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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1310 OF 2010

P.C. Mishra …. Appellant

Versus

State (C.B.I.) & Anr. …. Respondents

J U D G M E N T

K.S. Radhakrishnan, J.

1.We are, in this appeal, concerned with the question

whether the pardon granted by the Metropolitan

Magistrate, Tis Hazari, Delhi, under Section 306 Cr.P.C. to

the second Respondent, against whom R.C. No.15(A) 96

DLI dated 29.2.1996 under Section 7 of the Prevention of

Corruption Act, 1988 was registered by the Central Bureau

of Investigation, is legally sustainable.

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2.The Central Bureau of Investigation (CBI) registered

R.C. No.15(A) 96 DLI dated 29.2.1996 under Section 7 of

the Prevention of Corruption Act, 1988 (for short “PC Act”)

on receipt of a written complaint on 29.2.1996 from

Gulshan Sikri, proprietor of M/s Filtrex India, Nangal Raya,

New Delhi, against P.C. Mishra, the then Assistant

Commissioner of Sales Tax (Appeals), Appellant herein, for

demanding Rs.4,000/- as bribe for settling the appeal filed

against the order of Sales Tax Officer.

3.CBI, on 1.3.1996, laid a trap and the accused, PC

Mishra, and his Reader Ravi Bhatt, second Respondent

herein, were caught red-handed while demanding and

accepting the bribe from the complainant. Both the

accused persons were arrested by the CBI on 1.3.1996

and, during the course of investigation, an application was

filed by the co-accused Ravi Bhatt before the Special

Judge, CBI, for recording his confessional statement under

Section 164 Cr.P.C., which was marked by Special Judge to

the Chief Metropolitan Magistrate, who assigned the same

to the Metropolitan Magistrate and the statement of

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second Respondent under Section 164 Cr.P.C. was

recorded on 7.8.1996. During the course of investigation,

the witnesses had been examined and records scrutinized

and it transpired that the co-accused Ravi Bhatt had

accepted the bribe money for and on behalf of the

Appellant. The CBI, on investigation, noticed that the

second Respondent was not a leading accused in the case

and it was considered necessary to take him as an

approver to prove the various missing links in the chain of

circumstantial evidence, which was otherwise not

available to the investigating agency. Consequently, the

CBI on 24.10.1996 filed an application under Section 306

Cr.P.C. before the Special Judge, Tis Hazari, Delhi for grant

of pardon to the second Respondent, Ravi Bhatt. The

Special Judge marked that application to the learned Chief

Metropolitan Magistrate for the said purpose, who, in turn,

marked the same to the Metropolitan Magistrate.

4.The Metropolitan Magistrate examined the

application of the CBI and passed an order dated

2.11.1996, in exercise of powers conferred under Section

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306 Cr.P.C., holding that it was a fit case where pardon

should be granted to the second accused to enable the

prosecution to unveil all circumstances of the case and to

unearth the truth, stating the following reasons :

“Accused Sh. Ravi Bhatt is a privy to the

offence. He is not the principal/leading accused

in this case. It is not mentioned in the written

complaint of the complainant that accused Sh.

Ravi Bhatt demanded Rs.4000/- from him. The

role played by him, however, is minimal.

Considering that the matter relates to

corruption in the Government Department and

no direct independent evidence is available, I

think it appropriate to obtain evidence of the

accused, Sh. Ravi Bhatt in order to prove the

various missing links in the chain of the

circumstantial evidence which are not otherwise

available to the investigating agency. The

offence mentioned in the FIR is triable

exclusively by the Court of a Special Judge

appointed under the Criminal Law Amendment

Act, 1952 (46 of 1952).”

5.The above mentioned order was not challenged and

has attained finality. Later, charges were framed under

Sections 7 and 13(1)(d) read with Section 13(2) of the PC

Act against the Appellant vide order dated 8.2.2000 after

getting sanction. Trial proceeded in the Court of Special

Judge and evidence was concluded as against the

Appellant. Second Respondent, Ravi Bhatt, was examined

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as PW9 by the prosecution and was also cross-examined

by the Appellant.

6.The Appellant moved an application under the proviso

to Section 234 Cr.P.C. for the first time, before the Special

Judge on 24.7.2008, questioning the pardon granted to

second Respondent by the learned Metropolitan Magistrate

on 2.11.1996 in exercise of powers conferred under

Section 306 Cr.P.C. It was contended that the pardon

could have been granted only by the Special Judge under

Section 5(2) of the PC Act and not by the Metropolitan

Magistrate, being not a designated Court under the PC Act.

It was also contended that the Magistrate did not have any

power to grant pardon. The Special Judge rejected the

application vide order dated 31.10.2008 holding that the

Metropolitan Magistrate had the power to grant pardon

during investigation under Section 306 Cr.P.C. and even if

the Magistrate was not empowered by law to tender a

pardon and the order was passed in good faith, then such

an order is protected under Section 460 Cr.P.C. Aggrieved

by the same, the Appellant filed Criminal Revision being

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Crl. M.C. No.3514 of 2008 before the High Court of Delhi,

which was dismissed by the High Court vide its order dated

6.11.2008, against which this appeal has been preferred.

7.Shri P.C. Mishra, the Appellant, appeared in person

and submitted that the learned Metropolitan Magistrate

has committed a grave error in granting pardon to the

second Respondent, that too, without hearing him. Shri

Mishra submitted that the order passed by the learned

Metropolitan Magistrate on 2.11.1996 is without

jurisdiction, since no power is conferred on him to grant

pardon to second Respondent as the matter is already

seized before the Special Judge appointed under Section 3

of the PC Act. It was pointed out that Section 5(2) of the

PC Act deals with all matters pertaining to offences under

the Prevention of Corruption Act, starting from registration

of FIR to passing of final judgment. Consequently, it was

only Special Judge, who could have granted pardon to the

second Respondent and not the Metropolitan Magistrate.

Shri Mishra also placed considerable reliance on the

Constitution Bench judgment of this Court in A.R. Antulay

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v. Ramdas Sriniwas Nayak and another (1984) 2 SCC

500 and various other decisions in support of his

contention. Further, it was pointed out that the Special

Act lays down some procedure under which the Special

Judge has to function and no other procedure, apart from

what has been prescribed by the PC Act, could be followed.

In support of his contention reliance was placed on the

judgment of this Court in Dilawar Singh v. Parvinder

Singh alias Iqbal Singh and another (2005) 12 SCC

709 to emphasise the power of the Special Judge under

Section 5(2) of the PC Act. Reliance was also placed on

the judgment of this Court in Harshad S. Mehta and

others v. State of Maharashtra (2001) 8 SCC 257 and

Bangaru Laxman v. State (through CBI) and another

(2012) 1 SCC 500. It was also pointed out that since the

issue with regard to the jurisdiction could be raised at any

point of time, the contention of the Respondents that the

order of 1996 was challenged only in the year 2008 cannot

be sustained. Further, it was also pointed out that the

learned Metropolitan Magistrate had granted pardon under

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Section 306 Cr.P.C. without issuing notice to the Appellant

which has caused serious prejudice to him.

8.Shri Rajiv Nanda, learned counsel appearing for the

CBI, submitted that the application for pardon could be

moved by the prosecution at the stage of investigation, till

its culmination and in the instant case the application for

pardon was moved by the prosecution at the stage of

investigation and that too after recording the statement of

Ravi Bhatt under Section 164 Cr.P.C. Learned

Metropolitan Magistrate, it was pointed out, has exercised

his jurisdiction to grant pardon under Section 306 Cr.P.C.

at the investigation stage. The Special Judge, in the

instant case, had directed the Chief Metropolitan

Magistrate or the Metropolitan Magistrate to deal with the

application for pardon, since the case was at the

investigation stage. In any view, it was submitted, even if

there was some irregularity in the order passed by the

Metropolitan Magistrate, that irregularity was a curable

irregularity in view of Section 460(g) Cr.P.C.

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9.Ms. V. Mohana, learned Amicus Curiae addressed

elaborate arguments on the scope of Sections 306 and 460

Cr.P.C. as well as the powers of the Special Judge under

Section 5(2) of the PC Act. Learned Amicus Curiae

pointed out that power of the Magistrate during

investigation to grant pardon is not taken away or

deprived by the provisions of the PC Act. In any view, the

order passed by the Metropolitan Magistrate is protected

under Section 460(g) Cr.P.C. since the Magistrate had

acted bona fide and in good faith. Learned Amicus Curiae

also submitted, assuming that the Special Judge under the

PC Act also has power to grant pardon during

investigation, that will not take away the inherent powers

on the Magistrate during investigation to grant pardon

while exercising powers under Section 306 Cr.P.C. Learned

Amicus Curiae further submitted that the order granting

pardon was passed as early as on 2.11.1996, which was

revisable and, since no revision had been filed, the order

had attained finality and hence the same could not have

been challenged by the Appellant at the fag end of the

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trial, in which, it was pointed out, he had been convicted

by the Special Judge vide his judgment dated 24.5.2010.

10.We are, in this appeal, concerned with the

correctness or otherwise of the order passed by the

Magistrate in granting pardon exercising powers under

Section 306 Cr.P.C. during the course of investigation of

the case and before the submission of the charge-sheet

before the Special Judge. The CBI, as already stated, had

filed an application for grant of pardon before the Special

Judge at a stage when investigation was going on and the

Special Judge, in its wisdom, thought it appropriate that

the application be dealt with by the Chief Metropolitan

Magistrate, since investigation was not over and charge-

sheet was not submitted before him. The Chief

Metropolitan Magistrate, however, assigned the matter to

the Metropolitan Magistrate. Situation would have been

different if the investigation was over, charge-sheet had

been submitted and the charges were framed against the

accused. In our view, at the stage of investigation, the

power conferred on the Magistrate under Section 306

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Cr.P.C. (Section 337 of Cr.P.C. 1898 Old Code) has not

been taken away, even if the offence can ultimately be

tried by a Special Judge. Section 306 Cr.P.C. is applicable

in a case where the order of committal has not been

passed, while Section 307 Cr.P.C. is applicable after the

committal of the case before the judgment is pronounced.

This Court in A. Devendran v. State of Tamil Nadu

(1997) 11 SCC 720 opined that after committal of the case,

the power to grant pardon vests in the Court to which the

case has been committed and the pardon granted by the

Chief Judicial Magistrate is not a curable irregularity. For

easy reference, we refer to Section 306 Cr.P.C., which

reads as follows :

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, 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

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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;

(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

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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.”

11.Power to grant pardon enjoined under Section 306

Cr.P.C. is a substantial power and the reasons for

tendering pardon must be recorded. It is for the

prosecution to ask that a particular accused, out of

several, may be granted pardon, if it thinks that it is

necessary in the interest of successful prosecution of other

offenders or else the conviction of those offenders would

not be easy. This Court in State of U.P. v. Kailash Nath

Agarwal and others (1973) 1 SCC 751 recognised the

power of the District Magistrate to grant pardon at the

investigation stage. This Court in Kanta Prashad v.

Delhi Administration AIR 1958 SC 350 had the occasion

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to examine the scope of Section 337 and 338 of the old

Code (Cr.P.C. 1898) vis-à-vis the powers of a Special Court

constituted under the Criminal Law (Amendment) Act,

1952. This Court held that, reading the proviso to Section

337 and provisions of Section 338 together, the District

Magistrate is empowered to tender a pardon even after a

commitment, if the Court so directs. It was also held that

under Section 8(2) of the Criminal Law (Amendment) Act,

1952, the Special Judge has also been granted power to

tender pardon. The conferment of this power on the

Special Judge in no way deprives the District Magistrate of

his power to grant a pardon under Section 337 of the

Code. It was held if at the time when the District

Magistrate tenders the pardon, the case was not before

the Special Judge, then there is no illegality committed by

the District Magistrate.

12.The scope of above-mentioned provisions again came

up for consideration before this Court in Kailash Nath

Agarwal (supra), wherein this Court after referring to its

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earlier judgment in Kanta Prashad (supra) held as

follows:-

“It will be noted from this decision that

emphasis is laid on the fact that the proviso to

Section 337 contemplates concurrent

jurisdiction in the District Magistrate and in the

Magistrate making an inquiry or holding the trial

to tender pardon. It is also emphasised that the

conferment of the power to grant pardon on the

Special Judge does not deprive the District

Magistrate of his power to grant pardon under

Section 337.”

13.In Bangaru Laxman (supra), this Court has stated

that the power of Special Judge to grant pardon is an

unfettered power and held that, while trying the offences,

the Special Judge has dual power of a Special Judge as

well as that of a Magistrate. This Court, while interpreting

Section 5, then went on to say as follows :-

40. Thus, on a harmonious reading of Section

5(2) of the PC Act with the provisions of Section

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

Section 26 of the PC Act, this Court is of the

opinion that the Special Judge under the PC Act,

while trying offences, has the dual power of the

Sessions 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.

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41. ………………. 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.

42. In view of the discussion made above, this

Court is of the opinion that the 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.”

14.Bangaru Laxman (supra), therefore, emphasizes

the concurrent jurisdiction of the Special Judge as well as

the Chief Judicial Magistrate or Metropolitan Magistrate to

grant pardon during investigation, but does not say that

the Metropolitan Magistrate has no power under Section

306 Cr.P.C. to grant pardon during the investigation i.e.

before filing of charge-sheet before the Special Judge.

During investigation, in our view, both the Special Judge

as well as the Magistrate acting under Section 306 Cr.P.C.

have concurrent jurisdiction to entertain application of

pardon, which facilitates proper investigation of the crime.

But, as already indicated, after the committal of the case,

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the pardon granted by the Magistrate is not a curable

irregularity.

15.We may, in this regard, refer to Section 460 Cr.P.C.

which refers to nine kinds of crurable irregularities,

provided they are caused erroneously and in good faith.

Irregularity caused while granting pardon is dealt with in

Section 460(g) Cr.P.C. The relevant part of that Section

reads as follows :-

“460. Irregularities which do not vitiate

proceedings.

If any Magistrate not empowered by law to do

any of the following things, namely:-

(g) to tender a pardon under section 306;

erroneously in good faith does that thing, his

proceedings shall not be set aside merely on

the ground of his not being so empowered.”

Section 461 Cr.P.C. speaks of irregularities which

vitiate proceedings.

16.We have already held, both the Magistrate as well as

the Special Judge has concurrent jurisdiction in granting

pardon under Section 306 Cr.P.C. while the investigation is

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going on. But, in a case, where the Magistrate has

exercised his jurisdiction under Section 306 Cr.P.C. even

after the appointment of a Special Judge under the PC Act

and has passed an order granting pardon, the same is

only a curable irregularity, which will not vitiate the

proceedings, provided the order is passed in good faith.

In fact, in the instant case, the Special Judge himself has

referred the application to Chief Metropolitan

Magistrate/Metropolitan Magistrate to deal with the same

since the case was under investigation. In such

circumstances, we find no error in Special Judge directing

the Chief Metropolitan Magistrate or the Metropolitan

Magistrate to pass appropriate orders on the application

of CBI in granting pardon to second Respondent so as to

facilitate the investigation.

17.Appeal lacks merit and the same is dismissed.

……..……………………J.

(K.S. Radhakrishnan)

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……..……………………J.

(Vikramajit Sen)

New Delhi,

March 27, 2014.