S. Barman, J.
1. These revisions arise out of certain conflicting orders passed by the learned Sessions Judge, Cuttack, and the Additional District Magistrate (Executive), Cuttack, on the question of tendering pardon to an accused under Section 337. Criminal Procedure Code in the course of a sessions trial. The questions for decision on the facts of this case are these : Could the Additional District Magistrate (Executive) tender pardon to an accused during trial before the Sessions Judge? The further pointed question posed in the peculiar circumstances of this case was whether the Additional District Magistrate (Executive) could tender pardon to an accused in a case which was being tried by the learned Sessions Judge who had expressed his views against the tender of the pardon to the accused. The points arose in the circumstances stated hereunder.
2. Seven accused persons including the accused Ratnakar Prusty were being tried in the Court of the Additional Sessions Judge, Cuttack. in S.T. No. 19-G of 1966 on a charge against the accused persons for having committed an offence under Section 302/149 Indian Penal Code.
3. By September 12, 1966, about 28 witnesses, including the Investigating Officer, had been examined in the case and three more witnesses still remained to be examined for the prosecution. On September 12, 1966, the Associate Public Prosecutor filed before the learned trying Sessions Judge a petition for adjournment of the case for fifteen days on the grounds stated in the petition, the material portions of which are these:
1. That the petitioner has received instructions to seek for an adjournment of the aforesaid case as one of the accused has offered himself to make a free and full disclosure of the facts of this case within his knowledge and that that accused is Ratnakar Prusti.
2. That under Section 337 of the Code of Criminal Procedure pardon can be tendered at any time before the pronouncement of the Judgment and this view is supported by AIR 1954 SC 616.
(3) That it is under consideration by the State that whether pardon can be tendered to an accused at this stage.
The petitioner prays that in view of the fact that an important direct evidence may come forth for your honour's consideration, an adjournment of 15 days may be granted.
And for this the petitioner shall as in duty bound ever pray.
4. The learned Sessions Judge by an order being Order No. 20 passed on the same date September 12, 1966, disallowed the prayer for adjournment and directed the sessions case to proceed. The main ground for his disallowing the adjournment was that if at that stage pardon was to be tendered to the accused Ratnakar Prusty. the trial would necessarily have to be begun afresh; that the tendering of a pardon to one of the accused persons would undoubtedly bring in a complete different situation and an altogether altered context of things. The operative portion of the order of the learned Sessions Judge was this:
Having regard to the actual stage the hearing of this case has reached, I do not think it advisable, expedient and proper to further adjourn the hearing of the case in order to enable the State Government to consider the question of offering pardon to the accused Ratnakar Prusty. I thus disallow the prayer for adjournment and direct that hearing of the case should proceed as before.
5. The learned Sessions Judge, however, granted the Associate Public Prosecutor's-prayer for an adjournment of one week to-enable the State Government to go up in revision against the order passed by him and the case was directed to remain posted to September 19, 1966. for further trial; it was also ordered that the stay order if any may be obtained from the Hon'ble Court in the meanwhile.
6. On the same date September 12, 1966, the Additional District Magistrate (Executive), Cuttack, on a petition filed by the Public Prosecutor on that date in Cri. Misc. Case No. 81 of 1966 tendered pardon to Ratnakar Prusty purported to be by virtue of the powers vested in him under the Proviso to Section 337, Clause 1 of Criminal Procedure Code on condition of his making 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. It is against this order of the Additional District Magistrate that accused No. 5 in the said sessions case Raghunath Pallai filed Criminal Revision No, 555 of 1966.
7. Thereafter, on the same date-September 12. 1966-the Public Prosecutor filed before the learned trying Sessions Judge a petition that the bail bond of the accused Ratnakar Prusty be cancelled and he may be remanded to Athagarh Jail. The material portions of the said petition before the learned Sessions Judge are these:
1. That the accused Ratnakar Prusty has been tendered pardon under Section 337 Cr. P.C. by the Addl District Magistrate, Cuttack.
2. That since he is figurng as an approver for the safety of his life it is desirable that he should be remanded to Jail custody instead of remaining on bail.
3. That there is one of the accused of this case (Naran Behera) at Cuttack Jail and there is all chance of the approver being tampered and due to the fact that dangerous criminals are residing now in Cuttack Jail, it is not safe to lodge the said approver in Cuttack Jail. Further there are difficulties to keep him under segregation in Cuttack Jail.
4. That for the interest of justice he should be remanded to Aligarh Jail.
8. This petition for cancellation of bail bond and for being remanded to Jail custody was rejected by the learned trying Sessions Judge by an order being Order No, 21 passed on the same date September 12, 1960, at 4 P.M. It is against this Order No. 21 daled September 12, 1966, that the State Government of Orissa filed Criminal Revision No. 519 of 1966 which was directed to be heard analogously with the said Criminal Revision No. 555 of 1966.
9. On September 19, 1966. to which date the sessions case was adjourned, the learned Sessions Judge passed an order being Order No. 24 by which he expressed that he was not in a position to accede to the request of the learned Associate Public Prosecutor to record the evidence of Ratnakar Prusty as an approver; the learned Sessions Judge further expressed his doubt about the correctness and legality of the course adopted by the learned Additional District Magistrate (Executive), Cuttack, in tendering pardon to the accused Ratnakar Prusty despite Order No. 20 dated September 12, 1966, passed by the learned Sessions Judge, The learned Sessions Judge however adjourned further trial of the case to September 29. 1960, and the Associate Public Prosecutor was requested to see that the order, if any, from the Hon'ble High Court staying further progress of the Sessions trial might reach the learned Sessions Judge as early as possible.
10. Thereafter, the said Criminal Revisions were filed-Criminal Revision No. 519 of 1966 by the State of Orissa challenging the Order No. 21 dated September 12, 1966, of the learned Sessions Judge in S.T. No. 19 C of 1966 and Criminal Revision No. 555 of 1966 filed by one of the other accused persons Raghunath Palet challenging the order dated September 12, 1966, by which the Additional District Magistrate tendered pardon to the accused Ratnakar Prusty.
11. Chapter XXIV of the Criminal Procedure Code covering Sections 337 to 352 contains 'GENERAL PROVISIONS AS TO INQUIRIES AND TRIALS'. Section 337 is a general provision on 'Tender of pardon to accomplice'. Section 338 gives 'Power to direct tender of pardon' The material portions of Section 337 and Section 338 so far as relevant for the present purpose are these:
337. (1) In the case of any 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 any of the following sections of the Indian Penal Code, namely Sections 161, 165, 165A, 216A, 369, 401, 435 and 477A. 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 enquiry into, or the 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 of the circumstances within his knowledge relative to the offence and to every other person concerned, whether as principal or abettor, in the commission thereof:
Provided that, where the offence is under inquiry or trial, no Magistrate of the first class other than the District Magistrate shall exercise the power hereby conferred unless he is the Magistrate making the inquiry or holding the trial, and, where the offence is under investigation, no such Magistrate shall exercise the said power unless he is a Magistrate having jurisdiction in a place where the offence might be inquired into or tried and the sanction of the District Magistrate has been obtained to the exercise thereof.
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(2) Every person accepting a tender under this section shall be examined as a witness in the Court of the Magistrate taking cognizance of the offence and in the subsequent trial, if any.
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(3) Such person, unless he is already on bail, shall be detained in custody until the termination of the trial.
338. 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.
12. The points urged on behalf of the defence challenging the order of the Additional District Magistrate tendering pardon to the accused Ratnakar Prusty are these : The power of tender of pardon is a judicial act as distinct from executive act, that all the courts mentioned in Section 337 while offering tender of par. don act in their respective judicial capacity and not as executive authorities. In the matter of tendering pardon the Additional District Magistrate is subordinate to the Sessions Judge. In support of this proposition reliance was placed on Sections 6 and 10 of the Criminal Procedure Code. It was further argued that the Criminal Procedure Code does not contemplate an application for tendering pardon; the defence point is that pardon is to be tendered by the District Magistrate or the Sessions Judge as the case may be suo motu and not on an application to be made before either of them. In support of these contentions which, in the opinion of this Court are not tenable in law, reliance was also placed on certain decisions which it is unnecessary to deal with in the view that this Court takes on the facts of this case.
13. It is well-settled position in law that that by Section 338 power is given after the commitment to the Court to which the commitment is made to tender pardon, before judgment is passed, to any person supposed to have been directly or indirectly concerned with any offence or order the committing Magistrate or the District Magistrate to tender a pardon. The section vests the court to which the commitment is made with power to tender pardon or order the committing Magistrate or the District Magistrate to tender a pardon during the trial of the case but it does not take away the power conferred under the proviso to Section 337(1); the proviso contains an additional provision which empowers the District Magistrate to tender pardon where the offences are under enquiry or trial. Reading the proviso to Section 337 and the provisions of Section 338 together, the District Magistrate is empowered to tender a par-don even after commitment if the court so directs. The conferment of the power on the trial court to direct to tender pardon under Section 338 in no way deprives the District Magistrate of his power to grant a pardon under Section 337 A.J. Peiris v. State of Madras : AIR1954SC616 , Kanta Prasad v. Delhi Administrations : 1958CriLJ698 .
14. Having regard to the settled position of the law as laid down by their Lordships of the Supreme Court it was open to the Additional District Magistrate in this case to grant pardon even at the stage when the case was being tried by the learned Additional Sessions Judge after commitment. There is nothing in Section 337(1) or Section 338 which deprives the Additional District Magistrate of his power to grant pardon in a case which was committed to the Court of Session for trial.
15. In the present case the question was raised : was it illegal on the part of the Additional District Magistrate to tender pardon to the accused Ratnakar Prusty? The sequence in which the several orders were passed on one date. name September 12. 1966. from the sitting of the court in the morning till 4 p.m. in the afternoon was this : Earlier in the day the Associate Public Prosecutor moved an application before the learned trying Sessions Judge for consideration whether pardon could he tendered to accused Ratnakar Prustv : the said application was by Order No. 20 rejected by the learned trying Sessions Judge. Evidently, later in the day, in the sequence of events which happened on that date, the Additional District Magistrate by an order made in Criminal Misc. Case No 81 of 1966 tendered pardon to the accused Ratnakar Prusty by virtue of the powers vested in him under the proviso to Section 337 Criminal Procedure Code.
There is nothing on record to show that the fact of refusal of the application for adjournment by the learned trying Sessions Judge or the observations made therein were brought to the notice of the Additional District Magistrate who tendered pardon; apparently the views expressed by the learned trying Sessions Judge in his Order No. 20 refusing adjournment were not communicated to the Additional District Magistrate while dealing with the Associate Public Prosecutor's petition for tender of pardon to the accused Ratnakar Prusty. In my opinion, assuming they were brought to his notice, even so, they are hot relevant considering for the purpose of deciding the question of the legality of the tender of pardon by the Additional District Magistrate under Section 337 they are immaterial,
16. After the pardon was tendered as aforesaid, the Associate Public Prosecutor filed a petition at 4 p.m. on the same date slating that the accused Ratnakar Prusty had been tendered pardon by the Additional District Magistrate under Section 337 and prayed that the bail bond of the said accused Ratnakar Prusty may be cancelled and he may be remanded to Atgarh Jail for the reasons stated in the petition quoted above. While dismissing the said application by Order No. 21 the learned trying Sessions Judge observed thus:
As it appears, in the meanwhile, pardon has been granted to Ratnakar Prusty and he is proposed to be examined as an approver, apart from the question of lawfulness of such a thing, especially in consideration of the stage to which the hearing has already reached, the procedure adopted virtually by-passes the Order No. 20 of this Court and it remains to be seen and considered on the adjourned date (19-9-1966) whether, despite the order already passed by me and in the absence of any direction from the Hon'ble Court, the action of the alleged tender of pardon to the accused Ratnakar would have any binding effect on this Court in the matter of further trial of the case. Any way, so far as this Court is concerned and having regard to the order already passed by this Court, Ratnakar Prusty is nothing else than an accused undergoing trial here, and as such accused he remains on bail. So there is no reason for this Court to remand the accused to jail custody.
17. In view of the clear provisions of Section 337 and Section 338 as explained by their Lordships of the Supreme Court, it was not illegal for the Additional District Magistrate 10 tender pardon to the accused Ratnakar Prusty during the Sessions trial after commitment, by virtue of the powers vested in him under Section 337. Criminal Procedure Code.
18. In this view of the case, the learned trying Sessions Judge held that, in spite of the tender of pardon by the Additional District Magistrate as aforesaid, Ratnakar Prusty is nothing else that an accused undergoing trial and his order refusing to remand him to jail custody as prayed for was not justified in law. I am, therefore, of opinion, that the tender of pardon by the Additional District Magistrate to the accused Ratnakar Prusty is not illegal.
19. In the result therefore, Criminal Revision No. 519 of 1966 filed by the State of Orissa is allowed, the order of the learned Additional Sessions Judge being Order No. 21 dated September 12, 1966, passed at 4 p.m. in S.T. No. 19-C of 1966 is set aside and the learned trying Sessions Judge is directed to examine the said Ratnakar Prusty as a witness in the case; the bail bond of the accused Ralnakar Prusty be cancelled and he be remanded to Athagarh Jail.
Criminal Revision No. 555 of 1966 filed by the accused No. 5 Raghunath Palei is dismissed; the order of the Additional District Magistrate dated September 12, 1966, in Criminal Misc. Case No. 81 of 1966 tendering pardon to the accused Ratnakar Prusty is confirmed.