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Maosi Nainsi JaIn and ors. Vs. State of Maharashtra - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Judge
Reported in1985CriLJ1818; 1985MhLJ469
AppellantMaosi Nainsi JaIn and ors.
RespondentState of Maharashtra
Excerpt:
.....officer should exercise his power or discretion judiciously and should be free of motive. some kind of inbuilt safeguard is available to the accused in the cases where the magistrate directs investigation under section 156 (3) of the code by taking recourse to the provisions of section 438 of the code by approaching the court of session or the high court for such relief. thus, during the course of investigation of a criminal case, an accused is not remediless and that would further buttress the above view. [jagannath singh v dr. ajay upadyay & anr 2006 cri lj 4274; 2006 (5) air bom r held per incuriam]. - not satisfied with the order the state of maharashtra preferred a revision application being revision application no. c, it would be better to consider the decisions first. the..........him as a witness.3. the application came to be resisted on behalf of the applicants and other accused persons. the chief judicial magistrate by his order dt. 30-3-1982 rejected the application. not satisfied with the order the state of maharashtra preferred a revision application being revision application no. 34 of 1984 before the additional sessions judge, yavatmal, who by his order dt. 16-8-1984 while exercising revisional jurisdiction reversed the order passed by the trial magistrate and granted pardon to accused no. 13 ajaykumar and remanded the matter back to the court of chief judicial magistrate for taking further steps. it is this order of the additional sessions judge, yavatmal, which is impugned in this revision.4. relying on the decisions in krishna lal gulati v. state.....
Judgment:
ORDER

Patel, J.

1. The applicants, who are original accused Nos. 1 to 6, 12 and 14. along with other accused were charge-sheeted under Sections 420, 467, 468, 471 and 120 of the Penal Code. It is alleged that under the Employment Guarantee Scheme the officers used to issue coupons for purchase of foodgrains to the labourers working under the scheme and the said labourers were required to give those coupons to fair price shop and the fair price shop used to issue foodgrains at concessional price. The fair price shop-keepers were to tender those coupons to the Treasury and the Treasury Officer in turn used to pay the amounts of the said coupons to the fair price shop-keepers. It is further alleged by the prosecution that the applicants and other accused, who are mostly fair price shopkeepers, conspired together including one Ajaykumar, who is accused No. 13 and prepared faked coupons which were tendered to the Government Treasury and the amounts were collected on such coupons and thereby they have cheated the State Government. Upon acquiring knowledge about the said cheating an investigating agency took cognizance of the offence and investigated the same, with the result that the applicants along with other accused were charge-sheeted for the offences mentioned above.

2. The criminal case was fixed for evidence, but on 3-2-1982 an application came to be filed on behalf of the State alleging therein that accused No. 13 Ajaykumar is a person directly, connected with the above referred offences and as such his evidence was necessary for adjudication of the matter and, therefore, the Chief Judicial Magistrate should grant pardon to Ajaykumar as provided under Section 306 of the Criminal P.C. and the prosecution be permitted to examine him as a witness.

3. The application came to be resisted on behalf of the applicants and other accused persons. The Chief Judicial Magistrate by his order dt. 30-3-1982 rejected the application. Not satisfied with the order the State of Maharashtra preferred a revision application being Revision Application No. 34 of 1984 before the Additional Sessions Judge, Yavatmal, who by his order dt. 16-8-1984 while exercising revisional jurisdiction reversed the order passed by the trial Magistrate and granted pardon to accused No. 13 Ajaykumar and remanded the matter back to the Court of Chief Judicial Magistrate for taking further steps. It is this order of the Additional Sessions Judge, Yavatmal, which is impugned in this revision.

4. Relying on the decisions in Krishna Lal Gulati v. State and The Public Prosecutor, High Court of A.P. Hyderabad v. L.V. Ramana Reddy 1977 Cri LJ 174, it was initially contended by Shri V.R. Manohar, the learned Counsel for the applicants, that the order passed under Section 306 of the Criminal P.C. by the Chief Judicial Magistrate was an interlocutory order and the revision preferred by the State against such interlocutory order is not maintainable under Section 397(2) of the Criminal P.C. This argument was repelled by Shri M. P. Badar, the learned Assistant Government Pleader for the State, relying upon the decision of the Supreme Court in State of Uttar Pradesh v. Kailash Nath : 1973CriLJ1196 and submitted that the order passed under Section 306(1) was revisable.

5. Since the parties have relied upon the cases cited supra for determining whether the revision is permissible against the order passed by the Magistrate under Section 306 of the Criminal P.C, it would be better to consider the decisions first. In the case of Krishna Lai Gulati it was observed that the order extending pardon is in relation to trial and even after the conclusion of the trial in an appeal it is open to the accused person to question the correctness and impropriety of the pardon extended to a person and it is also open to challenge the statement of approver and the rights of the parties are not conclusively decided, with the result that the order under Section 306(1) of the Criminal P.C. is an interlocutory order. In the case of the Public Prosecutor, High Court of Andhra Pradesh 1977 Cri LJ 174 it is held that the order under Section 306 declining to tender pardon is an interlocutory order and the revision is not maintainable. It is thus apparent that these two authorities do support the contention raised on behalf of the applicants.

6. As against the two authorities discussed above, the State of Maharashtra has relied on the decision of the Supreme Court in the case of State of Uttar Pradesh v. Kailash Nath : 1973CriLJ1196 (cited supra). This authority cannot be of any assistance inasmuch as there was no provision in the old Criminal P.C. analogous to Section 397(2) of the present Code barring revision against interlocutory order. However, this Court had an occasion to consider the nature, extent and scope of the phrase 'interlocutory order' referred to in Section 397(2) of the Criminal P.C. in Hasmukh J. Jhaveri v. Sheela Dadlani : (1981)83BOMLR196 . It was observed in that case Cri LJ 962:

the fact that the main proceeding is kept alive does not ipso facto give a stamp to several such orders as 'interlocutory order'. Consequently it is not permissible to equate the expression 'interlocutory order' as invariably being the converse of the term 'final order'. An order of moment would obviously be lifted out of the sweep of the said terminology. Irrespective of the order bearing stamp of finality, there may be an intervening stage which can be called as 'intermediate order' which neither gives the finality to the proceeding nor is purely interim or temporary and as such is not an interlocutory order, but would fall in between and in certain cases such order can be said to be not 'interlocutory'. An order which (a) decides or (b) even touches the important rights or liabilities of the parties; cannot be said to be interlocutory. An order which (a) substantially affects the rights of parties; or (b) decides certain rights of the parties cannot be termed as 'interlocutory'. So also, an order which (a) adjudicates; or (b) even affects (i) either the rights of the parties; (ii) even any particular aspect of the trial or the proceeding cannot be also termed as 'interlocutory order'.

7. It is apparent from these observations that an order which affects the rights of the parties or even any particular aspect of the trial, such order cannot be termed as 'interlocutory order'. In the case at hand the application (Exh. 15) was moved by the prosecution to secure the evidence of approver by tendering pardon and on its rejection by the trial Court, in my opinion, not only the right of the prosecution to secure evidence is affected, but the order also affects the particular aspect of the trial. In this view of the matter, I would prefer to follow the decision of this Court and hold that the order passed under Section 306 is not an interlocutory order and the revision against such an order is, therefore, maintainable. With due respect, I cannot agree with the view expressed either in the case of Krishna Lai Gulati or Public Prosecutor, High Court of Andhra Pradesh 1977 Cri LJ 174 (cited supra), even though both the cases are directly on the point.

8. It was next canvassed on behalf of the applicants that the respondent State has not explained the long delay in moving the Court for tendering pardon to accused No. 13 Ajaykumar and this delay is in itself fatal to the application. The statement of Ajaykumar was admittedly recorded on 4-5-1979 and also on 18-7-1979, whereas the application under Section 306 of the Criminal P.C. (Exh. 15) was moved on 3-2-1982 after the investigation was closed, the charge-sheet was filed and charges were framed, but before the evidence could commence. Section 306(1) provides that the Magistrate trying the offence can tender a pardon at stage of the inquiry or trial to a person on condition of his making a full and true disclosure of the whole of the circumstances within his knowledge relative to the offence. Therefore it was open to the prosecution to move the application at any stage of the trial. Admittedly the application was moved before the evidence could be recorded and that stage, in my opinion, was quite proper. In any eventuality the factor of delay may be relevant for consideration of grant or refusal of the application, but it is not a governing factor. As discussed above, the application was moved at an appropriate stage of the trial, though it may appear to be delayed. There is, therefore, no force in the submissions made on behalf of the applicants.

9. It was next submitted on behalf of the applicants that the most essential ingredient of the offence is the intention or knowledge and on perusal of the two statements of Ajaykumar, it will go to show that he had neither any intention or knowledge in committing various alleged offences. It was hence contended that the two statements recorded under Section 164 of the Criminal P.C. of accused No. 13 Ajaykumar are not confessional in nature and as such the statements cannot help the prosecution to support its request to tender pardon to the accused. In other words, what is sought to be contended is that the pardon could be tendered only to a person who is an accomplice or who has implicated himself in the offence.

10. For granting permission under Section 306( 1) of the Criminal P.C. it is not a pre-requisite condition that the statement of a person on whose behalf pardon is sought must be in the nature of confession or must implicate himself in the offence. The wordings of Section 306(1) of the Criminal P.C. do not contemplate that the permission to tender pardon must only relate to a person who is an accomplice or has implicated himself in the offence. What the section requires is to obtain statement of any person who is supposed to be directly or indirectly concerned in or privy to the offence and such a person can be granted pardon on condition of his making a full and true disclosure of whole of the circumstances within his knowledge relative to the offence. I am supported in my view by a decision in Awatar Singh v. State of Punjab , wherein is laid down that according to Section 337 of the old Criminal P.C., which contains identical provision as in Section 306 of the new Criminal P.C., any person who is supposed to have been directly or indirectly concerned in or privy to the offence mentioned in the said section can be granted a pardon on condition of his making a full and true disclosure of the whole of the circumstances within his knowledge relative to the offence. It is not necessary that he should be an accomplice or that he should have implicated himself in the offence. The other decision which can be relied upon is Sumermal v. Union Territory of Tripura. It is observed in that case that to enable a Magistrate to tender pardon to a person under Section 337 (old Criminal P.C.), it is not necessary that the person should admit his complicity in the offence. Section 337 is intended to give pardon to any person who is supposed to have been directly or indirectly concerned in or privy to the offence. In my view, therefore, the. submission made on behalf of the applicants is devoid of any substance and cannot be accepted.

11. The learned Counsel for the applicants then invited my attention to the decision in Kashinath v. State of Mysore which lays down that the exercise of the power to tender pardon rests on judicial discretion and the Magistrate or the Judge should proceed with great caution and on sufficient grounds, recognising the risk which the grant of a pardon involves of allowing an offender to escape just punishment at the expense of the other accused in the same judgment relying upon another authority in Ramchand v. State it was observed that the Magistrate cannot be said to have exercised a sound discretion in tendering pardon to one of the accused, if besides the approver, there are as many as six eye-witnesses to the crime who had given evidence. It was hence contended that the discretion exercised by the trial Magistrate could not have been interfered with by the Additional Sessions Judge, Yavatmal, in revisional powers and particularly when large number of witnesses were cited by the prosecution to prove its case.

12. The two cases cited above give only some of the factors which the Court before whom the application under Section 306 is made should bear in mind while exercising the discretion for granting or refusing pardon asked for by the prosecution. However, these factors are neither condition precedent or prerequisite for exercise of discretion by the trial Magistrate or Judge for deciding the application under Section 306 of the Criminal P.C. Those are also not ingredients contemplated by the wordings of that section. Availability of other evidence-and in abundance is no criteria by itself to reject the application. The prosecution has to prove its case and it is for the prosecution to decide which evidence should be led and in what manner and this right cannot be negatived merely on the ground that other evidence is available at least at this stage of the trial.

13. I am refraining myself from expressing any opinion on other points which deal with appreciation of evidence that is likely to be led by the prosecution to prove its case or by the defence to negative it, inasmuch as the lower Court is likely to be influenced wittingly or unwittingly by the expression of my opinion in the matter. Suffice it to say that the Chief Judicial Magistrate was not right in exercising his discretion by rejecting the application (Exh, 15) out-right for the reasons narrated by me in the order. The learned Additional Sessions Judge, Yavatmal, was perfectly justified in setting aside the order of the Chief Judicial Magistrate in exercise of his revisional jurisdiction.

14. In the result, the criminal revision application is devoid of any merit and is accordingly rejected.


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