Harbans Lal, J.:— This petition under Section 482 Cr. P.C seeks quashing of the proceedings initiated against the petitioner on the basis of FIR no. 253/96 dated 14.11.1996 recorded by the Anti-Corruption Bureau, Jodhpur in which after investigation challan has been filed against the petitioner alongwith co-accused Ramesh Purohit.

2. Briefly stated, the relevant facts necessary for the disposal of this petition are that one Sugna Ram, the then Sarpanch Gram Panchayat Patel Nagar, Tehsil Bilara made a complaint on 9.11.1996 to the Addl. S.P ACD Cases, Jodhpur with the allegations that a Panchayat Bhawan has been got constructed under the famine relief scheme on a total cost of Rs. 3,20,000/- out of which the payment of Rs. 76,000/- was yet to be made and for the payment of which Shri ramesh Purohit, the then B.D.O demanded Rs. 32,000/- as bribe i.e 10% of the total amount of Rs. 3,20,000/-. After verifying the satisfying about the veracity the truth of the allegations, a trap was arranged and after the successful trap a case FIR No. 253/96 was registered against the petitioner for the offences under Section 7, 13(1)(d)(d) of the Prevention of Corruption Act, 1988 (hereinafter referred to as ‘the Act’) and 120-B IPC as well as against Ramesh Purohit, the then B.D.O During the course of investigation, the petitioner Rajendra Singh moved an application before the learned Chief Judicial Magistrate, Jodhpur for grant of pardon. The learned Magistrate after satisfying himself about the willingness of the petitioner, recorded his confessional statement under Section 164 Cr. P.C He tendered him pardon under Section 306 Cr. P.C land sent his statement to the learned Special Judge, A.C.D Cases, Jodhpur in a sealed cover. But after the completion of investigation, a challan has been filed against both the accused persons ignoring the grant of pardon to the petitioner. Hence, this petition under Section 482 Cr. P.C

3. I have heard the learned counsel for the petitioner, learned Public Prosecutor on behalf of the State and learned counsel for the co-accused Ramesh Purohit, after accepting his application for being heard.

4. The precise question for determination before me is as to whether the petitioner could be tendered Pardon by the learned Chief Judicial Magistrate under the provisions of Section 306 Cr. P.C in a case exclusively triable by the learned Special Judge, ACD Cases, Jodhpur and whether the pardon once tendered to an accused could be ignored and challan against him could be filed without first getting the order of grant of pardon set aside or cancelled.

5. In order to properly appreciate and decide the aforesaid question, it would be appropriate to extract here the provisions of Section 306 Cr. P.C and Section 5 of the Act.

5. Procedure and powers of special Judge.

(1) A special Judge may take cognizance of offences without the accused being committed to him for trial and in trying the accused persons, shall follows the procedure prescribed by the Code of Criminal Procedure prescribed by the Code of Criminal Procedure, 1973 (2 of 1974), for the trial of warrant cases by Magistrates.

(2) A special Judge may, with a view to obtaining the evidence of any person supposed to have been directly or indirect concerned in, or privy to, a offence, tender a pardon to such person 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.

(3) Save as provided in sub-section (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 the purposes of the said provisions, the Court of the special Judge shall be deemed to be a Court of Sessions and the person conducting a prosecution before special Judge shall be deemed to be a public prosecutor.

(4) In particular and without prejudice to the generality of the provisions contained in sub-section (3), the provisions of Sections 326 and 475 of the Code of Criminal Procedure, 1973 (2 of 1974) shall, so far as may be, apply to the proceedings before a special Judge and for the purposes of the said provisions, a special Judge shall be deemed to be a Magistrate.

(5) A special Judge may pass upon any person convicted by him any sentence authorised by law for the punishment of the offence of which such person is convicted.

(6) A special Judge, while trying an offence punishable under this Act, shall exercise all the powers and functions exercised by a District Judge under the Criminal Law Amendment Ordinance, 1944 (Ordinance 38 of 1949).

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 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

(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.

6. A bare reading of these provisions makes it abundantly clear that in the case registered for the offences under the Act is exclusively triable by the Special Judge only. As per the provisions of the Section 5(1), Special Judge may take cognizance of such offences without the accused being committed for trial and Section 5(2) provides that the 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 purpose of sub-sections (1) to (5) of Section 308 Cr. P.C be deemed to have been tendered under Section 307 of that Code. Sub-section (3) makes it abundantly clear that save as provided in sub-section (1) or sub-section (2) of Section 5, the provision of Cr. P.C, shall, so far as they are not inconsistent with this Act, apply to the proceedings before a Special Judge, and for the purpose of the said provisions, the Court of Special Judge shall be deemed to be a Court of Sessions. Thus, it is more than clear that the provisions of sub-section (2) of Section 5 in so far as they are inconsistent with the similar provisions of the Cr. P.C shall prevail. Over the provisions of the Cr. P.C

7. This apart, it is well settled law that where special provision is made under a special enactment for certain offence then that procedure is to be followed and not the general procedure. Thus, the general procedure of Cr. P.C pertaining to tender of pardon will have to give way to the similar provisions provided in the Act.

8. Thus, in view of the foregoing clear provisions, the only and irresistible conclusion is that the Special Judge appointed under the Act is empowered to grant pardon to an accused person in case exclusively triable by him and the CJM or any other Magistrate is not empowered/authorised or legally entitled to grant pardon in such a case to any accused in that case.

9. It has been held in the case of A. Devendran v. State Of T.N. (1) that after the commitment of the case to the Sessions, the Chief Judicial Magistrate was not authorised to tender pardon to any accused and the order passed by him granting pardon to an accused was without jurisdiction and illegal. It has further been held that this is not an irregularity curable within the ambit of clause (g) of Section 460 Cr. P.C In this connection, their Lordships of the Hon'ble Apex Court have observed that ‘to tender pardon by the Chief Judicial Magistrate cannot be held to be mere case of irregularity nor it can be said that there has been no failure of justice. It is a case of total lack of jurisdiction and consequently the follow up action on account of such an order by a Magistrate being without jurisdiction cannot be taken into consideration at all’.

10. In this view of the matter, therefore, the order of the Chief Judicial Magistrate, Jodhpur dated 21.8.1997 granting pardon to the petitioner being apparently without jurisdiction is illegal and void ab-initio which cannot and does not confer any legal right on the petitioner to take benefit of such an order. It is equally well-settled proposition of law that such an illegal order is non-est and can be ignored. It is not required to be got revoked or cancelled.

11. Learned counsel for both the parties have relied upon the authority of Hon'ble Apex Court in case of A. Devendran (supra) and as has been seen above, the observations and ratio laid down in that authority clearly clinches the issue before me.

12. Learned counsel for the petitioner has also relied upon the following authorities:—

1. Satya Narain Sharma v. State of Rajasthan (2)

2. Ramchandra Keshava Adke (Dead) by L.Rs v. Govind Joti Chavare (3)

3. State (Delhi Administration) v. Jagjit Singh . (4)

4. State v. Shanker Bhaurao Khirode (5)

5. Kanta Prasad v. Delhi Administration (6)

13. These authorities being clearly distinguishable on facts and law do not apply to the facts of the present case and, therefore, it is unnecessary to deal with these authorities in detail.

14. But the facts in the case of State v. Hansraj (7) appear to be some what similar to the facts of the present case. Although, that authority also deals with the provisions of Section 306(3) and Section 8(2) of the Criminal Law (Amendment) Act, 1952 and not with the provisions of Section 5 of the Act. But the observations and ratio laid down in that authority also supports the view which I have taken above.

15. That case was also exclusively triable by the Special Judge in view of the provisions of Section 7 of the Criminal Law (Amendment) Act, 1952. Under Section 8 of the said Act, the Special Judge could also tender pardon but the prosecution approached the Magistrate for tendering pardon to Dhian Singh, who was one of the accused in the case instead of approaching the special Judge for such purpose. It was held that the Magistrate had no power under the Criminal Law (Amendment) Act, 1952 to deal with such cases exclusively triable by the Special Judge. It was held in that case that in such a situation the Magistrate had no power to take cognizance of the case as there was no need of commitment proceedings and the order of the learned Magistrate could not be defended even by the learned counsel for the State. However, in view of the peculiar facts and circumstances of that case, the case was transferred to the Court of Special Judge for trial. Their Lordships have further observed as under:

“Once it is held that the special Judge would be competent to tender a fresh pardon then this question would not arise at all if such a pardon is later tendered to him as it might well be but even in the absence thereof it would appear that the true legal effect of the two judgments of Bains, J., is that earlier proceedings before the Chief Judicial Magistrate and the Sub-Divisional Magistrate having been quashed must now be deemed as wholly still born and virtually non-est. The was straightaway instituted in the Court of Special Judge and blind eye must be turned to the proceedings prior thereto. In that view of the matter, in the absence of any fresh tender of pardon by the Special Judge, dhian Singh would continue to be in the position of a co-accused and consequently would not be competent witness. Of course, the tender of a fresh pardon in compliance with the requirements of law would again place Dhian Singh on the pedestal of an approver and a witnesses.”

16. Accordingly, the petitioner may also apply for fresh tender of pardon to the Special Judge and in case he is granted pardon by the Special Judge, he would also stand on the pedestal of approver and a witness but not on the basis of the order of tender of pardon passed by the learned Chief Judicial Magistrate to which order blind eye will have to be turned as it is an order wholly still-born and virtually non-est being totally without jurisdiction and illegal.

17. In this view of the matter, therefore, this petition having no merit and substance deserves to be dismissed and is hereby dismissed.