D.N. Jha, J.
1. This Criminal Revision has been directed against the order dated 10-3-75 passed by Sri Chaman Singh, Sessions Judge, Gonda in Sessions Trial No. 171 of 1974, State v. Krishna Lal Gulati and Ors.
2. The brief facts are that on 25-3-1969 one Mulk Raj Gulati had lodged a first information report at 6-50 P.M. mentioning that his son Tinku aged about 5 or 6 years had been missing since 2 P.M. on that date. It may be mentioned that no one was named as an accused in the said case. On 26-3-1969 the body of Tinku was recovered from a well and was sent for post-mortem examination. The post-mortem was conducted by Dr. N. N. Dixit, Medical Officer, District Hospital, Gonda on 26-3-1969. The investigation was conducted by Sri Prem Narain Singh, Station Officer, Balrampur and on 18-7-1969, he submitted a report. This report was accepted on 8-7-1970 by the Judicial Officer, Balram-pur.
3. The complainant Sri Mulk Raj Gulati made a complaint to the higher authorities about the investigation and orders were passed by the District Magistrate and conveyed by the Superintendent of Police to C.I.D. to reinvestigate. The Investigating Officer of Criminal-Investigation Department moved an application for permission to reinvestigate the case on 25-11-1972. The Judicial Officer, Balrampur permitted reinvestigation vide his order dated 25-11-1972.
3-A. It is stated in this revision petition that Sri Mulk Raj Gulati father of the deceased, was an influential and well to do person ,and after a lapse of over four years was able to concoct evidence of certain persons. The statement of Harihar Narain Misra was recorded under Section 164, Cr. P.C. On completing the investigation a charge-sheet under Sections 302/201/120-B, I.P.C. was filed by the Police against the applicant Krishna Lal Gulati, Dwarka Prasad Pandey and others. On 4-7-1974 the Chief Judicial Magistrate, Gonda committed all the four persons to the Court of Session for the said offences. Dwarka Prasad Pandey, one of the co-accused, applied before the learned Sessions Judge, Gonda for pardon and to be made an approver, Sri Chaman Singh, learned Sessions Judge recorded his statement on 27/28-1-1975. It is alleged that Dwarka Prasad Pandey all along was assisted by the Public Prosecutor in making a tutor- ed statement. The present applicant filed objections against the prayer of Dwarka. Prasad Pandey to be granted pardon and to be made an approver. The learned Sessions Judge, after hearing the arguments, tendered pardon to Dwarka Prasad Pandey by means of the impugned order. It is in these circumstances that this revision has been filed before this Court.
4. A counter affidavit has been filed on behalf of the State and the revision petition has been opposed. It is stated in the counter-affidavit that Mulk Raj Gulati had been carrying on business of rations and had also a transport agency adjacent to his shop. He also resided close to his ration shop. The boy Tinku used to sit at times with his father at the shop. On 25-3-1969 at about 2 P. M. a truck loaded with goods arrived from Lucknow and the goods were to be stocked in the godown. Tinku deceased came down from the upper storey and bunches of keys were given to the Palledars which were picked up by the boy and he went to the shop by a shorter route. After a short while Mulk Raj himself went to the shop to check the goods and he asked the Palledars to accommodate the goods in the other adjacent shop. The Palledars said that the keys were with the deceased Tinku who had not yet turned up. This caused anxiety and a search was made for Tinku but no clues could be had and ultimately a report was lodged as alleged. Crime No. 92 under Section 363, I.P.C. was registered and Sri Prem Narain Singh, Station Officer started the investigation. Next day at 8 A.M. as described the body of Tinku was found lying in the well which was taken out. The inquest report was prepared and the body was sent along with papers for post-mortem. The complainant went to the Civil Surgeon who had been performing post-mortem examination on another body and requested him to perform the post-mortem of the body of the boy that very day. The Civil Surgeon refused to do it on that day as he was to go to the fair at Tulsipur. The relations of the deceased went to the District Magistrate and extended the similar request. The District Magistrate phoned the Civil Surgeon to perform the postmortem that very day. It is said that this irritated the Civil Surgeon and he performed the post-mortem examination with great reluctance and under annoyance. In the post-mortem examination it was mentioned that no definite opinion regarding the cause of death could be given. Viscera had been preserved, The viscera was also sent to Chemical Examiner and he reported on 8-7-1969 that no chemical poison could be detected. Prem Narain Singh concluded the investigation and submitted a final report. It is asserted that the complainant was not satisfied with the investigation. A communal tension had developed during the Moharram and, therefore, the C.I.D. also checked up the investigation. It is admitted that the report was accepted on 8-7-1969 and it is said that on representation, the higher authorities, ordered for reinvestigation and for which permission was obtained from the court concerned. The investigation was pursued after obtaining the permission, It is alleged that applicant Krishna Lal Gulati is the real nephew of the complainant Mulk Raj Gulati. Krishna Lal Gulati formerly used to reside at Balrampur and had obtained licence for a ration shop in the name of his wife. Mulk Raj Gulati, the complainant, had got that licence cancelled and on this account there was grudge in the heart of the applicant. He formed association with Sattar one of the Palledars of the complainant and entered into conspiracy with Dwarka Pra-sad Pandey, Tej Mohammad and Jeevan Lal (now deceased) to murder Tinku, About substantial evidence and other link evidence mention has also been made in the counter-affidavit which in my opinion is not very relevant for the decision of the case. It is submitted that the case was fixed for hearing on 14-4-1975. It is further stated that Dwarka Prasad Pandey was never examined by the Investigating Officer Sri Prem Narain Singh under Section 161, Cr. P.C. as is evident from the case diary. Dwarka Prasad Pandey remained absconding when the case was being investigated. During the investigation they stated that it came to the knowledge of the Investigating Officer that a check-up of the investigation done by Sri Prem Narain Singh on the incident was done by the C.I.D. but no final report was sent to the court of the Judicial Officer by C.I.D. The check-up was done while the investigation in the case by Sri Prem Narain Singh was going on. The influence of the complainant on the witnesses or the investigating agency is denied. It is admitted that Dwarka Prasad Pandey had moved an application for grant of pardon and for being treated as approver in the aforesaid murder case. The statement of Dwarka Prasad Pandey was recorded by the Sessions Judge but that was recorded by the Sessions Judge to satisfy himself that he was making true and full disclosure of the facts. The tutoring by Public Prosecutor to Dwarka Prasad is denied.
5. I have heard the learned Counsel for the parties at some length. Learned Counsel for the State raised a preliminary point that the revision in view of the amended provision in Cr. P.C. was not maintainable. He referred to Sub-clause (2) of Section 397 which reads:
397 (2). The powers of revision conferred by Sub-section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding.
The learned Counsel maintained that in view of this provision the order passed by the learned Sessions Judge was an interlocutory order and as such the revision itself was not competent. On the other hand the learned Counsel for revisionist argued that the order passed under Sections 306 and 307, Cr. P.C. is not an interlocutory order but is a final order passed with respect to a proceeding before the trial court. The proceeding related to a tender of pardon and pardon having been granted the proceedings relating to pardon stood concluded, I do not find myself in agreement with the learned Counsel for the revisionist. There is ample force in the contention of the learned Counsel for the State that this revision itself is incompetent. There cannot be two opinions that the order extending the pardon is in relation to a trial and even after conclusion of the trial in an appeal it is open to an accused person to question the correctness and impropriety of the pardon extended to a person. It is also open to challenge the statement of approver. In this view of the matter it cannot be said that a finality is reached if pardon is extended. The rights of the parties are not conclusively decided by order of tender of pardon. Rights subsist and can be questioned even at the stage of arguments before the trial court as well as before the Appellate Court. I have, therefore, no hesitation in coming to the conclusion that the order passed by the learned Sessions Judge in the instant case is an interlocutory order and under the amend- 'provision ''of Section 397, Criminal Procedure Code revision from such interlocutory orders is not permissible, I, however, do not wish to throw away the revision on this score alone as the points raised in the revision require a decision and the learned Counsel for the parties agree that there is no pronouncement of this Court directly on the questions raised in the revision itself. I, therefore, do not reject the revision on this preliminary ground,
6. The learned Counsel for the revisionist argued that once the final report had been accepted by the Magistrate there was no jurisdiction to reopen the case. He argued that even the C.I.D. had also confirmed the aforesaid final report; as such the further investigation by the C.I.D. in the case after obtaining the permission by the Magistrate was wholly illegal and without jurisdiction. The learned Counsel for the State on the other hand argued that a superior Police Officer under whom the Police Station falls can direct the submission of a charge-sheet much less asking for further investigation even though the Officer-in-charge of the Police Station has already submitted a final report.
7. The investigation I find is done by the Investigating Officer under Section 156 of old Code of Criminal Procedure. If upon investigation he finds that there is no sufficient evidence or reasonable ground of suspicion to justify the prosecution of the accused he is required by Section 169, Cr. P.C. to release him from custody. If on the other hand he finds that there is sufficient evidence or reasonable ground of suspicion he is required by Section 170 to forward him under custody to the Magistrate having jurisdiction over him. Section 173 requires the Investigating Officer, on completing the investigation, to report the result in the prescribed form to the Magistrate empowered to take cognizance of the offence. This report includes both the reports, viz. 'final report' and a 'charge-sheet'. These are all the provisions of law governing the question before me.
8. In H. N. Rishbud v. State of Delhi : 1955CriLJ526 it was held that under the Code of Criminal Procedure investigation consists generally of the following steps:
1. Proceeding to the spot.
2. Ascertainment of the facts and circumstances of the case.
3. Discovery and arrest of the suspected offender,
4. Collection of evidence relating to the commission of the offence which may constitute of
(a) the examination of various persons including accused and reduction of their statements into writing, if the officer thinks fit,
(b) the search of places of seizure of things considered necessary for the investigation and to be produced at the trial; and
5. Formation of the opinion as to whether on the material collected there is a case to place the accused before a Magistrate for trial and if so taking the necessary steps for the same by the filing of the charge-sheet under Section 173.
9. On the basis of the decision of the Supreme Court it must, therefore, be held that the formation of the opinion on the materials already collected and taking steps for the filing of a charge-sheet are also steps towards the investigation of the case. If the Police Officer was competent to investigate the case even after the submission of the final report and if the formation of opinion on the materials available and the filing of a charge-sheet are nothing but steps towards the investigation of the case, I find no justification to hold that the officer-in-charge of the Police Station had no power to submit the charge-sheet even after he had submitted the final report.
10. Section 551 of the old Code of Criminal Procedure provided that Police Officers superior in rank to an officer-in-charge of a Police Station may exercise the same powers throughout the local area to which they are appointed. It, therefore, cannot be doubted that under the provisions of this section the Superintendent of Police was competent to supervise the investigation and to give any direction to the Officer-in-charge of the Police Station regarding the investigation of the case. See Raghunath Sharma v. The State : AIR1963Pat268 .
11. In the instant case the Investigation Officer had obtained the permission from the court itself on being directed by the Superintendent of Police to reinvestigate the case. The permission having been granted I see no illegality in exercise of the jurisdiction either by the Magistrate concerned or by the investigating agency. In the circumstances i am of opinion that it was just and proper that the Magistrate allowed the investigating agency to make further investigation to form their own opinion.
12. The learned Counsel for the State placed reliance on the case Pradyum Narain Pandey v. State 1968 All LJ 768. It is held:
Even if a Magistrate is held to exercise judicial functions in taking cognizance of a case, there does not appear to us to be any bar to his taking cognizance of a case on second thought after having accepted the final report once. The order approving the report under Section 169 of Cr. P.C. is not an order of acquittal and Section 403 of Cr. P.C. can possibly have no application.
I find myself in agreement with the view expressed in those cases.
13. Even if it be said that the investigating officer had no power to submit a charge-sheet after he had submitted a final report consequently the charge-sheet did not amount, in the eye of law, to be a report in writing of facts constituting an offence made by a Police Officer, it was undoubtedly an information given to the learned Magistrate and there was nothing to prevent his taking cognizance of the offence on it. It was his absolute discretion to treat it as an information and once he treated it as such, it was open to him to take cognizance of the offence. I am, therefore, of the opinion that no illegality whatsoever was committed by the Magistrate in taking cognizance of the offence. Taking cognizance of an offence is certainly a judicial matter and subject to the revisional jurisdiction of this Court. If the learned Magistrate erroneously took cognizance of the offence against the applicant his order of taking cognizance of the offence could be revised. But in the instant case the learned Counsel has not laid any foundation to show that the discretion exercised by the Magistrate had been arbitrary or erroneous; as such in my opinion there is no substance in the contention of the learned Counsel that the Magistrate had no jurisdiction to take the cognizance. The law does not require a Magistrate to take into consideration whether previously the Investigating Officer had reported that the first information report had not been found to be true or whether he had been directed by the District Magistrate or the Superintendent of Police to submit a charge-sheet instead of final report. Even if the final report had been accepted by the Magistrate he was not barred by any law from taking cognizance on a subsequent report provided it mentioned facts constituting the offence. The powers of the Magistrate to take cognizance are very wide and law has placed no limits on them.
14. The learned Counsel for the revisionist next argued that the learned Sessions Judge erred in law in recording the statement of Dwarka Prasad Pandey before granting pardon, He argued that there is no provision empowering the learned Sessions Judge to record a statement of the person who is to be extended pardon.
15. Before I discuss the validity or propriety of the tender of pardon to Dwarka Prasad Pandey I 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 dealt in Chapter XXIV of the Code as part of the general provisions as to enquiries and trials. Sections 306 to 308 of the new Code of Criminal Procedure deal with the provisions of pardon. In Section 307 it is provided that a 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 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. If any pardon is so tendered it is to be deemed to have been tendered under Section 307 of the Code.
16. The contention of the learned Counsel for the revisionist is that while extending pardon to a person what Judge is required to see is that such person is making ,a full and true disclosure of the whole circumstances within his knowledge relating to the offence and to every other person. Sub-section (3) of Section 306 requires reasons for tendering pardon under Sub-section (1). He contended that it is after the person has accepted the tender of pardon made in Sub-section (1) that a person shall be examined as a witness in the court of Magistrate taking cognizance of the offence and in the subsequent trial. He maintained that there was no such provision elucidated or warranted under Section 307, Cr. P. C which empowered tender of pardon after commitment. He further argued that by virtue of Section 308 it is the Public Prosecutor who certifies that in his opinion the person who has been tendered pardon has either by wilfully concealing anything essential or by giving false evidence failed to comply with the condition on which tender was made and such a person then can be tried for the offence. He submitted that Sections 306, 307 and 308, Cr. P.C. read conjunctively make it clear that the trial court had no jurisdiction to record the statement by help of the Public Prosecutor before tendering pardon. On the other hand the learned Counsel for the State argued that it is the authority concerned who has to be satisfied that the person who is to be pardoned has made a full and true disclosure of the whole of the circumstances within his knowledge relating to the offence and to every other person concerned whether as principal or abettor in the commission thereof. He argued that this can only be possible by either hearing the person orally or after reducing his statement in writing. In the circumstances in order to find out if the person was making a full and true disclosure of the whole circumstances the learned Sessions Judge proceeded to record the statement of Dwarka Prasad Pandey, he committed no error.
17. Section 307 of the Code of Criminal Procedure deals with the provision contained in Section 306, Sub-clause (1). As such in order to appreciate the argument, one has to fall back on the details of provisions of 'pardon' contained in Section 306, Cr. P.C. inasmuch as the procedure regarding grant of pardon is laid down in Section 306, the term of that section alone will be the test to determine whether or not the statement recorded by Sri Chaman Singh was in accordance with law. The wording of that section leaves no room for doubt that the tender of pardon is to precede the making of full and true disclosure and not to follow it; that is, the true and full disclosure is expected to be made by the approver when he is examined as a witness in the enquiry or trial. Section 307 itself does not contemplate and authorise the recording of any statement by the accused as a preliminary to the tender of pardon. Section 306 lending no support to this course one has to fall back to other sections to which recourse is usually to be had in the course of trial, namely Sections 164 and 364 of the Code of Criminal Procedure. Turning now to the provisions of Section 164 it will be seen that provision is made by that section for the recording of two kinds of statements: (1) a statement pure and simple and (2) a confession. With the recording of confession I am not here concerned. Sub-section (2) of Section 164 lays down that such statements shall be recorded in such of the manners hereinafter prescribed for recording evidence as is, in his opinion, best fitted for the circumstances of the case. Section 5 of the Oaths Act shows that oaths or affirmations shall be made by all witnesses, that is to say, 'all persons who may lawfully be examined or give or be required to give, evidence by or before any court or person having by law authority to examine such persons or to receive evidence.' This shows that the learned Sessions Judge had authority to administer the solemn affirmation which he did administer to Dwarka Prasad Pandey. Again it seems to me that Dwarka Prasad Pandey was, by virtue of the conditions laid down in Section 307, Cr, P. C. and his acceptance thereto, he was bound to speak the truth and the whole truth. In the circumstances I consider that the procedure adopted by Sri Chaman Singh was in accordance with law and that the statement recorded by him of Dwarka Pra-sad Pandey was in accordance with law. It may further be pointed out that if confession is reduced to writing in accordance with Sections 164 and 364 of the Code of Criminal Procedure the document is admissible in evidence without further proof under the provisions of Section 80 of the Evidence Act. If it is reduced to writing but not with the formalities prescribed by Sections 164 and 364 of the Code of Criminal Procedure, the document can still be admitted upon proof by the evidence of the Magistrate tinder Section 533 of the Code of Criminal Procedure. If the defects cannot be remedied under the provisions of Section 533 of the Code of Criminal Procedure, the document cannot be admitted in evidence but the Magistrate may still give evidence as to the confession made before him and the document in that case may still be used under Section 159 Evidence Act to refresh the Magistrate's memory as to the 'accused's statement under Section 160 of the Evidence Act. In those cases the document will have to be produced and shown to the adverse party if he requires it and the adverse party may cross-examine the witness thereupon under the provisions of Section 161, Evidence Act.
18. The learned Counsel argued that unless and until a person does not make some statement it is physically not possible for a person to tender pardon to a person. The case relied on by the learned Counsel is, Ram Nath v. Emperor AIR 1928 Lah 320 (2) : 29 Cri LJ 413. It is held on page 322:
The section nowhere lays down that such disclosure shall be reduced to writing. I have no doubt that if made orally the verbal testimony of the person to whom it has been made will be sufficient to prove the statement. As a rule of caution, however, the approver's statement is always formally reduced to writing, a practice which it is obviously very desirable to observe so that no dispute may subsequently arise as to what the exact terms of the statement were.
I find myself in agreement with this Division Bench decision of the Lahore High Court. In my opinion the section itself contemplates some sort of statement for reducing in writing as is indicated by the words, 'full and true disclosure'. This may be made anterior to the inquiry, viz. before the Committing Magistrate and can be made at the stage of inquiry or at the stage of trial. It is the disclosure inducing the pardon which is the statement referred to in Section 308. The pardon may be offered before any inquiry has been commenced or it may be offered when the person is himself as an accused person at the trial or it may be offered when he is under-trial. This statement obviously made by Dwarka Prasad Pandey cannot be a confession under Section 164, Cr. P.C. and in my opinion that section in no way governs such a statement. Such a statement in my opinion cannot necessarily be excluded from evidence by virtue of provision of Section 24, Indian Evidence Act. In my view Section 308, Cr. P.C. makes by necessary implication a statement of this nature an exception to the rule of evidence enacted in Section 24, Indian Evidence Act as far as that section excludes confessions made as a result of the inducement of pardon. An approver's disclosure of facts is in its very nature always the result of an inducement or promise namely, inducement to confess upon a promise of pardon but if it appears that it was extorted as a result of undue duress, such a threat or violence, then I have no doubt that to that extent the provisions of Section 24 would be applicable, and the confessional statement would have to be ruled out of evidence, Section 308 only contemplates the admission of a full and true disclosure made upon the inducement or promise of a pardon and not a disclosure induced as a result of undue pressure. On giving my anxious thought to the arguments of the learned Counsel for the revisionist I am of opinion that his contention is wholly devoid of substance and in my opinion no illegality or error has been committed by the learned Sessions Judge in reducing the statement of Dwarka Prasad Pandey in writing,
19. Lastly the learned Counsel for the revisionist argued that the learned Sessions Judge acted illegally in fixing the case before for trial after he had formed an opinion and expressed it in the order that the evidence of Dwarka Prasad Pandey will be helpful in connecting the accused with the crime and in clinching the circumstantial evidence against them. The learned Sessions Judge in his order has mentioned this phrase. This is one of the reasons given by the learned Sessions Judge while tendering pardon to Dwarka Prasad Pandey. The relevant paragraph is as under:
The case hinges on circumstantial evidence and it appears that the statement of Dwarka Prasad Pandey will be helpful in connecting the accused with the crime and in clinching the circumstantial evidence against them.
The true purport was actually to mention that the evidence of Dwarka Prasad may be helpful in corroborating the circumstantial evidence. The words used by the Sessions Judge in my opinion are only little unhappily worded, it does not convince that he has expressed his opinion with respect to the circumstances or he has made up his mind with respect to the clinching nature of evidence of Dwarka Prasad Pandey. The apprehensions in my opinion are wholly imaginary. On the scrutiny of the entire order passed by the learned Sessions Judge I have no hesitation in coming to the conclusion that there is nothing worth mentioning from which it can legitimately be concluded that the learned Sessions Judge had expressed his mind or had formed any opinion with respect to the applicant-revisionist. Apart from this bald assertion I do not find anything from which it can be concluded that there are any apprehensions about impartial justice being meted out to the revisionist. In the supplementary affidavit it is stated in para 6 that the confessional statement of Dwarka Prasad Pandey recorded by Sri Chaman Singh, Sessions Judge, can be used by the prosecution for corroborating the statement of Dwarka Prasad Pandey in the court at the trial and it would also be used by the defence in cross-examination of the witnesses. Sri Chaman Singh having recorded the said statement would be necessary witness for the prosecution and if he is not examined by the prosecution then the defence will have to examine him. In my opinion there is scope for such a proposition in law. The statement made by Dwarka Prasad Pandey can be used for contradicting or confronting Dwarka Prasad Pandey otherwise of course for all practical purposes this statement being a statement of living person would be inadmissible in law. It appears on perusal of Section 306 that there is some prohibition in trying of a case by the Magistrate who has proceeded to record the statement of the approver. However, there is no such bar so far as Section 307, Cr. P.C. is concerned. I, therefore, do not find anything in law which could stand as a prohibition for. the trial of the case by Sri Chaman Singh. However, in view of the entire circumstances that have been placed before me and the assertion made in the supplementary affidavit along with the well-settled principles of law that justice should not only be done but it should also appear that justice is being done, I think it proper that the case be tried by some other Sessions Judge exercising jurisdiction in the interest of justice.
20. I, therefore, direct that Sri Chaman Singh will transfer this case to some other Judge in the same sessions division with a direction for expeditious disposal of the case.
21. The result is that this revision only succeeds in part to the extent that the prayer of transfer is allowed.