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O.K. Ralhan Vs. the State and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal;Customs
CourtDelhi High Court
Decided On
Case NumberCriminal Miscellaneous Appeal No. 562 of 1983
Judge
Reported in25(1984)DLT376
ActsCode of Criminal Procedure (CrPC) , 1973 - Sections 164 and 306; Indian Penal code, 1860 - Sections 420; Import and Export (Control) Act, 1947 - Sections 5
AppellantO.K. Ralhan
RespondentThe State and anr.
Advocates: Gurdial Singh,; A.S. Vir and; M.L. Sachdev, Advs
Cases ReferredState of Andhara Pradesh v. Chimalapati
Excerpt:
criminal - approver - section 306 of criminal procedure code, 1973 - approver before granting pardon must be examined under section 306 (4) - approver need not be accomplice in all culpable activity of accused - their statement may vary as evidence of other witnesses during trial - but it will effect their credibility. - - both of delhi, and that these fake firms bad been floated by them to earn profit out of the sale of import licenses issued in the name of these firms. investigation allegedly further established that the application for import licenses and other papers signed on behalf of the firms as a proprietors were non-existent persons and that these fictitious named bad been used by gopal krishan ralhan and yog darshan. sharma, were also parties to the criminal conspiracy for.....h.l. anand, j.(1) this .petition under section 482 of the code of criminal procedure is directed against the order of the additional sessions judge, delhi upholding that of the chief. metropolitan magistrate, holding that kusum dewan and mohinder.adyani,who were granted pardon, were approvers not only in respect of the charge-sheet for offences under sections 120-b indian penal code read with sections 420 ipc., 420 dpc 467/468 and 471 indian penal code but also in the complaint filed under section 120 indian penal code read with 5 of the imports and export control act, 1947, section 420 ipc/4681pc 471 indian penal code and section 5 of the import and export (control) act 1947 and that on that account, the complaint case be committed to sessions, after the said approvers had been examined,.....
Judgment:

H.L. Anand, J.

(1) This .petition under section 482 of the Code of Criminal Procedure is directed against the order of the Additional Sessions Judge, Delhi Upholding that of the Chief. Metropolitan Magistrate, holding that Kusum Dewan and Mohinder.Adyani,who were granted pardon, were Approvers not only in respect of the charge-sheet for offences under sections 120-B Indian Penal Code read with sections 420 IPC., 420 Dpc 467/468 and 471 Indian Penal Code but also in the complaint filed under section 120 Indian Penal Code read with 5 of the Imports and Export Control Act, 1947, Section 420 IPC/4681PC 471 Indian Penal Code and Section 5 of the Import and Export (Control) Act 1947 and that on that account, the complaint case be committed to Sessions, after the said Approvers had been examined, in accordance with the procedure laid down in Section 306(5) of the Code.

(2) The petition has been filed in the following circumstances. The report of the Controller of Imports and Exports, dated May 22, 1974, addressed to the Central Bureau of Investigation, disclosed that Anita Industries, Faridabad had been granted 12 licenses during the years 1972-73 and that the Collector of Customs, Bombay had reported that the firm Imported seamless stainless pipes for manufacture of Hipoderamic Needles and these were of sizes not required for manufacture of hipoderamic needles. It was further pointed out by the Collector that the 'endues' indicated in the licenses had been deleted by the Joint Chief Controller of Imports and Exports, Calcutta. It was further reported that in the correspondence that ensued Deputy Collector of Customs informed the Controller that enquiries revealed that the firm was no longer in existence and that a show cause notice for cancellation of these licenses was issued to the firm on the ground that the firm had obtained these licenses by fraud and mis-representation. It was further revealed that the deletion of the 'endues' on the licenses were forged by some unknown person. The C.B.I, was accordingly requested to take up investigation. On receipt of this report the C.B.I, registered a case under section 120B Indian Penal Code read with Section 420 Indian Penal Code . 420 Indian Penal Code ., 467 Indian Penal Code . 471 Indian Penal Code . and Section 5 of the Import and Export (Control) Act 1947, being R.C. 13/1 & E/74-Delhi. Subsequent, on a report from the Deputy Director of the Directorate of Revenues Intelligence, dated September 28,1974, addressed to the Central Bureau of Investigation against the management of Anita Industries, Faridabad, Since Industires, Ballabgarh and Ruby Industries, Faridabad, another case under sections 120B Ipc read with 420 Ipc, 420 Indian Penal Code 367 Indian Penal Code 468 Indian Penal Code 471 Indian Penal Code and Section 5 of the Import and Export (Control) Act 1947, being R.C. 20/74-FS-11, was registered on November 16, 1964. This report repeated the allegations made in the earlier report against the management of Anita Industries and referred to a number of other instances of the same nature involving Simco Industries. It was pointed out that during the course of inquiries a similarly of modus operandi adopted by Anita Industries and Simco Industries was noticed. It was further revealed that the owner of the two firms was the same person and that he was also having another concern known as Ruby Industries which was also more in existence. It was also revealed that all the three units had cumulatively effected imports of over Rs. 45 lakhs or so during the last three years and the main brain behind the racket appeared to be one G.K. Ralhan. It was also pointed out that as a result of reference by the Bombay Customs House, the import and export authorities had 'since cancelled 12 licenses of the face value of Rs. 201akhs standing in the name of M/s. Anita Industries Faridabad under Clause 9-A of the Import Control Order 1955 on the ground that the same were obtained by fraud and misrepresentation'. It is alleged that in the course of investigation by the Special Police Establishment, it was revealed that the aforesaid three firms belonged to Gopal Krishan Ralhan, the petitioner herein, and the one Yog Darshan. both of Delhi, and that these fake firms bad been floated by them to earn profit out of the sale of import licenses issued in the name of these firms. Investigation allegedly further established that the application for import licenses and other papers signed on behalf of the firms as a proprietors were non-existent persons and that these fictitious named bad been used by Gopal Krishan Ralhan and Yog Darshan. Further investigation revealed that out of the large number of import licenses issued in favor of these three firms, 24 licenses were of the actual users category and these were issued on the recommendations of District Industries Officer, Faridabad and were made by one O.P. Sharma, who at the material time, was posted in that office at Faridabad. Investigation is said to have further disclosed that Harbans Singh Khanna and Baldev Singh who were at the material time working as Inspector and Block Level Extension Officer, respectively, in the aforesaid office under O.P. Sharma, were also parties to the Criminal conspiracy for the issue of import licenses as these officers had verified the applications of these fake firms and recommended the issue of import licenses. It was further found in the course of investigation that the anyone documents, purporting to be in the name of two of these firms, i.e. Anita Industries and Simco Industries, had been signed by Yog Darshan in fake names as well as by Kusum Diwan and Mohinder Advani, who were in the employment of Gopal Krishan Ralhan and Yog Darshan. It is further alleged that Kusum Diwan and Mohinder Advani made confessional statements u/s 164 of the Cr. P.C. on February 21, 1976 and March 29, 1976 respectively. It is alleged that they expressed a willingness to become Approvers. By its application of April 14, 1976, the C.B.I. moved the Chief Metropolitan Magistrate, New Delhi on the aforesaid allegations and prayed that the aforesaid two persons be granted pardon u/s 306 of the Criminal Procedure Code on the condition of their making full and true disclosure of the whole of the circumstances within their knowledge 'relative to the offences'. The then Chief Metropolitan Magistrate, by two separate but identical orders of the same date, granted pardon to the aforesaid two persons. In the course of the orders the Chief Metropolitan Magistrate mentioned that Kusum Dewan and Mohinder Advani were accused persons 'concerned in the commission of offences u/s 120-B Indian Penal Code . and Section 420/467/468/471 Indian Penal Code . and Section 5 of the Imports and Exports Control Act, 1947 which is the subject-matter of investigation of case F.I.R. no. 20/74-F.S. Ii dated November 16, 1974.' This is how the rest of the orders read :-

'Where as the statement made by Shri M.K. Advani u/s 164 Cr. P.C. recorded by Shri B.B. Gupta Metropolitan Magistrate, Delhi has been perused by me and it appears that Shri M.K. Advani has admitted that while he was in the employment of G.K. Ralhan, he has signed as Uma Kant as Proprietor of M/s Ruby Industries on various documents, namely, application for import licenses, and other documents etc. at the instance of the accused G.K. Ralhan and Kuku accused. He has also disclosed that three fake firms, namely Anita Industries, Simco Industries, and Ruby Industries were floated by accused G.K. Ralhan and Yog Darshan alias Kuku in order to obtain import licenses arid earn under profit by selling the same. He also disclosed that accused Kuku used to sign as proprietor of M/s. Sirnco Industries and Anita Industries under fake name and that premises were hired for running factories in the name of the aforesaid industries but actually no factories were set up to those places. It appears that the statement of Shri M.K. Advani recorded U/s. 164 Cr. P.C. contained full and true disclosure of the whole circumstances within the knowledge relating to the offences and would strengthen the case of prosecution against other main accused persons. Where with a view to obtaining the evidence of said Shri M.K. Advani S/o Shri R.P. Advani, it is desired that he should be granted pardon under the provisions of section 306 Cr. P.C. Now, thereforee, I Mohd. Shaming, Chief Metropolitan Magistrate, Delhi hereby tender pardon to the said Shri M.K. Advani S/o Sh' R.P. Advani on the condition of his making:trueand full disclosure of the whole circumstances within knowledge .relating to the said offences of conspiracy, cheating, forgery etc. as mentioned above.'

(3) On March 26, 1977 a complaint was filed by R.S. Bansal Deputy Chief Controller of Imports & Exports, New Delhi in the court of Additional Chief Presidency Magistrate 32nd Court, Esplaned, BombayU/S: 120B Indian Penal Code . read with Section 5 of the Imports and Exports Control Act, 1.947, Section 420 I.P.C., 468/471 Indian Penal Code . and Section 5 of the Imports and Exports (Control) Act, 1947 against 1) O.K. Ralhan2) Yog Darshan 3) Fakhruddin 4) Abbas Ali and 5) B.G. Sarang, Kusum Diwan and Mohinder Advani were cited as witnesses, among others, in the complaint. In the course of complaint it was mentioned that these two persons were approver and would be examined as 'Witnesses' in the complaint. In the list of witnesses the word 'approver' was shown in brickets against their named. Para 50 of the Complaint which sums up the allegations on which it is based runs this:

'That from the aforesaid investigation and the evidence collected, it has been found that during the period 1971 to 1974 or thereabout, at Delhi, Faridabad, Bombay and other places, a criminal conspiracy was hatched by (1) S/Shri G.K. Relhan (2) Yogdarshan @ Kuku (3) Fakhruddin (4) Abbas Ali and (5) B.G. Sarang, accused, with the unlawful object of mystification of the goods imported against .the import licenses of M/s.Anita Industries and M/S.Sirnco Industries in contravention of the conditions of import licenses and in pursuance of the said conspiracy they did not utilize the said imported materials, in the factories of these firms as per conditions of the import licenses. Further Fakhruddin and Abbas Ali, the partners of L.A. holder firm M/s.Exportrade Bombay, cheated the officers of Bombay Customs by getting the goods released dishonestly and fraudulently by using forged licenses as genuine knowing them to be forged. Thus, the said accused have committed' offences under Section 120B. Indian Penal Code . r/w.section 5 of the Import and Exports (Control) Act, 1947, Section 420 Ipc, 468/471 Indian Penal Code and Section 5 of the Imports and Exports (Control) Act, 1947.'

(4) Subsequently, on January 23, 1973, a charge-sheet was filed by the C.B.I, in the court of Chief Metropolitan Magistrate, Delhi against 1) Gopal Krishan Ralhan, 2) Yog Darshan 3) O.P. Sharma, 4) Harbans Singh Khanna and 5) Baldev Singh u/s. 120-B Indian Penal Code . read with Section 420 Indian Penal Code ... 420 Indian Penal Code . 467 Indian Penal Code ., 468 and 471 Indian Penal Code ., on the allegations that the accused persons were parties to a conspiracy to obtain import licenses in the name of fake firms and to have committed offences of forgery and use of forged documents and obtained 48 import licenses. This is how para 32 of the charge-sheet reads:

'From the aforesaid investigation and evidence collected, it has been found that during the period from 1971 to 1974, or thereabout at Delhi, Faridabad, Bombay and other places, in India, a criminal conspiracy was hatched by S/Shri' (1) Gopal Krishan Ralhan, G.K. Relhan (A-l) (2) Yog Darshan alias N.K. Mallick alias Kukku A-2, (3) Om Parkash Sharma (O.P. Sharma) (A-3), (4)(Harbans Singh Khanna A-4 (5) Baldev Singh, A-5.................. with the illegal object to cheat the officers of JCCI &E; (CLA) New Delhi and Jcci & E Bombay,, to dishonestly and fraudulently .obtain Import licenses in the names of fictitious firms, Anita Industries, Simco Industries and Ruby Industries, and that further in persuance of the said criminal conspiracy and to achieve the said objects the said accused persons prepared false documents, dishonestly used the said documents as genuine, knowing them to be forged ; and on the basis of misrepresentations made dishonestly including the import authorities to issue import licenses, thereby committed offences under section 120-D Ipc read with section 420 Ipc, 420 Ipc, section 467 read with Section 420 Ipc, 420 Ipc, Section 467 Ipc, 468 Indian Penal Code and 471 IPC'.

Kusum Diwan and Mohinder Advani are cited as Approvers in the charge- sheet.

(5) Petitioner and Yog Darshan sought transfer of the complaint case from the Bombay Court to the Court of Chief Metropolitan Magistrate, Delhi by a petition in the Supreme Court of India inter alia, on the ground that the accused persons have been charged with the same offences in both the cases, that the witnesses at both the trials would be common, and that separate cases have been filed to harass the petitioners with mala fide intention and ulterior motives. The plea of the petitioner and Yog Darshan for transfer of the case was opposed on behalf of the C.B.I and in the affidavit filed in opposition it was pointed out that the two cases were 'separate' and 'distinct' and that while Kusum Diwan and Mohinder Advani were the Approvers in the case pending in Delhi, these two persons were cited as 'witnesses' in the complaint case pending in Bombay. Certain other points of distinction between the two cases were also brought out. Paras 6 and 8 of the affidavit run thus :

'PARA-6.Regarding para 5 of the petition I submit that Smt. Kusum Diwan and Mohinder Advani are the approvers in the chargesheet case pending in the court of Cmm, Delhi. On the other hand two persons have been cited as witnesses in the complaint case filed in the Bombay Court. As submitted above, only some of the witnesses are common. Para-8. Regarding para 7 of the petition I submit that 48 Import licenses are involved in the case filed at Delhi, whereas out of them 26 licenses are involved in the case pending in the Bombay Court. It is incorrect to Say that the accused have been charged with the same offences in both the cases and in any case they arise out of different transactions. In fact, in the case filed at Bombay they have been charged for mystification of goods imported in contravention of the conditions of import licenses and for cheating the officers of Bombay Customs, by getting the goods released dishonestly and fraudulently by use of forged licenses as genuine knowing them to bew forged and also for the offence of conspiracy to commit these offences. While in the second case where charge sheet by CBI/IPE has been filed at Delhi, the accused have been charged for cheating the officer of the Import Offices at New Delhi and Bombay and for dishonestly and fraudulently obtaining import licenses besides the offence of conspiracy to commit these offences. It is incorrect to say that the prosecution is relying on the same set of common oral and documentary evidence in both the cases. It is, however, admitted that the part of the oral and documentary evidence and same of the witnesses are common in both the cases, It is specifically denied that the case at Delhi has been made out for trial with separate jurisdiction by the courts at Bombay and Delhi. In view of the same, the two cases have been separately filed at these places i.e. one at Bombay and the other at Delhi keeping legal provisions in view.'

(6) In the complaint case, the proceedings were initially regulated by by Section 244 of the Code in that 5 witnesses were examined. In the case in which charge sheet was filed, it was proposed to examine the two Approvers and to commit the case to the court of Sessions by virtue of the provisions of Section 306(5) of the Code. Similar procedure was sought to be followed on behalf of the complainant in the complaint case when a question arose before the Chief Metropolitan Magistrate on January 15, 1982 if Kusum Diwan and Mohinder Advani, who had been cited as witnesses in the complaint case, could be treated as Approvers in that case and be examined as such and the complaint case then dealt with u/s 306(5) of the Code, so that the case on a charge-sheet, and the complaint case would then be simultaneously tried by the Court of Sessions. A contention was raised on behalf of the petitioner, and certain others accused persons, that having regard to the nature of the allegations in the complaint, the offences involved in it, the terms of the orders granting pardon, and the confessional statements of the aforesaid two persons, as indeed, the fact that, at the material time, an offence u/s 5 of the Import and Export Control Act, 1947 was punishable only with two years, Kusum Diwan and Mohinder Advani, could not be treated as approvers in relation to these proceedings although they may be examined as ordinary witnesses and the complaint case could not, thereforee, be committed to the Sessions. That these two persons were Approvers only qua the case based on charge-sheet was sought to be reinforced by the averments made on behalf of the Cbi in its affidavit filed in the Supreme Court and referred to above. On behalf of the complainant, it was urged that the aforesaid two persons were granted pardon in respect of both sets of offences i.e. under the Indian Penal Code and under the Imports and Exports Control Act, 1947 and were, thereforee, Approvers in respect of all the offences. By its order of January 15, 1982 the Chief Metropolitan Magistrate turned down the plea of the accused persons and directed that the aforesaid two persons were Approvers qua both the cases and that after their statements are recorded as such Approvers, the proper course would be to follow the procedure prescribed in Section 306 of the Code of Criminal Procedure and to commit the case to Sessions. The order was challenged by the petitioner in revision before the Sessions Court and the Addl. Sessions Judge, Delhi, by his order of February 7, 1983 upheld the order of the trial court. Hence, the present petition u/s. 482 of the Code of Criminal Procedure by the petitioner.

(7) Relying on the decisions of the Privy Council (1) and of this Court, (2) & (3) and certain other cases, counsel for the complainant urged that the present petition u/s. 482 of the code of Criminal Procedure was not maintainable by virtue of the bar incorporated in sub-section (3) of Section 397 of the Code. Sub-section (3) of Section 397 no doubt provides that if the revisional jurisdiction has been once invoked, no further application by the same person shall be entertained 'by the other of them'. Sub-section (2) of Section 397 which puts an interlocutory order outside the revisional power u/s. 397 is an analogous provision. The nature of the inherent power of a High Court u/s. 561-A of the old Code, corresponding to the provision of Section 482 of the present Code, the circumstances in which the inherent power could be exercised and the interaction between the inherent power of the High Court and the revisional power of the High Court of as indeed, the bar contained in sub-section (2) of Section 397 have been subject-matter of judicial controversy. It has never been in doubt that the Code does not confer any inherent powers but merely preserves the powers that this Court enjoyed. It has also never been in doubt that the inherent powers were not in conflict with specific powers conferred on the court by the Code of Criminal Procedure but were nevertheless to be sparingly used in exceptional cases to give effect to any order under the Code or to prevent abuse of process of any court or otherwise to secure the ends of justice and that nothing in the Code could be deemed to limit or affect the inherent powers. There was, however, some support for the contention that the bar of sub-section (2) of Section 397 of the Code of Criminal Procedure would not permit the exercise of inherent powers to interfere in relation to any interlocutory order and that is what the Supreme Court held in the case of Amur Nath (4). This decision would, thereforee ordinarily be a good authority on a parity of reasoning for the further proposition that the bar of subsection (3) of Section 397 would out even the inherent power of this Court to interfere where the revisional power had been declined by the Sessions Judge. The decision of the Supreme Court in the case of Amar Nath (supra) was, however, 'moderated', if not overruled, in the case of Madhu Limaye, and I say so with respect. In this case, it was pointed out that on a plain reading of Section 482, it would follow that nothing in the Code, which would include Sub-section (2) of Section 397 also, shall be deemed to limit or affect the inherent powers of the High Court. It was, however, pointed out that if the bar is not to operate in the exercise of the inherent power at all, it will be tantamount to rendering nugatory one of the limitations imposed upon the exercise of revisional power of the High Court, meaning thereby that the High Court will have no power of revision in relation to any interlocutory order.' It was, thereforee held that in case the impugned order clearly brought about a situation which is an abuse of the process of the Court or for the purpose of securing the ends of justice, interference by the High Court was absolutely necessary, then, nothing contained in Section 397(2) could limit or affect the exercise of inherent power by the High Court. The proverbial words of caution followed and it was observed that such case would be 'few and far between' and the Court added that the High Court must exercise the inherent power 'very sparingly'. The Court further held that an order, which was not final, would not necessarily become interlocutory and that there were orders which would fall in the intermediate category and such orders would, in any event, be outside the bar of sub-section (2) of section 397. The principle was reiterated by the Supreme Court in the case of Raj Kapoor and others, (6) which again involved the bar of sub-section (2) of Section 397 in the context of inherent power of the High Court. Krishna lyer,J' who spoke for the Court, observed that nothing in the code, not even Section 397, affect the amplitude of the inherent power u/s 482 but even a general principle pervades this branch of law so that when a specific provision is made easy resort to inherent power is not right except under 'compelling circumstances'. It was further pointed out that not that there is absence of jurisdiction but that inherent power should not invade areas set apart for specific power under the same code. It was said that there is no ban on exercise of inherent power where abuse of the process of the court or other extraordinary situation excites the court jurisdiction. 'The limitation is self-restraint, nothing more', said the learned Judge. The Supreme Court was concerned in all the three cases with sub-section (2) of Section 397 but the observations in the last case extend to the whole of Section 397 and is not confined to sub-section 2 alone. Even otherwise the quality of the bar in sub-sections (2) and (3) is not different. What has been authoritatively said about the interaction of the bar on the inherent power of the High Court with reference to sub-section (2) of Section 397, to mind, would equally hold good in the case of the bar engrafted in sub-section (3) of that Section. The petition is, thereforee, maintainable. It was however, not urged that the impugned orders in the present case could partake the character of merely interlocutory orders.

(8) There is thus no Statutory bar to exercise of inherent power of the High Court if the conditions for the exercise of such power are otherwise satisfied and the present petition is maintainable notwithstanding that a second petition u/s 397 cannot be entertained by either of the Courts. The maintainability of the petition, however, does not necessarily mean that the contention, on which it is based, is necessarily sustainable. Maintainability of a petition and the sustainability of the grounds on which it is based, are conceptually different. While there is no lack of jurisdiction or power in the High Court to give relief u/s. 482 on the principles, which regulate the exercise of inherent power, the question would still be if in the totality of the circumstances, the impugned orders suffer from any infirmity which would justify interference. That clears the ground for consideration of the question in controversy between the parties on their merit.

(9) It is not in dispute that an offence u/s 5 of the Import & Export (Control) Act, 1947, at the material time, was punishable with a maximum of 2 years. It is also not in controversy that a conspiracy to commit an offence under the aforesaid provisions would be equally punishable. It is also beyond doubt that neither of these offences are exclusively triable by a Sessions Court an could be tried by a Magistrate. It is also beyond controversy that an offence u/s. 5 of the Import & Export (Control) Act, 1947 cannot be taken cognizance of except on a complaint to be filed in that behalf by a competent authority. There is also no doubt that the other offences alleged, namely, u/s 420, 468 and 471, as also the conspiracy to commit any of these offences, would be punishable with imprisonment for 7 years and fine, and none of these offences are exclusively triable by a court of Sessions. Ordinarily, thereforee, an offence u/s 5 of the Import & Export (Control) Act, 1947 read with Section 120-B or otherwise on a complaint would be governed by Section 244 of the Code, being a warrant case instituted, otherwise than on a police report. In the same way, a trial of the other offences under the Indian Penal Code mentioned above would be regulated by Sections 238 to 243 of the Code, being a warrant case triable by a Magistrate instituted on a police report. Section 306 provides for tender of pardon to an accomplice and provides that a competent court may tender a pardon to an accomplice on condition of his making a full and true disclosure of the whole of the circumstances within his knowledge, 'relative to the offence'. By virtue of sub-section (2) of that Section, the Section applies, inter alia, to any offence punishable with imprisonment which may extend to 7 years or with amore severe sentences. That is what sub-section (2)(b) provides, the present case being beyond the scope of sub-section 2(a), in any event. Sub-section (4) of this Section further provides that the person to whom pardon is tendered, and who is popularly called the Approver, though that expression is not used in the Section, he shall be examined as a witness in the Court of the Magistrate taking cognizance of the offence and in the subsequent trial, if any. Sub-section (5) of this Section further provides that after such person has been examined under sub-section (4), the Magistrate taking cognizance of the offences, shall without making any further enquiry in the case:

' (A)commit it for trial-

(I)to the Court Sessions if the offence is triable exclusively by that Court or if the Magistrate taking cognizance is the Chief Judicial Magistrate.

(II)to a Court of Special Judge appointed under the Criminal Law (Amendment) Act, 1952 if the offence is triable exclusively by the Court.

(B)in any other case make over the case to the Chief Judicial Magistrate who shall try the case himself. '

Section 308 provides for the trial of the Approver who fails to comply with the condition of pardon and authorises the trial of such a person 'not only for the offences in respect of which the pardon was so tendered' but also 'for any other offence of which he appears to have been guilty in connection with the same matter and also for the offence of giving false evidence.' The Section makes certain other provisions in relation to the trial of the Approver, with which we are not concerned in the present case.

(10) While these facets of the Code are more or less beyond controversy, there has been some judicial controversy if an Approver, who had been granted pardon at a stage when there was composite investigation, could be examined as an Approver and the Special procedure of Section 306, or what used to be Section 337 in the old Code, would be attracted if on the conclusion of the investigation, two separate cases were filed, one in relation to the offences which would be within the terms of the Section, and the other either a chargesheet or a complaint but for an offence which, by itself, would be outside these provisions. It would be useful to consider these decisions so that the questions in controversy in the present case could be viewed in their proper perspective. In the case of Harumal Parmanand, (7) which is among the early cases under section 337 and 338 of the Code of Criminal Procedure, the question was if the grant of pardon would be invalidated merely because the enquiry or trial, during the pendency of which pardon was granted, involved, in addition to offences which are triable exclusively by the Court of Sessions, certain other offences which were not so triable. It was help that at that Sections 337 and 338 required was that there should be an offence that is triable exclusively by the Court of Sessions under enquiry or trial and the fact that there may be an other offence alleged or charged which are not so triable was immaterial. It was further observed that in such cases the offence triable exclusively by the Sessions Court is obviously the main offence charged being generally punishable with heavier punishment and treated by the Legislature as more serious that others not so triable and the condition that a pardon may be tendered only when there is such an offence under enquiry or trial is clearly due to a desire to limit the power of pardon to cases where the seriousness of the main crime alleged may justify such an exercise of the prerogative of the Crown which is delegated to the Courts under these provisions. This view was sought to be reinforced with reference to Legislative history of Section 337. Sections 337 and 339 of the old Code came up for consideration in the Supreme Court in case of Hira Lal Girdhari Lal Kothari. (8) The question in that case was if a pardon could be tendered for an offence u/s 5 of the Official Secrets Act read with Sections 123B of the Indian Penal Code and was answered in the negative. The question arose if the Approver in that case could be treated as an Approver and examined as such for the purposes of proceedings on a complaint u/s 5 of the Official Secrets Act, The question whether the case should be committed to the Court of Sessions did not survive in that case because one of the accused bad asked for a trial by the Court of Sessions as provided u/s 13(2) of the Official Secrets Act. In this case, which involved the leakage of budget proposals by a Public servant to a businessman, involved offences u/s 165-A of the Indian Penal Code, Section 5(2) of the Prevention of Corruption Act, Section 5 of the Official Secrets Aet and Section 120-B of the Indian Penal Code, pardon was tendered to A.L. Mehra u/s 337 of the Code and these 4 offences Were specified in the order Of the Magistrate who granted pardon to Mehra. Thereafter, owing to a technical difficulty, a complaint u/s 5 of the Official Secrets Act read with Section 120-B of the Indian Penal Code . was filed against the accused persons and it was stated in the complaint that proceedings with respect of the charge u/s 5(2) of the Prevention of Corruption Act would be taken separately. Proceedings on the complaint began before a Magistrate by no charge sheet u/s 5(2) of the Prevention of Corruption Actor Section 165-A Indian Penal Code was ever filed. In the course of the proceedings before the Magistrate on the complaint, prosecution sought to examine Mebra as an Approver. This was objected to on the ground that the proceedings before the Magistrate were only u/s 5 of the official Secrets Act and Section 120-B of the Indian Penal Code and Mehra could not, thereforee, be examined as an Approver. The Magistrate held that Mehra could be treated as Approver and that the proceedings before him were, thereforee, in the nature of commitment proceedings and would have to be committed to the Court of Sessions by virtue of the provisions of Section 337 of the Code. The learned Sessions Judge, to whom the matter was taken in revision upheld the claim of the accused persons and recommended to the High Court that the order of the Magistrate be quashed. The order of the Sessions Judge was upheld by the High court and the High Court ordered accordingly. The Supreme Court upheld the order of the High Court. In the Supreme Court, reliance was placed on the provisions of Section 339 of the Code as also on the two decisions of the Allahabad High Court. (9) and (10) Reliance was also placed on the decision in the case of Harumal Parmanand (Supra). These cases were, however, distinguished by the Supreme Court on the ground that these referred to different circumstances altogether and were not concerned with the interpretation of Section 337(1) of the Code. It was further observed that in these cases, the question was whether an Approver, who was prosecuted u/s. 330 for certain offences, could be or should be so prosecuted and turned on the terms of the pardon granted in these particular cases. It was further observed that, what the Supreme Court was concerned in the case before it was whether a pardon u/s. 337(1) of the Code would be granted in the case of an offence u/s 5 of the Official Secrets Act read with Section 120B of the Indian Penal Code and observed that to that there can be only one answer, on the terms of that section, namely, that no pardon could be granted for an offence of this nature. Section 337 was next considered in the case of Hasmukhlal N. Vakiln.a (ii) by Gujrat High Court and it was held that pardon could be tendered to an accomplice for offences which admittedly arise out of the same transaction even when some of the offences are covered by the Section while some are not. This case arose out of a complaint filed for composite offences, some of which were within the terms of Section 337, while some were outside the Section. The trial Court was asked to grant pardon to an accomplice which it did. Subsequently, the attention of the trial court was drawn to the decision of the Supreme Court in the case of Hira Lal Girdhari Lal Kothari (supra) and it was urged that pardon could not be given for offences which were not covered by the Section but the learned Magistrate distinguished the decision of the Supreme Court. The order was upheld by the Sessions Judge in revision. This is how the matter went to the High Court. The High Court felt that where an accused person was sought to be prosecuted for some offences which are covered by the Section Along with others which are not, it would be proper to grant pardon for all the offences so long as they arose out of the same transaction, and relied on the decision in the case of Harumal Parmanand (supra), a decision of the Division Bench of the Lahore High Court, (12) decision of the Nagpur High Court (13) and the decisions of the Allahabad High Court referred to above. The High Court, however, found that the decision of the Supreme Court in the case of Hira Lal Girdhari Lal Kothari (supra) created some difficulty because most of the above referred decisions had been referred to and distinguished by the Supreme Court. The High Court, thereforee, embarked on an elaborate consideration of that decision. The High Court distinguished the decision of the Supreme Court on the ground that the overriding circumstance which had weighed with the Supreme Court in that case was the fact that trial of Section 5 of the Official Secrets Act read with Section 120-B Indian Penal Code 'was separated from the rest of the offences and it was for the purpose of that the trial that the question of pardon came to be considered by the Court. It was for this reason that the Court has repeatedly put emphasis on of the fact that offences u/s 5 of the Official Secrets Act and Section 120-B Indian Penal Code were not covered by any of the three categories of the offences contemplated by Section 337 of the Code. Separation of trial for these offences made a considerable difference because but for that separation these offences were triable exclusively by a Sessions Court in view of the fact that the whole case would have been committed to the Sessions Court. Effect of separation resulted in a situation wherein commitment of the accused to Sessions to stand trial for offences u/s 5 of the Official Secrets Act and Section 120-B Indian Penal Code was no more necessary and, thereforee, the case was taken out of any of the three categories of the cases contemplated by Section 337 of the Code. thereforee, this decision of the Supreme Court would be available to the prosecution only in cases where for some reasons, the offence in question is to be triable exclusively by a Court of Sessions'. The High Court further observed that in the facts of the case before it, all the offences which are mentioned in the complaint arose out of the same transaction and the trial thereof was not separable so that if the committing Magistrate came to the conclusion that the accused persons should be committed to a Court of Sessions to stand their trial, it would not be possible for him to order a separate trial for the offences which are not exclusively triable by the Court of Sessions. It was observed that in the instant case, it will not be possible for the committing Magistrate to split up the trial of the accused and the decision of the Supreme Court in the case of Hira Lal Girdhari Lal Kothari (supra) would not come in the way of granting pardon for all the offences mentioned in the complaint. Reference was also made to the observations of the Supreme Court in the case of State of Andhara Pradesh v. Chimalapati to the extent that the very object of the provisions contained in Section 337 of the Code is to allow pardon to be tendered in cases where a grave offence is said to have been committed by several persons so that with the aid of the evidence of the persons pardoned, the offence can be brought home to the rest. It was further observed that it is this object which would be frustrated if the Court re fuses to tender pardon in case of grave offences merely on the ground that the accused person is also sought to be tried for an offence turn which pardon could not be granted if that offence stood alone for trial.

(11) The two approvers were sought to be disqualified as approvers on the ground that one of the offences, forming subject-matter of the complaint, viz. Section 5 of the Import & Export (Control) Act, 1947 was, at the material time, punishable with a maximum term of two years, and if the complaint was 388 based exclusively on the allegation of the commission of such an offence no pardon could have been tendered, in relation to that offence, and an approver, who had been otherwise validly tendered pardon could not be treated as an approver qua such a complaint and in that event the case would have been squarely covered by the decision of the Supreme Court in the case of Hira Lal Girdhar Lal Kothari (supra). The allegations in the present case are of a composite nature involving not only an offence under Section 5 of the Import & Export (Control) Act, 1947 but also offences under section 420 Ipc, 468 Ipc and 471 Indian Penal Code and these offences fall within the terms of Sub-section (2) and Section 306 of the Code. These offences are based on allegations, which form part of the same transaction, and as has been pointed out above, where some of the offences alleged are within the terms of Section, while the others are not, but they arise out of the same transaction, the pardon would ensure for all the offences, particularly, where the complaint, with reference to the offence, which is not so covered, could not be split up. There is, thereforee, no force in this contention.

(12) It was next urged that the aforesaid two persons would not be approvers qua the complaint case as they were granted pardon with reference to the offences, forming subject-matter of the charge-sheet, and no pardon was tendered to them with reference to the offences, forming subject-matter of the complaint case. This contention seems to be misconceived. A reference to the communication from the Deputy Director of Revenue Intelligence, dated September 28, 1974, which resulted in the registration of case no R.C. 20/74 F.S. Ii on November 16, 1974, and is incorporated in the First Information Report, shows that the case was registered with reference to composite transactions and took within its sweep not only the allegations that the principal accused persons entered into a conspiracy with certain others to obtain import licenses by commission of fraud and forgery and committed the offences of fraud, forgery and use of forged documents as genuine pursuant to it to obtain a large number of import licenses, but also the further allegation that these principal accused were party to a conspiracy with certain others to get clearance of goods from the customs on the basis of fraud and forgery,, conspiracy in relation thereto, and misutilisation of the imported material in contravention of the conditions of the licenses. The investigation that followed was also a composite one conversing the activities of the principal accused and two different sets of accomplices during the entire period from 1971 to 1974 spanning the various stages from obtaining import licenses to the clearance of goods and of misutilisation of the imported material by various acts of fraud and forgery, including the use of forged documents as genuine. The application dated April 14, 1976, made on behalf of the C.B.I., to the Chief Metropolitan Magistrate, Delhi, by which pardon was sought for the approvers specifically mentions the case registered by C.B.I, based on these composite allegations. What is more, the application itself specifically refers, interalia, to the allegations of misutilisation of the imported goods and of fraud and forgery in relation to the clearance, which form subject-matter of the complaint. The identical orders of the Chief Metropolitan Magistrate of April 15, 1976, no doubt, do not make a specific reference to the allegations of fraud or forgery in relation to the clearance of goods or of the misutilisation in relation thereto, but these orders do refer to the offences, both under the Indian Penal Code and Section 5 of the Import & Export (Control) Act, 1947 and describe these offences as 'forming subject-matter of investigation of case Fir No 20/74-F.S. Ii dated November 16, 1974.' It follows, thereforee, that the First Information Report, the registration of the case, the investigation, the application for grant of pardon, and the orders granting pardon related to composite offences, including offences which form subject-matter of the complaint case. A contention was raised on behalf of the petitioner that the allegations, forming subject-matter of the charge-sheet, and those forming subject-matter of the complaint case constitute'Separate'and'distinct' 'transactions' involving too 'separate' and 'distinct conspiracies', between the principal accused and two separate sets of accomplices, and support was sought for this contention from the averments to the above effect made on behalf of the Cbi in the affidavit filed by it earlier in the proceedings in the Supreme Court for the transfer of the complaint from Bombay Court to Delhi Court. True, the conspiracy with the object of obtaining Import licenses, inter alia, by the commission of offences of fraud and forgery could be said to be distinct, as indeed, distinguishable, from the subsequent conspiracy which had for its object the illegal clearance of goods and misutilisation of the imported material. The two sets of allegations may also, one reckoning, be said to constitute two different 'transactions'. But these are by no means wholly unconnected nor can it be said that the two conspiracies and transactions had no nexuus or common element. The two principal accused are said to be the brain behind all that is said to have happened. They are alleged to have involved one set of persons with the object of obtaining import licenses in fake names by the commission of offences of fraud and forgery and to have been involved with a different set of persons with a view to take advantage of those licenses and committed offences of fraud and forgery in the clearance and misutilisation of the imported material. As has been pointed above, the investigation, then in progress, was in relation to the composite allegations encompassing both the so-called transactions and conspiracies. If the Investigation was composite and pardon was sought and granted in relation to the allegations, forming subjectmatter of such composite investigation, the Approvers, who were recipients of the pardon, would not cease to be approvers merely because on account of the legal difficulty separate cases had to be filed-one on a charge-sheet, and the other on a complaint.

(13) It was then urged that the procedure of Section 244 of the Code having been followed in the complaint case, in that five witnesses have already been examined the procedure of Section 306 of the Code could not be attracted, particularly having regard to the fact that the prosecution itself had stated in the complaint that the two Approvers were proposed to be examined as 'witnesses' at the trial of the complaint. This contention merely begs the question. If the Approvers can be legitimately treated as Approvers qua the complaint as well, having regard to the various features referred to above, they would not be disqualified as Approvers and the prosecution would not be prevented from invoking the provisions of the Section 306 of the Code merely because either under a misapprehension of the law or because either under a misapprehension of the law or because of the rather rigid stand taken by the Cbi in the proceedings in the Supreme Court to the effect that the two cases were 'distinct' dealing with two apparently different 'conspiracies' and 'transactions, 'the procedure provided in Section 244 of the Code was followed.

(14) Lastly, it was urged, and this is the real grievance of the petitioner, that the confessional statements of the two Approvers, recorded by the Magistrate, before the pardon was granted to them, by and large, refer to the role of the two Approvers, as indeed, contain disclosures, relative only to the conspiracy and the overt acts, which form subject-matter of the charge-sheet and that the Approvers make only vague references to the subsequent conspiracy and the transactions at the subsequent stages of the activity of the principal accused in enriching themselves on the basis of the import matter of the complaint case. This contention was sought to be buttressed by the circumstance that one of the Approvers, Advani, according to his confessional statement remained in the service of the Principal accused persons only for a period of four months, and the further circumstance that, by and large, both the Approvers do not claim to be accomplices and do not claim to have played any part in relation either to the clearance of the goods, fraud or forgery, committed in relation to clearance or the misutilisation of the imported material. It was further urged that the confessional statements of the approvers do not fully cover the activities of the principal accused in relation to the fraud allegedly committed with a view to obtain licenses in their entirety and one of the approvers does not even refer to one of the three fake firms. A reference to the confessional statements of the two Approvers. to an extent, supports this averment but the contention that these persons cease to be Approvers for these reasons suffers from a serious fallacy. If the tender of pardon to the two Approvers had reference to the composite allegations and the pardon was granted to them on the condition that they would make true disclosure of all facts within their knowledge in relation to the composite allegations, they would be competent as Approvers in relation to both the cases. The confessional statement is not a sine-qua-non for grant of pardon. The approver, whether as Approver or as an ordinary witness is not necessarily to bound confine his eventual statement at the trial to the statement already made by him, either under Section 161 of the Code or under Section 164 of the Code. Such a person, as indeed, any other witness, is free to add to or substract from such previous statement, whatever may be the criticism that such addition or deletion may attract. Such addition or deletion may, for example, be characterised as an attempt to introduce an improvement. It may also have its impact on his credibility as a witness or may even affect the authenticity of the testimony. The contention further ignores the fact that the status of a person as an Approver is not necessarily dependant on the statement that he makes before or at the time of grant of pardon, if he has been tendered pardon in relation to the allegation with reference to which pardon has been tendered. It is also not necessary that an approver is an accomplice in relation to all the culpable activity of the accused persons. It is also good to remember in this context that the procedure of sub-section (5) of Section 306 is not attracted merely because there is an Approver in a case. It is also not attracted merely because such an Approver has been 'produced' before the Court. It is attracted only where not only there is an Approver but he has also been 'examined under sub-section (4)'. There is a distinction between the 'production' of a witness in a court, and his 'examination' by the court. If neither of the two Approvers eventually make any statement before the court, seized of the complaint; which may be relevant to the allegations forming subject-matter of it, I fail to see how such a person would be examined by that Court. These persons, thereforee, have the initial qualification as Approvers, but the provision of Sub-section (4) & (5) would be attracted only if, on the statement they make, they are also competent witnesses in the sense that they make a statement in court which is relevant to the questions in controversy in the proceedings. It is not possible to envisage at this stage what statement these persons would make when they are sought to be examined as Approvers, and if in theory they are not bound to confine their statements in court to the confessional statements, already made by them, it would be pre-mature for this court to rule if the second condition of subsection (5) or the condition of sub-section (4) would be satisfied so as to attract the procedure of that Section. These persons, nevertheless, satisfy the initial test of being Approvers qua the allegations made in the complaint case, but whether or not the procedure of Section 306(5) of the Code would be followed, would depend on the statement that they choose to make. It is, thereforee, not possible to disqualify them at this stage as Approvers in relation to the complaint case.

(15) For all these reasons, the petition fails and is hereby dismissed. The trial of the complaint has remained stalled for some time on account of the controversy raised in the petition and it would, thereforee, be in the interest of justice that the Court proceeds with the matter with expedition to make up for the time lost in the proceedings leading to the present petition.


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