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R. Ravindran Nair and ors. Vs. Superintendent of Polic, Special Police Establishment, C.B.i. and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKerala High Court
Decided On
Judge
Reported in1981CriLJ1424
AppellantR. Ravindran Nair and ors.
RespondentSuperintendent of Polic, Special Police Establishment, C.B.i. and ors.
Cases Referred and Hari Charan Kurmi v. State of Bihar
Excerpt:
.....the evidence of any person' is satisfied. the supreme court considered the scope of power of the special judge to grant pardon and emphasised the role which the public prosecutor has to play in a matter like this. ..8. section 30 of the indian evidence act states that where more than one accused are tried jointly for the same offence and the confession made by one of them affecting himself and the co-acoused is proved, the court may take into consideration such confession as against such other person as well as the person who makes such confession. as denned, evidence' means and includes all statements which the court permits or requires to be made before it by witnesses (and they are called oral evidence) as well as all documents produced for the inspection of the court (which are..........petitions filed by accused 1, 2 and 7 in c c. no. 6 of 1975 on the file of the court of the special judge (c. b. l/s. p. e.), ernakulam are directed against an order passed by the special judge in criminal m.p. no. 816 of 1976, tendering pardon to accused nos. 5 and 6 therein under section 8 of the criminal law (amendment) act, 1952 (for short the 'act') read with section 306 of the code of criminal procedure, 1973 (for short the 'code').2. the superintendent of police, s. p.e./c.b.i., kerala laid charges against seven accused before the special judge, ernakulam alleging offences under sections 120b, 409, 468, 471, 477a, i.p.c. read with sections 5(2) and 5(1)(c) and (d) of the prevention of corruption act, 1947, the charges related to certain quantity of fertilisers intended to.....
Judgment:
ORDER

U.L. Bhat, J.

1. These revision petitions filed by accused 1, 2 and 7 in C C. No. 6 of 1975 on the file of the Court of the Special Judge (C. B. L/S. P. E.), Ernakulam are directed against an order passed by the Special Judge in Criminal M.P. No. 816 of 1976, tendering pardon to accused Nos. 5 and 6 therein under Section 8 of the Criminal Law (Amendment) Act, 1952 (for short the 'Act') read with Section 306 of the Code of Criminal Procedure, 1973 (for short the 'Code').

2. The Superintendent of Police, S. P.E./C.B.I., Kerala laid charges against seven accused before the Special Judge, Ernakulam alleging offences under Sections 120B, 409, 468, 471, 477A, I.P.C. read with Sections 5(2) and 5(1)(c) and (d) of the Prevention of Corruption Act, 1947, The charges related to certain quantity of fertilisers intended to be supplied from the F. A. C. T, to its dealers in the State and which was alleged to have been diverted and sold unauthorisedly to dealers outside the State. Accused 1, 2 and 7, who figure as revision petitioners in this Court, are respectively the Sales Manager and Sales Officer of the F, A. C. T. and the dealer outside the State who ultimately received the consignment. The 5th accused is the contractor whose lorry was used for transport of the goods, The 6th accused is an authorised representative of the F, A. C. T. in Palghat District. Charges were framed against all the accused by the Special Judge and they pleaded not guilty. Subsequently, accused Nos. 5 and 6 filed Criminal M. P. No. 816 of 1976 offering full and true disclosure of the whole of the circumstances within their knowledge relating to the offences and praying for pardon under Section 8 of His Act read with Section 306 of the Code. The other accused opposed the application. The prosecutor supported and joined in the request made by accused 5 and 6. The objections raised by the other accused were overruled by the Special Judge, who proceeded to grant pardon on the requisite statutory conditions. The legality and propriety of this order is now challenged.

3. A preliminary objection has been raised by the Public Prosecutor regarding the maintainability of the revision on the ground that the order sought to be revised is an interlocutory order as contemplated under Section 397(2) of the Code. It is true that power of revision cannot be exercised in relation to an interlocutory order passed by a criminal court. I am not persuaded to agree that the order passed by the learned Special Judge is an interlocutory order, that is, an order of an interlocutory nature. The order under challenge in these revisions, is a final order regarding accused 5 and 6 It is by this order that accused 5 and 6 have been pardoned. When it is said that accused 5 and 6 are pardoned, it means that they no longer have the status of accused persons, Proceedings against them are terminated subject, of course to their fulfilling the condition stipulated by the Special Judge in granting pardon and subject to the possibility of a trial under Section 308 of the Code. If they fulfil the conditions stipulated for pardon, the pardon continues to have legal effect and they cannot be tried. Viewed in this light and at least to this extent, the order tendering pardon is a final order so far as the accused 5 and 6 are concerned and it cannot be treated as an interlocutory order. It is argued that the revision petitioners are not aggrieved by this order. I do not think identity of the person aggrieved should be mixed up with the interlocutory or final nature of the order. The order is final in so far as the status and liability of the approvers are concerned. The other accused are clearly aggrieved by the order and if the order is not interlocutory in its nature, I see no reason why the other accused should not seek their revisional remedy against the impugned order. The preliminary objection is overruled.

4. Confession statements of accused 5 and 6 had been recorded by a competent Magistrate under Section 164 of the Code during the course of the investigation and on the motion of the investigator. When accused 5 and 6 made the motion for pardon, their confessions under Section 164 were already available with the Special Judge. It is contended by the learned Counsel for the revision petitioners that these confessions are evidence not only against the makers, but also against the co-accused by virtue of Section 30 of the Indian Evidence Act and when such evidence is already available, it cannot be said that the condition contemplated in Section 8 of the Act for granting pardon, viz., 'with a view to obtain the evidence of any person' is satisfied. In other words, the submission is that the evidence of accused 5 and 6 in the form of statements under Section 164 has already been obtained and there is nothing more that can be obtained from them in the form of evidence and therefore pardon should not have been tendered by the learned Special Judge. The trial court placed reliance on two decisions in Pascal Fernandes v. State of Maharashtra : 1968CriLJ550 and Gagu v. State of Gujarat 1975 Cri LJ 670. The learned Counsel for the revision petitioners sought to distinguish these decisions on facts and contended that they are not applicable to the facts of the case.

5. Section 8 of the Act which is similar to Sections 306 and 308 of the Code (same as Sections 337 and 338 of the 1898 Code) states that the pardon can be granted by the Special Judge 'with a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in or privy to an offence' on condition that he makes '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.' Sub-clause (3) of Section 8 states that the provisions of the Code would apply to the pardon to be granted by the Special Judge in so far as there is no inconsistency between the provisions of the Code and the Act. Section 306 (4) of the Code requires that the person accepting the tender of the pardon must be examined as a witness in the court of the Magistrate taking cognizance of the offence and in the subsequent trial, if any. Section 308 of the Code lays down that where the person accepting the tender of pardon resiles from the condition (which of course has to be certified by the Public Prosecutor) he may be tried for the offence in respect of which the pardon was tendered, etc. and in such a trial, any statement made by him and recorded by the Magistrate under Section 164 of the Code or by a Court under Section 306(4) may be given in evidence against him. The parallel provision in the Code of 1898 stated that the statement made by him may be given in evidence against him at the trial.

6. In Pascal Fernandes's case : 1968CriLJ550 the Special Judge ordered pardon to be granted to one of the co-accused and further directed his statement to be recorded under Section 164 of the Code (of 1898) on a motion made by the particular accused and without any request made by the Prosecutor. However, when the matter came up before the High Court, the Public Prosecutor joined in the motion and therefore, the order was confirmed. The Supreme Court considered the scope of power of the Special Judge to grant pardon and emphasised the role which the Public Prosecutor has to play in a matter like this. Supreme Court did not decide the question in controversy in the present case. However, I would refer to an observation made by the Supreme Court at paragraph 15 of the judgment:

(15)...Section (8) of the Criminal Law Amendment Act is enabling. Without recourse to it an accused person cannot be examined as a witness in the same case against another accused. To determine whether the accused's testimony as an approver is likely to advance the interest of justice, the Special Judge must have material before him to show what the nature of that testimony will be....

(emphasis supplied by me).

7. In Gagu's case 1975 Cri LJ 670, a learned single Judge of the Gujarat High Court had to consider the validity of the pardon granted by the Magistrate, who further directed a statement of the approver to be recorded under Section 164 of the Code (of 1898). High Court did not decide the controversy which has arisen in this case. But, with reference to Section 339 of the Code of 1898 (Parallel to Section 308 (2) of the Code) referring to the admissibility of a statement recorded by a Magistrate under Section 337 (Parallel to Section 306 of the Code), the learned Judge observed as follows after referring to Section 339 (2) of the old Code:

6...But it does not necessarily lead to the conclusion that a statement ought to be recorded before the accused is examined as a witness. The word 'statement' used in Sub-section (2) would not necessarily mean a statement recorded under Section 164 of the Code and not a statement of the accused recorded by a Magistrate after a pardon is tendered to him....

8. Section 30 of the Indian Evidence Act states that where more than one accused are tried jointly for the same offence and the confession made by one of them affecting himself and the co-acoused is proved, the court may take into consideration such confession as against such other person as well as the person who makes such confession. Section 164 of the Code authorises confession to be recorded by a competent Magistrate in the manner provided therein, Reading the two provisions together, it is argued that the confessions of accused 5 and 6 in this case which have already been recorded by a competent Magistrate under Section 164 of the Code, could be used as evidence against the co-accused in the trial to be held by the Special Judge and therefore material containing a full and true disclosure of the whole circumstances of the occurrence are already available before the Court and hence there is no question of the Special Judge granting pardon 'with a view to obtain the evidence' of the person as contemplated under Section 8 of the Act and hence the jurisdiction to tender pardon cannot be exercised.

9. 'Evidence' is denned in Section 3 of the Indian Evidence Act. As denned, 'evidence' means and includes all statements which the court permits or requires to be made before it by witnesses (and they are called oral evidence) as well as all documents produced for the inspection of the court (which are called documentary evidence). Confession under Section 164 of the Code cannot be equated to 'statement which the Court permits of requires to be made before it by witnesses.' A statement as contemplated in the first part of the definition is only a deposition recorded by the Court which has to consider the confession and not an earlier statement made by a witness or accused. Confession under Section 164 of the Code is only an earlier statement and given in the absence of the co-accused, not given on oath and not tested by cross-examination. It is a statement which lacks all the three qualities inhering in a deposition of a witness. Confession under Section 164 of the Code is also not a document as contemplated in the second part of the definition of 'evidence'. Hence, technically speaking, it is not 'evidence' as defined in the Indian Evidence Act. Even otherwise, Section 30 of the Indian Evidence Act does not equate confession recorded under Section 164 of the Code with 'evidence' as defined in the Indian Evidence Act. All that Section 30 of the Evidence Act states is that the court 'may take into consideration such confession'. The section carefully refrains from using the word 'evidence' in the context and states only 'take into consideration.' This distinction has been maintained notwithstanding the fact that Sub-section (2) of Section 164 of the Code requires the Magistrate to caution the accused that the proposed confession may be used as evidence against him. The word 'evidence' is obviously used in Section 164 (2) of the Code only in a general sense and not in the sense in| which it has been defined in the Evidence Act. If such a prior confessional is 'evidence', it is obligatory on the Court to take it into account or consideration, for court has a duty to take) into consideration all 'evidence'. In other words, court cannot refrain from taking into consideration any 'evidence'. Section 30 of the Evidence Act does not render it obligatory on the Court to take into consideration 'confession' of an accused. It only enables a court to take it into consideration. It cannot also be treated as substantive evidence against co-accused. It can only be used to assure the court that its proposed conclusion on the basis of other evidence is right. It provides an additional reason for believing the Other evidence. Though in a general way, a prior confession can be said to be evidence, it is not evidence as defined in the Indian Evidence Act. This view is also strengthened by Section 133 I of the Evidence Act, which implies that evidence of an accomplice (the evidence which an approver gives in court is accomplice evidence) is substantive evidence and 'evidence' as denned in Section 3, though of a tainted nature. I am fortified in my view by the decisions of the Supreme Court in Kashmira Singh v. State of M.P. : 1952CriLJ839 , Nathu v. State of U.P. : 1956CriLJ152 , Ramchandra v. State of U.P. : 1957CriLJ559 and Hari Charan Kurmi v. State of Bihar : 1964CriLJ344 . Therefore, it cannot be said that because the confessional statements of accused 5 and 6 are available in the records, their evidence is available to the Court.

10. A plain reading of Section 8 of the Act does not show that where a prior confession of an accused is available in a case, it will disentitle the court or Special Judge from tendering pardon to him. Pardon can be tendered only with a view to 'obtain evidence of that person'. What is meant by 'obtaining the evidence of a person'? Giving this clause its plain meaning, it can only mean to 'obtain the oral evidence of the person in court.' That is why Section 306 Sub-clause (4) of the Code requires that after he accepts the .tender of pardon, he will be examined as a witness in court. The aim of the court in granting pardon is only to obtain his 'evidence', that is, the result of his examination in court as a witness under Section 306 (4) of the Code, which means his deposition in the court. When such is the aim it cannot be said that there should not be a prior confession made by such a person. Section 8 of the Act or Section 306 of the Code does not show that where there is a pre-existing confession, the jurisdiction of the Court to tender pardon will be lacking or is taken away, it is true that even where pardon is not tendered under these provisions of law, the prior confession, either judicial or extra-judicial or oral or in writing, is available to be utilised in the manner contemplated by the Code and the Evidence Act. The confession is available for use irrespective of whether pardon is tendered under Section 8 of the Act or under Section 306 of the Code. These provisions of the law have no reference to the previous confession. The legislative intent underlying these provisions is to secure the 'evidence of the accomplice' and that is the oral evidence of the accomplice in court. The fact that there is already a confession recorded under Section 164 of the Code cannot be a factor weighing against tender of pardon.

11. Far from a prior confession implying the absence of jurisdiction in the court to tender pardon or being a factor weighing against tender of pardon, the background of these provisions and the procedure to be followed as well as the observations of the Supreme Court and the Gujarat High Court extracted above, would show that it is { desirable that a statement of the accomplice is available already not only tot enable the Prosecutor to make up his mind whether he must make a request to tender pardon or to join in the request of the accomplice for pardon, but also to safeguard the interests of the defence which will thereby come to know of the circumstances which the approver is expected to speak in court. If a prior confession is desirable for the aforesaid purposes, it cannot be that the existence of such a confession would disentitle the Court from exercising the jurisdiction under Section 8 of the Act or under Section 306 of the Code or would be a factor to negative the tender of pardon.

For the reasons mentioned above, I am unable to agree that the learned Special Judge has committed any illegality or impropriety or error in granting the pardon to accused 5 and 6. Revision Petition is accordingly dismissed.


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