V. Arulkumar Petitioner v. The State, Rep. By Inspector Of Police, Spe/Cbi/Acb Chennai

PRAYER: Criminal Revision cases filed under Section 397 and 401 of the Code of Criminal Procedure, to call for the records pertaining to CC. No. 9 of 2006 on the file of XI Additional City Civil and Sessions Judge for CBI Cases, Chennai and set aside the order passed in Crl.M.P No. 2301 of 2012 dated 30.8.2012

S. Palanivelu, J.:— The Petitioner was working as the Regional Chief, Housing Corporation (HUDCO), Chennai. The case against the petitioner before the lower Court pertains to some alleged irregularities in the sanction of plot loans to certain persons. The allegation is that in respect of HUDCO Niwaz scheme (a scheme promoted by HUTCO for financing plot loans) pertaining to a layout at Shakti Nagar, Sevvapettai Village and Kothari New Town Phase-1, Pennagathur Village, a conspiracy was hatched during 2001 to 2003 by the petitioner along with 14 others, committed irregularities by submission of forged documents, lack of pre-sanction verification etc., and that by misuse of the official postion of the petitioner as a public servant, directed approvers Subramaniam and Muralidharan to release loans based on the value mentioned in the sale agreement which are higher than the sale price/market and guideline value, prepared a note on 18.3.2002 antedating it as 5.3.2002 and committed several other illegal and irregular acts and thereby the petitioner/A1 and other 14 accused (A2 to A15) made HUDCO to suffer a wrongful loss of Rs. 21,07,546.50 and thereby charged u/s 120-B, r/w 420, 467, 468, 471 I.P.C and S.13(2) r/w 13(1)(d) of Prevention of Corruption Act, 1988.

1(b). Amongst the witnesses listed in the final report of the respondent 5 persons namely Muralidharan, Subramanian, Ravi, P.S Dhanasekaran and Neelanarayana Sethupathy were shown as approvers. As per the Prosecution the said 5 persons have given confessions u/s 164 Cr.P.C before the learned XVI Metropolitan Magistrate and XX Magistrate and subsequently, the XI Metropolitan Magistrate, Chennai-15 has granted pardon to approvers Muralidharan and Subramanian. The III Metropolitan Magistrate, George Town, Chennai has granted pardon to approvers P.S Dhanasekaran, Ravi and Neelanarayana Sethupathy.

2(a). The petitioner/A1 has filed a petition u/s 306 Cr.P.C and Section 136 Indian Evidence Act, before the Trial Judge in Crl.M.P No. 2301 of 2013 wherein it is averred that the Section 164 Cr.P.C Proceedings and the Pardon Proceedings of the Magistrate are vitiated by the following irregularities:

(i) The procedure as per S.164(6) has not been done as the learned Magistrate has forwarded it to a Magistrate who has no jurisdiction to inquire or try a case under the P.C Act.

(ii) The Court of the Special Judge under the P.C Act is to be reckoned as a Magistrate though it is basically a Sessions Court. Reckoning it to be so, the FIR is forwarded only to the Court of Special Judge and the entire investigation is carried out under the jurisdiction of the learned Special Judge. Hence, the recording of the confession u/s. 164 Cr.P.C, a learned Magistrate has to forward the same to the Court of learned Special Judge only. Violation of this provision is an incurable illegality which vitiates the entire proceedings.

(iii) The pardon tendered by the Learned Magistrates also suffers from an irregularity in that they are not competent to accord pardon in a case instituted under the P.C Act.

(iv) S.306[4](b) reads that “shall unless he is already on bail, be detained in custody until the termination of trial”. In this case the approvers bail details are not available.

2(b). It is also alleged in the petition that the above aspects go to the very root of the jurisdiction of the respective learned Magistrates and not as regards their powers and hence before examination of the respective approvers the prosecution may be asked to adduce proper evidence as to the admissibility of the approvers evidence as per Section 136 of Indian Evidence Act.

3. In the counter filed by the prosecution it is stated that the date of arrest and release on bail are available on the records of the learned Court and Section 207 Cr.P.C, as averred by the petitioner, does not insists any Magistrate to furnish such details. Section 207 insists the Magistrate to furnish only the documents which were forwarded along with the police's final report u/s 173 Cr.P.C As per Section 306(1) Cr.P.C, the Chief Judicial Magistrate or Metropolitan Magistrate at any stage of investigation or inquiry into or trial of the offence may tender pardon to such person. The section does not specifically state that the Court which inquires into/tries the case should tender pardon. Sub-Class 2 of the same section specifically states, the section applies to any offence triable by the Court of Sessions or by the Court of Special Judge. The contention of the petitioner/accused in respect of non-admissibility of approvers' evidence as per Section 136 of Indian Evidence Act is not tenable and it is intended to mislead the Court. The recording of confessional statements of approvers and tender of pardons were done by the learned Magistrates after bringing on record their reasons for doing so. The petition filed without any reasonable grounds, is only to delay the proceedings, hence, this petition may be dismissed.

4. After hearing both parties, the learned XI Additional Special Judge for CBI Cases, Chennai has dismissed the application under observation that the learned Metropolitan Magistrate had recorded the confession statements of five approvers in a lawful manner and there is no impediment for the learned Magistrate to grant tender of pardon to those persons. Hence, the petitioner is before this Court.

5. Point for Consideration:

Whether the Special Judge is competent to Tender of Pardon under Section 306 Cr.P.C and Section 5(2) of P.C Act.

Point:

6. The Petitioner is A1 in this case. Along with 14 accused he has been charge sheeted and after the case was taken on file by the Special Judge, charges have been framed under Section 120-B r/w 420, 467, 468, 471 IPC and Section 13(2) r/w 13(1)(d) of P.C Act. In this case the confession statements of approvers were recorded by the Metropolitan Magistrate, Chennai and subsequently Tender of Pardon was also granted by the Metropolitan Magistrate. The competency of the Metropolitan Magistrate to Tender of Pardon is challenged by this petition. Such recording of confession statement and the Tender of Pardon by the Metropolitan Magistrate are justified by the respondent.

7. The Learned counsel Mr. R. Ravindran appearing for the petitioner would contend that the Court has failed to note the subtle distinction between “Power” of the Metropolitan Magistrate or Judicial Magistrate to grant a pardon from “jurisdiction” possessed by the said Magistrates, that the Honourable Supreme Court has held that the Special Judge is to be reckoned as a Magistrate and has power to grant pardon at the stage of investigation, that the learned Magistrates should have concluded that the Metropolitan Magistrate has no power to record confession nor to tender pardon and that there are valid grounds in the contentions raised by the petitioner.

8. Repelling the contention, Mr. N. Chandrasekaran, the learned Special Public Prosecutor for CBI Cases would argue that inasmuch as the provision under Sections 306 Cr.P.C provides tender of pardon by Metropolitan Magistrate, it has accordingly been done as per the mandate of Section and there is no legal flaw in this proceeding and that there is no legal grounds available to the petitioner to pray for dislodging the findings and conclusions of the Trial Court.

9. It is the bottom-line contention of the learned Counsel for the petitioner that the Special Judge for CBI Cases is to be reckoned as a Magistrate and recording a confession does not call for any judicial order whereas the subsequent act of grant of pardon is a judicial act and that the tender of pardon to the approvers by the Metropolitan Magistrates have vitiated the entire proceedings. For better appreciation of the point in issue, it is profitable to extract Section 306 Cr.P.C and 5(2) of the Prevention of Corruption Act.:-

“Section 306 of Cr.P.C: 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 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.

(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 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.”

“Section 5(2) of the PC Act

“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.”

10. The Supreme Court is of the opinion that the Special Judge under the P.C Act while trying offences, has the dual power of the Sessions Judges as well as that of a Magistrate. Such a Special Judge conducts the proceedings under the Code both prior to the filing of charge sheet as well as after filing of charge sheet and in the absence of a contrary provision, the Court cannot hold that power to grant pardon at the stage of investigation can be denied to the Special Court. In the light of the consistent view of the Court, the Special Judge will include a Magistrate. The law governing the field has been laid down by the Honourable Supreme Court in (2012) 1 SCC 500 [Bangaru Laxman v. State] following is the gist of principle contained in the decision:

“39. It is therefore clear that, on the ratio of V. Krishnaswami's case [(1979) 4 SCC 5: 1979 SCC (Cri) 887], 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 PC Act clearly confers this power subject to the deeming clause, the limited purpose of which has been discussed above.

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.

41. 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 a very wide power as 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.”

11. The learned Special Judge has followed Kerala High Court decision reported in 2010 Crl.L.J 926 [Anantha Narayana Bhatt v. Central Bureau Of Investigation of Investigation] under observation that the principles laid down in Bangaru Laxman's case has no application to the facts of the present case. He did not also place reliance upon decsiion of Calcutta High Court in (2002) 1 CALLT 318 HC [Mrigendra Nath Ghosh v. D.K Chowdhuri, Deputy S.P, CBI]. The Calcutta High Court has held that the right to tender of pardon is not available to Magistrates, while the Kerala High Court has given a contrary view.

12. The learned counsel for the petitioner brought to the notice of this Court the conduct of the respondent in another case which is pending in the same Court in R. No. RC MA1 2012 A 0020 is indicated by producing a copy of Charge Sheet laid in that case. Wherein the respondent have taken steps to get the Tender of Pardon to the accused by the Principal Special Court for CBI Cases, Chennai on 28.08.2012 Citing this he adds that the respondent subsequently has selected another case to get Tender of Pardon in accordance with law and did not take initiatives to get the Tender of Pardon from a Metropolitan Magistrate.

13. It is the considered view of this Court that the decision in Bangaru Lakshman's case (supra) is applicable to the facts of the present case. As per Section 5(2) of P.C Act, the Special Judge has been conferred power to tender a pardon to the accused and there is no contrary provision appears in the Act. Following the principles laid down in Bangaru Laksman's case it is held that the Tender of Pardon by Metropolitan Magistrate to the Accused in this case is not sustainable and the respondent should have moved before the Special Judge for Tender of Pardon. The Tender of Pardon granted by a Metropolitan Magistrate is not lawful which vitiated all other subsequent proceedings. Hence, it is directed that the respondent should take steps for Tender of Pardon by Special Judge for CBI Cases viz., the same Court where the case is pending and to further proceed with the case. In such a view of this matter, the Revision Case is allowed. The point is answered accordingly.

14. In fine, the Criminal Revision Case is allowed. All further proceedings held subsequent to the Tender of Pardon by the Metropolitan Magistrate are struck off and the respondent shall initiate fresh action to get Tender of Pardon in accordance with law.