Bangaru Laxman vs State Tr.C.B.I & Anr

2. The challenge in these appeals is to an order dated

17.7.2006 by which the learned Special Judge granted

pardon to respondent No. 2-Shri T. Satyamurty on the

condition that the said respondent shall make full

disclosure of the facts and circumstances relating

1

to the offence committed by him in conspiracy with

the appellant and one Shri N. Umamaheshwar Raju.

3. The charge-sheet in this case was filed next day

i.e. 18.7.2006 against the appellant and Shri N.

Umamaheshwar Raju. The said order granting pardon

was challenged before the High Court but the said

challenge was turned down by the High Court by its

order dated 30.8.2010. The main argument by the

appellant in this case is that pardon could not be

granted by the Special Court prior to the filing of

the charge-sheet.

4. Certain facts which are relevant to decide this

controversy may be recorded.

5. On 21.4.2005 the confessional statement of the

respondent no.2 was recorded under Section 164

Cr.P.C. The said confessional statement of

respondent No.2 recorded his involvement and the

2

involvement of the appellant in the incident. On

considering the said statement, the prosecution

formed an opinion that the evidence of PW-2 is of

great value to the prosecution and thereafter on

3.7.2006 the prosecution moved an application before

the Court of the Special Judge for grant of pardon

to respondent No.2 so that respondent No.2 could be

examined as an approver in the case against the

appellant.

6. Thereafter, by an order dated 17.7.2006, pardon was

granted by the Special Court.

7. Mr. Sunil Kumar, learned counsel for the appellant

mainly assailed the order granting pardon, inter-

alia, on the ground that the Special Court has no

jurisdiction and authority to do so before the

filing of the charge sheet.

8. Learned counsel has of course raised an ancillary

grievance that at the stage of granting pardon the

3

Court had already formed its opinion on the guilt or

otherwise of the appellant rendering the trial a

mere mockery. However, his main argument was focused

on the jurisdiction of the Special Court to grant

pardon prior to the filing of the charge sheet.

9. In support of his submission, the learned counsel

referred to the provisions of Sections 306 and 307

of the Code of Criminal Procedure (hereinafter

referred to as the `Code') and also referred to

Section 5(2) of the Prevention of Corruption Act,

1988(hereinafter referred to as the `P.C.' Act)

10. For proper appreciation of the questions involved

in this case, those provisions are set out below:

"306. Tender of pardon to accomplice. (1) With

a view to obtaining the evidence of any person

supposed to have been directly or indirectly

concerned in or privy to an offence to which

this section applies, the Chief Judicial

Magistrate or a Metropolitan Magistrate at any

stage of the investigation or inquiry into, or

the trial of, the offence, and the Magistrate

of the first class inquiring into or trying the

offence, at any stage of the inquiry or trial,

4

may tender a pardon to such person on condition

of his making a full and true dis-closure 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.

(2) This section applies to-

(a) any offence triable

exclusively by the Court of

Session or by the Court of a

Special Judge appointed under the

Criminal Law Amendment Act, 1952

(46 of 1952);

(b)

any offence punishable with

imprisonment which may extend to

seven years or with a more severe

sentence.

(3) Every Magistrate who tenders a pardon

under sub-section (1) shall record-

(a) his reasons for so doing;

(b) whether the tender was or was not

accepted by the person to whom it

was made,

and shall, on application made by the

accused, furnish him with a copy of such

record free of cost.

(4) Every person accepting a tender of

pardon made under sub- section (1)-

(a) shall be examined as a witness

in the Court of the Magistrate

taking cognizance of the offence

and in the subsequent trial, if

any;

5

(b) shall, unless he is already on

bail, be detained in custody until

the termination of the trial.

(5) Where a person has accepted a tender

of pardon made under sub-section (1) and

has been examined under sub-section (4),

the Magistrate taking cognizance of the

offence shall, without making any further

inquiry in the case,-

(a) commit it for trial-

(i) to the Court of Session

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 (46 of 1952), if the

offence is triable

exclusively by that Court;

(b) in any other case, make over

the case to the Chief Judicial

Magistrate who shall try the case

himself.

307. Power to direct tender of pardon. At any

time after commitment of a case but before

judgment is passed, the Court to which the

commitment is made may, with a view to

obtaining at the trial the evidence of any

person supposed to have been directly or

indirectly concerned in, or privy to, any such

offence, tender a pardon on the same condition

to such person.

S.5(2) of P.C. Act:

6 S.5(2) A special Judge may, with a view to

obtaining the evidence of any person supposed

to have been directly or indirectly concerned

in or privy to, an offence, tender a pardon to

such person on condition of his making a full

and true disclosure of the whole circumstances

within his knowledge relating to the offence

and to every other person concerned, whether as

principal or abettor, in the commission thereof

and any pardon so tendered shall, for the

purposes of sub-sections (1) to (5) of section

308 of the Code of Criminal Procedure, 1973 (2

of 1974), be deemed to have been tendered under

section 307 of that Code."

11. Adverting to those provisions, the learned counsel

submitted that power to grant pardon is not an

inherent power of the Court. The said power has to

be specifically conferred and the learned counsel

submitted that power under Section 306 of the Code

cannot be exercised by a Special Judge under the

P.C. Act.

12. Learned counsel for the State on the other hand

submitted that the Court of Special Judge under the

P.C. Act is a Court of original jurisdiction.

Section 5 of the P.C. Act clearly enables a Special

Judge with the power to grant pardon and he further

7

submitted that Sub-section 3 of Section 5 of the

P.C. Act saves the provision of Sub-section 2 of

Section 5 and that Section 5(2) must be read with

Section 5(3). Sub-section (3) of Section 5 of the

P.C. Act is also set out below:

"5(3) Save as provided in sub-sections (1) or

sub-section (2), the provisions of the Code of

Criminal Procedure, 1973 (2 of 1974), shall, so

far as they are not inconsistent with this Act,

apply to the proceedings before a special

Judge; and for purposes of the said provisions,

the Court of the special Judge shall be deemed

to be a Court of Session and the person

conducting a prosecution before a special Judge

shall be deemed to be a public prosecutor."

13. It is further submitted by the learned counsel for

the State that the power of a Special Judge to grant

pardon under Section 5(2) of the Act is an

unfettered power and the deeming clause has been

employed only for the purpose of sub-sections (1) to

(5) of section 308 of the code. Sub-sections 1 to 5

of Section 308 run as follows:

"308. Trial of person not complying with

conditions of pardon. (1) Where, in regard to a

person who has accepted a tender of pardon made

under section 306 or section 307, the Public

Prosecutor certifies that in his opinion such

8

person 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 appears to have been guilty in connection

with the same matter, and also for the offence

of giving false evidence:

Provided that such person shall not be

tried jointly with any of the other accused:

Provided further that such person shall

not be tried for the offence of giving false

evidence except with the sanction of the High

Court, and nothing contained in section 195 or

section 340 shall apply to that offence.

(2) Any statement made by such person

accepting the tender of pardon and recorded by

a Magistrate under section 164 or by a Court

under sub-section (4) of section 306 may be

given in evidence against him at such trial.

(3) At such trial, the accused shall be

entitled to plead that he has complied with the

condition upon which such tender was made, in

which case it shall be for the prosecution to

prove that the condition has no been complied

with.

(4) At such trial, the Court shall-

(a) if it is a Court of Session,

before the charge is read out an

explained to the accused;

(b)

if it is the Court of a

Magistrate, before the evidence

of the witnesses for the

prosecution is taken,

9

ask the accused whether he pleads that he has

complied with the conditions on which the

tender of pardon was made.

(5) If the accused does so plead, the

Court shall record the plea and proceed with

the trial and it shall, before passing judgment

in the case, find whether or not the accused

has complied with the conditions of the pardon,

and, if it finds that he has so complied, it

shall, notwithstanding anything contained in

this Code, pass judgment of acquittal."

14. Mr. Sunil Kumar, learned counsel for the appellant

in support of his submissions relied on several

decisions which are considered by this Court now.

15. He relied on a decision of this Court in the case of

Lt. Commander Pascal Fernandes vs. State of

Maharashtra and Ors.- AIR 1968 SC 594.

16. Learned counsel for the appellant also relied on the

decision of this Court in A.R. Antulay vs. Ramdas

Sriniwas Nayak and Anr. - (1984) 2 SCC 500 in order

to contend that the procedure for granting pardon

which has been indicated in Section 5(2) read with

1

Section 307 of the Code must be followed namely that

the Special Judge being a Court of Sessions can only

grant pardon after the commencement of the trial.

But in the instant case pardon has been granted at

the stage of investigation. Therefore, pardon has

not been granted, according to the learned counsel

for the appellant, after following the proper

procedure.

17. Learned counsel relying on para 22 in Antulay's

case (supra) urged that when the procedure has been

provided then everything has to be done following

the said procedure and other modes of performance

are necessarily forbidden.

18. Learned counsel also referred to paragraph 27 at

page 524 of the report in Antulay (supra) to point

out that the Special Judge is a Court of original

jurisdiction and the trial of offences before him

shall follow the procedure in the Code for trial of

warrant cases by the Magistrate. Learned counsel

1

also submitted that pardon is to be granted by the

Special Judge, under provision of Section 307 of the

Code which is corresponding to Section 308 of the

old Code.

19. Learned counsel also relied on a decision of this

Court in State of U.P. vs. Singhara Singh - AIR 1964

SC 358 (para 8 at page 361 of the report) in order

to contend that the principles in Taylor vs. Taylor

(1876) 1 Ch. D. 426 must be followed in the instant

case. The said principle stipulates that where a

statute required the doing of a certain thing in a

certain way, the thing must be done in that way or

not at all.

20. Learned counsel also referred to the decision in the

case of Queen Empress vs. Batera & Ors. reported in

Criminal Judgments No.3 (Case No. 2838 of 1897)

where the Court held that provision of Section 337

of the old Code must be strictly construed.

1 21. We are unable to appreciate the aforesaid

contentions raised by the learned counsel. It goes

without saying that under Section 5(2) of the P.C.

Act the power of the Special Judge to grant pardon

is an unfettered power subject to stipulation made

in the Section itself. Such power can be exercised

at any stage and there is no stipulation that power

can be exercised by the Special Judge only at the

stage of trial as urged by the appellant's counsel.

The deeming clause which has been introduced in

Section 5(2) is for a very limited purpose mentioned

in Section 5(2) of the P.C. Act. Sub-Sections 1 to 5

of Section 308 have already been set out above and

it is clear therefrom that the said provisions have

been enacted for a different purpose namely for

holding trial of a person for not complying with the

conditions of pardon.

22. It is well known that a deeming provision is a legal

fiction and an admission of the non-existence of the

1

fact deemed. (See M/s. J.K. Cotton Spinning and

Weaving Mills Ltd. and another vs. Union of India

and others - AIR 1988 SC 191 at 202). Therefore,

while interpreting a provision creating a legal

fiction, the Court has to ascertain the purpose for

which the fiction is created.

23. The law on this aspect has been very neatly

summed-up by Lord Justice James in Ex Parte Walton,

in re Levy (1881) 17 Ch. D. 746. At page 756 the

learned Judge formulated as follows:

"...When a statute enacts that something shall be

deemed to have been done, which in fact and

truth was not done, the Court is entitled and

bound to ascertain for what purposes and

between what persons the statutory fiction is

to be resorted to...."

24. The aforesaid formulation has been approved by

Constitution Bench of this Court in State of

Travancore Cochin and others vs. Shanmugha Vilas

Cashewnut Factory, Quilon reported in AIR 1953 SC

333. At page 343 of the report the aforesaid

principles have been referred to by this Court along

1

with the various other decisions and which are set

out:

""When a statute enacts that something shall be

deemed to have been done, which in fact and

truth was not done, the Court is entitled and

bound to ascertain for what purposes and

between what persons the statutory fiction is

to be resorted to....

The above observations were quoted with

approval by Lord Cairns and Lord Blackburn in

Arthur Hill v. East and West India Dock Co.,

(1884) 9 A.C. 448. Lord Blackburn went on to

add at page 458:

"I think the words here 'shall be deemed to

have surrendered' ........ mean, shall be

surrendered so far as is necessary to

effectuate the purposes of the Act and no

further;.........."

(emphasis added)

25. Following the aforesaid well-settled principle, as

we must, we hold that the deeming provision

introduced in Section 5(2) of the P.C. Act is not

for fettering the power of the Special Judge to

grant pardon in terms of Section 306 of the Code.

The purpose of introducing the deeming provision in

Section 5(2) of the P.C. Act is manifest from the

text of Section 5(2), namely, the same is introduced

only for the purposes of sub-sections 1 to 5 of

1

Section 308 of the Code and it is only for the said

purpose that the sanction is deemed to have been

tendered under Section 307 of the Code.

26. If this Court accepts the contention of learned

counsel for the appellant that the Special Judge

under the P.C. Act has no power to grant the pardon

under Section 306 of the Code in view of the deeming

clause under Section 5(2) of the P.C. Act, that will

amount to reading Section 5(2) of P.C. Act in a

manner which is revolting to reason and by doing

violence to the plain words of the statutes.

27. The contention of the learned counsel for the

appellant cannot be accepted for other reasons also

which are discussed hereinbelow.

28. The decision in Pascal (supra) was rendered on an

interpretation of Section 8(2) of Criminal Law

1

Amendment Act, 1952. Section 8(2) of Criminal Law

Amendment Act, 1952 is set out below:

"(2) A Special Judge may, with a view to

obtaining the evidence of any person supposed

to have been directly or indirectly concerned

in, or privy to, an offence, tender a pardon to

such person on condition of his making a full

and true disclosure of the whole circumstances

within his knowledge relating to the offence

and to every other person concerned whether as

principal or abettor, in the commission

thereof; and any parson so tendered shall, for

the purposes of Secs. 339 and 339-A of the Code

of Criminal Procedure, 1898, (5 of 1898) be

deemed to have been tendered under Sec. 338 of

that Code."

29. Section 8(2) of Criminal Law Amendment Act, 1952

is virtually in parimateria with Section 5(2) of the

P.C. Act

30. The said decision in Pascal (supra) was rendered

when the old Criminal Procedure Code of 1898 was in

force. After the enactment of the new Code of 1973,

Sections 337 to 339 of the old Code were substituted

by the Criminal Law Amendment Act and Sections 306

to 308 of the present Code conferred powers to grant

pardon on the Magistrate and also on the Court to

1

which commitment is made. The decision in Pascal

(supra) was rendered in the context of a

substantially different statutory provision. Section

337 of the old Code is different from Section 306 of

the present Code. Specially Section 306(2)(a) which

has been quoted above was not there in Section 337

of 1898 Code. Section 306(2)(a) clearly makes

Section 306 applicable to the Court of Special Judge

under the P.C. Act. Such a conclusion is inescapable

on a conjoint reading of Section 306(2)(a) with

Section 26 of the P.C. Act, which is set out below:

26. Special Judges appointed under Act 46 of

1952 to be special Judges appointed under this

Act.- Every special Judge appointed under the

Criminal Law Amendment Act, 1952, for any area

or areas and is holding office on the

commencement of this Act shall be deemed to be

a special Judge appointed under section 3 of

this Act for that area or areas and,

accordingly, on and from such commencement,

every such Judge shall continue to deal with

all the proceedings pending before him on such

commencement in accordance with the provisions

of this Act."

31. Apart from that, the questions which fell for

consideration in Pascal (supra) are: (a) the

difference between Sections 337 and 338 of the old

1

Code and Section 8(2) of the Criminal Law Amendment

Act (b) that the power of Special Judge in tendering

pardon under Section 8(2) of the Criminal Law

Amendment Act is limited to an application by the

prosecution and the Special Judge cannot act suo

motu (c) the further question was that the powers of

the Special Judge under Section 8(2) are

circumscribed by considerations under Section 540 of

the old Code and (d) the further contention was that

Special Judge had not exercised his discretion

properly in the case.

32. None of the above considerations are relevant in

the present case. Therefore, the said decision does

not render any assistance to the appellant in

connection with the points which have been urged on

his behalf.

33. The learned counsel for the State relied on a three

Judge Bench decision of this Court in the case of

Harshad S. Mehta and others vs. State of Maharashtra 1

reported in (2001) 8 SCC 257. In the case of Harshad

Mehta (supra) this Court was considering the Special

Court (Trial of Offences Relating to Transactions in

Securities) Act and it is admitted that the Court

under the aforesaid Act is like the Special Court

under P.C. Act. Both are Courts of Original Criminal

Jurisdiction. In paragraph 21 of the judgment in

Harshad Mehta (supra) this Court held as follows:

"21. We have no difficulty in accepting the

contention that the Special Court, per se, is

not a Magistrate falling in any of the

categories of Magistrates as enumerated in

Section 306(1) and also that it is not a court

to which the commitment of a case is made. But,

it does not necessarily follow therefrom that

the power to tender pardon under Sections 306

and 307 has not been conferred on the Special

Court."

34. In coming to the conclusion that a Special Court is

a court of original criminal jurisdiction, this

Court in Harshad Mehta (supra) relied on the law

laid down by the Constitution Bench of this Court in

Antulay's (supra) in which the Court was considering

the provisions of the P.C. Act.

2 35. Relying on the ratio in Antulay (supra), where

Special Judge has been considered a court of

original criminal jurisdiction this Court held in

Harshad Mehta (supra) that in order to make the said

Court functionally oriented some powers are

conferred by the statute setting it up and except

those powers which are specifically denied, it has

to function as a court of original criminal

jurisdiction not being hidebound by the

terminological status description of Magistrates or

a Court of Session. Under the Code, it will enjoy

all the powers which a court of original criminal

jurisdiction enjoys save and except the ones which

are specifically denied. (see para 22, page 269 of

the report)

36. The Court in Harshad Mehta (supra) also considered

the decision of this Court in Pascal (supra). After

considering the decision in Pascal (supra), this

Court in Harshad Mehta (supra) came to the

2

conclusion that the Special Court enjoys all powers

which a court of original criminal jurisdiction

enjoys whether of a Magistrate or as a Court of

Session, save and except the one specifically

denied. (See para 50 page 281).

37. The conclusion reached by three Judge Bench in

Harshad Mehta (supra) after considering the decision

in Pascal (supra) is as follows:

"62. Our conclusion, therefore, is that the

Special Court established under the Act is a

court of exclusive jurisdiction. Sections 6 and

7 confer on that court wide powers. It is a

court of original criminal jurisdiction and has

all the powers of such a court under the Code

including those of Sections 306 to 308."

38. If we may note, the Court reached the aforesaid

conclusion in Harshad Mehta (supra) even though

under the aforesaid Act there is no provision like

Section 5(2) in the P.C. Act.

39. If we follow the ratio of Harshad Mehta (supra) to

the interpretation of Section 5(2) of the P.C. Act,

2

it is clear that the power to grant pardon under

Section 306 of the Code has not been specifically

denied. If it is not specifically denied, then as a

court of original criminal jurisdiction the Special

Court under P.C. Act has the power to grant pardon

under Section 306 of the present Code. Any different

interpretation will be contrary to the plain words

of Section 306 of the Code and also the law laid

down by this Court in Harshad Mehta (supra) on the

principles decided in Antulay (supra).

40. Reference in this connection can also be made to the

decision of the Supreme Court in the case of State

of Tamil Nadu vs. V. Krishnaswami Naidu and another,

reported in (1979) 4 SCC 5. In that case the

question was whether the Special Judge has the power

of remand. This court, by referring to Section 3(32)

of the General Clauses Act, 1897 defining a

Magistrate, held that Magistrate will include a

Special Judge. Therefore, a Special Judge shall be a

Magistrate for the purposes of Section 167 of the

Code even though the word `Special Judge' is not

2

mentioned in Section 167 (see para 7, pg. 8 of the

report).

41. It is therefore clear that, on the ratio of V.

Krishnaswami (supra), the Special Judge has been

given a very important magisterial function, namely

the power of remand. Compared to that, the power to

grant pardon is an ancillary power. Therefore under

the scheme of the Code, read with Section 5(2) of

the PC Act, and in light of the consistent view of

this Court, a Special Judge will include a

magistrate. On the same parity of reasoning a

Special Judge, unless specifically denied, will have

the power to grant pardon. Here there is no question

of specific denial, rather Section 5(2) of the P.C.

Act clearly confers this power subject to the

deeming clause, the limited purpose of which has

been discussed above.

42. Thus, on a harmonious reading of Section 5(2) of

the P.C. Act with the provisions of Section 306,

2

specially Section 306(2)(a) of the Code and Section

26 of the P.C. Act, this Court is of the opinion

that the Special Judge under the P.C. Act, while

trying offences, has the dual power of the Session

Judge as well as that of a Magistrate. Such a

Special Judge conducts the proceedings under the

court both prior to the filing of charge sheet as

well as after the filing of charge sheet, for

holding the trial.

43. It has already been held by this Court that the

Special Judge is fully vested with the powers of

remand. The power of granting remand is very wide

power compared to the power of granting pardon.

Since this Court has already held that the Special

Court is clothed with the magisterial power of

remand, thus in the absence of a contrary provision,

this Court cannot hold that power to grant pardon at

the stage of investigation can be denied to the

Special Court.

2 44. In view of the discussion made above, this Court

is of the opinion that power of granting pardon,

prior to the filing of the charge sheet, is within

the domain of judicial discretion of the Special

Judge before whom such a prayer is made, as in the

instant case by the prosecution.

45. Any other conclusion would be detrimental to the

administration of justice, in as much as, the power

to grant pardon is contemplated in situations where

serious offence is alleged to have been committed by

several persons and with the aid of the evidence of

the person, who had been granted pardon, the

offence committed may be proved. The basis of

exercise of this power is not to judge the extent of

culpability of the persons to whom the pardon is

tendered. The main purpose is to prevent failure of

justice by allowing the offender to escape from a

lack of evidence.

2 46. Therefore, this Court does not find any merit in

the contention urged on behalf of the Appellant.

However, this Court makes it clear that in the

course of holding trial, the Special Judge will not

be in any way influenced by the observations in the

order granting pardon but will act independently of

the same. In this case, the Special Judge who

granted pardon is not holding the trial. Therefore,

at the time of holding trial, it is directed that

the Special Judge will independently apply his mind

to the facts of the case in arriving at his

conclusions.

47. With this direction the appeals, being without

merit, are dismissed.

.......................J.

(ASOK KUMAR GANGULY)

.......................J.

New Delhi (GYAN SUDHA MISRA)

November 22, 2011

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