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Gagu Vs. the State of Gujarat and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in1975CriLJ670; (1974)GLR584
AppellantGagu
RespondentThe State of Gujarat and anr.
Cases ReferredRambharose Narbadaprasad v. Emperor
Excerpt:
.....in or privy to an offence. thakore urged that the order passed by the learned magistrate tendering pardon to the accused was clearly wrong. it is true that if there is a previous statement of the accused, that would be helpful to the magistrate as well as to the defence in order to find out whether a person concerned has made a true disclosure of the circumstances relating to the offence within his knowledge. it may be noted that as provided in sub-section (2-a) of section 337- in every case where a person has accepted a tender of pardon and has been examined under sub-section (2), the magistrate before whom the proceedings are pending shall, if he is satisfied that there arc reasonable grounds for believing that the accused is guilty of an offence, commit him for trial to the court of..........of section 337 of the code do not make it incumbent on the prosecution to get a statement of the accused recorded under section 164 of the code before a pardon is tendered to him. in my opinion, it is also not obligatory on the prosecution to record such a statement under section 164 of the code even after a pardon is tendered to him. i do not agree with mr. thakore that the statement referred to in sub-section (2) of section 339 of the code indicates that before the accused who is tendered a pardon is examined as a witness, his statement should be recorded by the prosecution. sub-section (2) merely states that the statement made by a person who has accepted a tender of pardon may be given in evidence against him at such trial, when he is prosecuted for not complying with the condition.....
Judgment:
ORDER

A.A. Dave, J.

1. This revision application raises a very interesting question of law relating to the power of the court to tender a pardon with a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in or privy to an offence.

2. In order to appreciate the point in question, it will be worthwhile to refer to the salient facts of this case. A charge sheet was submitted by the police against seven accused alleging that in furtherance of the common intention to murder the deceased, they all committed his murder punishable under Section 302, I. P. C. read with Section 34, I. P. C. It was alleged that accused No. 1 had illicit relationship with the wife of the deceased Gagu. So accused No. 1 wanted to kill Gagu. He, therefore, is alleged to have taken into confidence other accused and in furtherance of their common intention, Gagu is alleged to have been murdered. One Arjan Khengar is one of the seven accused persons. The statements recorded by the police disclosed that deceased Gagu was last seen in the company of Arjan Khengar. It is stated by the witnesses before the police that it was this Arjan Khengar who had taken away Gagu while he was in the Salt Works and thereafter, he was not seen alive. After Arjan Khengar was arrested, he was sent to the Taluka Magistrate for making a confession. However, Arjan Khengar refused to make any confession stating that he had not committed any offence. Arjan also sent an application to the Court from the jail for being released on bail on 1-2-1973. Thereafer, a typed application bearing the thumb impression of the accused, Arjan dated 16-2-1973 was sent to the court stating that if a pardon was given to him, he was prepared to make a true disclosure of all the facts. On 2-4-1973, the accused was called before the learned Magistrate. The accused-Arjan Khengar withdrew his application foe bail. After considering bis application, for pardon, the learned Magistrate passed an order under Section 337, Criminal P. C. granting him a pardon on condition that he mads a true disclosure of the facts concerning the offence. Thereafter, while his statement as envisaged under Section 337 (2) was to be recorded by the learned Magistrate, original accused No. 1 filed a revision application in the sessions court challenging the order of the learned Magistrate giving pardon to the accused-Arjan Khengar. The learned Sessions Judge refused to interfere with the order passed by the learned Magistrate. Accused No. 1 therefore, has preferred the present revision application.

3. Mr. H. K. Thakore, learned Advocate for the petitioner submitted that no pardon could be tendered to the accused unless there was material before the court to find out that he would make a full and true disclosure of the whole circumstances within bis knowledge relating to the offence. Mr. Thakore submitted that in the instant case, accused Arjan Khengar had already made a statement before the Taluka Magistrate that he did not know anything about the offence and that he was not guilty. Under the circumstances, Mr. Thakore urged that unless there was material before the Court that accused Arjan Khengar was directly or indirect ly concerned in or privy to the offence, no pardon could be tendered to him. He submitted that the very statement of the accused before the Taluka Magistrate would go to show that he had no knowledge with regard to the present offence. Under the circumstances, Mr. Thakore urged that the order passed by the learned Magistrate tendering pardon to the accused was clearly wrong. He invited my attention to Section 339, Criminal P. C. which states -

339 (1)- Where a pardon has been tendered under Section 337 or Section 338, and the Public Prosecutor certifies that in his opinion any person who has accepted such tender has, either by wilfully concealing anything essential or by giving false evidence, not complied with the condition on which the tender was made such person may be tried for the offence in respect of which the pardon was so tendered, or for any other offence of which he appeared to have been guilty in connection with the same matter;

Sub-section (2) states-

The statement made by a person who has accepted a tender of pardon may be given in evidence against him at such trial.' Referring to Sub-sections (1) and (2) of Section 339, Criminal P. C, Mr. Thakore very vehemently urged that the statement envisaged by subsection (2) would mean a statement of the accused to whom pardon tendered recorded prior to his evidence in court. He urged that the statement referred to in sub-sec. (2) would not include a statement contained in his evidence1 before the court Mr. Thakore, therefore, urged that it was incumbent on the learned Magistrate while tendering pardon to the accused to record his statement under Section 164, Criminal P. C. before he was examined as a witness as envisaged in Section 337 (2), Criminal P. C.

4. Mr. G. T. Nanavaty, learned Assistant Government Pleader who appeared on behalf of the State supported the order passed by the learned Magistrate. He submitted that Section 337, Criminal P. C. did not envisage any statement of the accused to be recorded under Section 164 of the Code. He urged that the section merely provided that the Magistrate may tender a pardon on condition that the accused made a full and true disclosure of the circumstances relating to the offence within his knowledge. He submitted that this full and true disclosure of the circumstances is to be made by the accused when he is examined as a witness in Court and not necessarily prior to his examination as a witness in Court

5. In order to appreciate the rival contentions in their proper perspective, it will be worthwhile to refer to Section 337 (1) of the Code which states -

In the case of any offence triable exclusively by the High Court or Court of Session, or any offence punishable with imprison- ment, which may extend to seven years or any offence under any of the following sections of the Indian Penal Code, namely, Sections 161 165 165-A 216-A 369 401 435 and 477-A, the District Magistrate, a Presidency Magistrate, a Sub-Divisional Magistrate or any Magistrate of the first class may, at the stage of the investigation or inquiry 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 relating to the offence and to every other person concerned, whether as principal or abettor, in the commission thereof;' Thus, the first part of Section 337 (1) of the Code enumerates the offences in which the accused could be tendered a pardon. The second part enumerates the persons who can tender a pardon, and the concluding portion mentions the circumstances in which a pardon could be tendered. For our purpose, the last portion of Section 337 (1) is material. The purpose for tendering a pardon is to obtain evidence of any person supposed to have been directly or indirectly concerned in or privy to the offence. Thus, if a person is supposed to have been directly or indirectly concerned in or privy to the offence that is- if it is alleged that the person concerned has something to do with the offence and if it is found necessary to obtain his evidence, the authority mentioned above may tender a par. don to such a person on condition that he makes a true and full disclosure of the whole of the circumstances within his knowledge relating to the offence. The only condition which an authority can impose on the accused before tendering pardon to him is that he should make a full and true disclosure of all the facts relating to the offence within his knowledge. Sub-section (1-A) of Section 337 states-Every Magistrate who tenders a pardon under Sub-section (1) shall record bis reasons for so doing, and shall, on application made by the accused, furnish him with a copy of such record;

Thus, before tendering a pardon under subsection (1), it is obligatory on the learned Magistrate concerned to record his reasons for doing so. The pertinent question which arises for my consideration is-whether it is obligatory on the Magistrate to record a statement of the accused person in order to find out whether his evidence would be material for the purpose of an inquiry or trial, before tendering a pardon to him. In my opinion, Section 337 of the Code does not envisage recording of any statement of the accused before tendering a pardon to him, if there is sufficient material on record from which the Magistrate can come to the conclusion that in the interest of justice, it is necessary to tender a pardon to him with a view to obtaining his evidence in court. The learned Magistrate in the instant case has recorded his reasons. Me has referred to the statements of witnesses recorded by the police and in his opinion, in view of the extra-judicial confession made by the present accused to several persons, it is necessary that he was tendered a pardon in order that he may be examined as a witness in court. Looking to Section 337 of the Code, it is difficult to agree with Mr. Thakore that before tendering a pardon to the accused, it is incumbent on the Magistrate concerned to record his statement. In my opinion, no such statement is envisaged in Section 337 (1) or Section 337 (1-A) of the Code. Mr. Thakore, however, urged that if no statement of the accused is recorded prior to tendering a pardon to him, there is no guarantee that he will make a true disclosure of all the facts relating to the offence. He also made a grievance that if previous statement of the accused to whom a pardon is tendered is not recorded the defence will not be in a position to cross-examine him properly and there would be no guarantee that this accused may not involve other persons out of enmity existing between them. It is true that if there is a previous statement of the accused, that would be helpful to the Magistrate as well as to the defence in order to find out whether a person concerned has made a true disclosure of the circumstances relating to the offence within his knowledge. But it can also be found out from other evidence on record. During the course of the investigation, the police may have recorded state-ments of several persons who may have some knowledge about the incident in question. The Magistrate, therefore, before-tendering a pardon, after considering the prosecution case as disclosed from the police statements, may be of the view that in the interest of justice, it is necessary to tender a pardon with a view to obtaining his evidence in court. Thus, it is not necessary that in order to enable the Magistrate to tender a pardon to the accused, previous statement of the accused is necessary. In fact, normally an accused person is bound to deny his guilt before the police and subsequently he may be induced to make a true disclosure of the facts if he was promised a tender of pardon. In my Opinion, therefore, reading Sub-section (1) and 'Sub-section (1-A) of Section 337, of the Code, together, it is clear that there is no obligation on the Magistrate to record a statement of the person concerned before he is tendered a pardon with regard to the offences enumerated in the said section. The only condition which a Magistrate can place on the accused concerned before tendering a pardon to him is that he should make a full and true disclosure of all the facts within his knowledge with regard to the offence. After the pardon is tendered to the accused, Sub-section (2) says that every person accepting 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. Thus, if the Magistrate tenders a pardon to the accused, person on condition of his making a full disclosure of all the facts within his knowledge, and if the accused accepts a tender of pardon on such condition, sub-sec. (2) states that it is incumbent on the prosecution to examine him as a witness in the court of the Magistrate taking cognizance of the offence and also in the subsequent trial if any.

6. Mr. Thakore, however, urged that if a statement of the accused is not recorded before a pardon is tendered to him, there is no guarantee that he will make a full and true disclosure of the facts relating to the offence within his knowledge. He also urged that in such a case, it will be difficult for the defence to cross-examine him when he is examined as a witness before the Magistrate. In the absence of any such statement of the accused prior to his being examined as a witness in court, there was every likelihood of pre-varication in the matter and there is no guarantee that the accused would not falsely involve other persons with a view to saving his own skin. In my opinion, though there may be some force in the submission made by Mr. Thakore, provisions of Section 337 of the Code do not make it incumbent on the prosecution to get a statement of the accused recorded under Section 164 of the Code before a pardon is tendered to him. In my opinion, it is also not obligatory on the prosecution to record such a statement under Section 164 of the Code even after a pardon is tendered to him. I do not agree with Mr. Thakore that the statement referred to in Sub-section (2) of Section 339 of the Code indicates that before the accused who is tendered a pardon is examined as a witness, his statement should be recorded by the prosecution. Sub-section (2) merely states that the statement made by a person who has accepted a tender of pardon may be given in evidence against him at such trial, when he is prosecuted for not complying with the condition on which a tender of pardon was made. 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. I do not agree with Mr. Thakore that the statement given on oath in a court would amount to oral evidence and that whenever the word 'statement' is used, that would mean a statement recorded prior to the trial and not a statement made at the trial. In fact, the evidence as defined in Section 3 of the Evidence Act means all the statements which the court permit and require to be made by witnesse in relation to matters of fact in an inquiry, such statements are called oral evidence. Therefore. there is no substance in the submission made by Mr. Thakore that when-ever the word 'statement' is used, it would :necessarily mean a statement recorded prior to his evidence in court. In my opinion, the statement recorded in court would all the -same be termed a statement and the use of the word 'statement' in Sub-section (2) of :Section 339 docs not necessarily indicate that the Legislature meant a statement recorded prior to the trial. It may be noted that as provided in Sub-section (2-A) of Section 337-

In every case where a person has accepted a tender of pardon and has been examined under Sub-section (2), the Magistrate before whom the proceedings are pending shall, if he is satisfied that there arc reasonable grounds for believing that the accused is guilty of an offence, commit him for trial to the court of Session or High Court, ::is the case may be.

Thus, except the offences under Sections 161 165 165-A 216-A 369 401 435 and 477-A where the accused is to be tried by a special Judge, he is to be committed to the court of session if the Magistrate is of the opinion rihat there are reasonable grounds for believing that he is guilty of the offence. Thus, if he is tried by a court of session after he is committed there and if ultimately in the opinion of the public prosecutor, the evidence given by the accused was not found satisfactory and in his opinion, the accused had not made a full disclosure of all the facts within his knowledge, if he is prosecuted, the statement of the accused recorded by the Magistrate under Section 337 (2) could be used as evidence against him at such trial. In any opinion, reference to the statement in Sub-section (2) of Section 339 would include a statement recorded by a Magistrate under Section 337 (2) and not merely a statement which may have been recorded prior to his examination by the Magistrate as provided in Sub-section (2).

7. Mr. Thakore invited my attention to the case of Rambharose Narbadaprasad v. Emperor AIR 1944 Nag 105 : 45 Cri T J 673 (FB) wherein the Full Bench of the 'Nagpur High Court at page 119 of AIR : at p. 688 of Cri LJ had observed as under:

Bose. J. asked why. if the statement recorded under Section 164, Criminal P. C. is ;admissible, any other statement recorded by the police under Section 161 of the Code should not also be admissible, and why, if Sections 337 and 343 of the Code override Section 24, Evidence Act, they should not also override Section 162 of the Code. The statement referred to in Section 339 of the Code could not include any statement recorded before the tender of a pardon and it is extremely unlikely that after the approver has wade a full and true disclosure to a Magistrate, any further statement of his should be recorded by the police. If it were so recorded, then the provision in Section, 162 of the Code which prohibits the use of that statement for any purpose at any inquiry or trial save as provided in that section would come into play. Sections 337 and 343 of the Code contain a specific qualification of the general principle laid down in Section 24, Evidence Act, but there is nothing in Section 339 (2) to suggest any qualification of the principle laid down in Section 162.' It was further observed-When an approver has been tendered a pardon under Section 337 (1), Criminal P. C. and he has accepted the tender, his statement can be legally recorded under Section 164, on affirmation. Such a statement will be admissible in evidence against him at a subsequent trial, after forfeiture of the pardon, for an offence in respect of which the pardon was tendered.

It will thus be seen as observed by the Full Bench of the Nagpur High Court that it would be legal for the prosecution to get a statement of the accused recorded under Section 164 of the Code after a pardon is tendered to him and in case such a statement is recorded, it could be used as evidence against him when he is prosecuted under Section 339 of the Code. But that does not lead to the conclusion that the prosecution must necessarily send him to the Magistrate for recording a statement under Section 164 of the Code. In my opinion, in the context of Section 337 of the Code, the word 'statement' used in Section 339 (2) would also refer to the statement recorded by a Magistrate under Sub-section (2) of Section 337 of the Code and not merely a statement recorded prior to his evidence recorded by the Magistrate as provided in Sub-section (2) of Section 337 of the Code.

8. It is true that if a statement under Section 164 of the Code is recorded before he is examined by the Magistrate under Section 337 (2) of the Code, that would be useful from the point of view of defence. It may also serve as a safeguard in order to ascertain the truth or otherwise of the testimony of the accused recorded by the Magistrate under Sub-section (2) of Section 337. If the prosecution, therefore, thinks fit to get a statement recorded under Section 164 of the Code, it would be at liberty to do so. But the prosecution cannot be compelled to get the statement recorded under Section 164 of the Code before he is actually examined by the Magistrate as provided in Section 337 (2) of the Code.

9. In the result, the revision application fails and is rejected.


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