bearers. However, such charges have often proved very difficult to prove. It has to be realised that in the instant case in addition to the office bearers of co-operative societies there is also a charge against certain Government servants for facilitating certain stages of the conspiracy. It is ultimately for the prosecution to determine whether the evidence given by the applicant is going to be of material assistance in proving the charges. In this case it has decided, despite the major role alleged against accused No. 13 in the charges, that he ought to be given pardon. All the points urged by the accused persons seem to have been properly considered by the learned Special Judge. It is true that in all cases in which such orders are passed some prejudice is likely to be caused to the accused. Pardon is granted to an accused person to prove the case properly against the other accused persons. That by itself cannot be a factor for quashing the order granting pardon. The question, however, is whether the application made at such a belated stage would show that the same is not bona fide.
8. Mr. Chitnis has briefly taken me through the evidence recorded during the seven days before the application Ex. 128 was made and I substantially agree with the learned Special Judge that it was more or less formal evidence. It is undoubtedly very important to have the formal evidence on record, but no real prejudice in the sense in which the term has been used by the Supreme Court can be caused to these accused persons by a consideration of the application at that stage.
9. In Pascal Fernandes' case the trend of the Supreme Court decision seems to be that ultimately the Special Judge must defer to the view of the prosecuting agency patently and obviously the decision of the prosecuting agency is perverse.
10. Mr. Chitnis is right when he points out one lacuna in the order passed. He points out that in Pascal Fernandes' case the Special Judge had directed the prosecution to give to the accused a copy of the statement of the accused, who was granted pardon, recorded under section 161 of the Cri.P.C. No such order is to be found in the order passed by the Special Judge. However, no special directions are required to be given. I, however, make it clear that it is for the accused person to make necessary application to the Special Judge which must be considered on its merits and in accordance with law. It would prima facie appear to me, though I refrain from making a final observation, that once accused No. 13 is not arranged as an accused person his earlier statement recorded by the police is required to be given to the other accused to facilitate their defence. Merely giving them a copy of the confessional statement would seem to serve no purpose.
11. With these observations the rule will stand discharged and the impugned order is confirmed. The stay initially granted on 6th April, 1981 will stand vacated.
12. On Mr. Chitnis's application, I direct that the trial will commence after 3rd August, 1981. Record and proceedings to be sent back forthwith When this direction is given viz. that the trial will commence only after 3rd August, 1981 it must not be taken to mean that the Special Judge is prevented from giving necessary interlocutory directions e.g. regarding furnishing of the statement of accused No. 13 recorded by the police to the other accused persons or from issuing witnesses summons or other summonses for procuring the attendance of the accused persons on the date fixed for trial.