Gurbachan Singh v. State of Bihar and Rajpal Sharma v. State of
Bihar (supra) it has been held by the Apex Court as under:
“We have already reproduced above Section 306 of the Code
the provisions of which apply to any offence triable
exclusively by the Court of Special Judge to any offence
punishable with imprisonment extending to seven years or
with a more serious sentence. Section 306 of the Code lays
down a clear exception to the principle that no inducement
shall be offered to a person to disclose what he knows about
the procedure (sic). Since many a times the crime is
committed in a manner for which no clue or any trace is
available for its detection and, therefore, pardon is granted
for apprehension of the other offenders for the recovery of the incriminating objects and the production of the evidence
which otherwise is unobtainable. The dominant object is that
the offenders of the heinous and grave offences do not go
unpunished, the Legislature in its wisdom considered it
necessary to introduce this section and confine its operation
to cases mentioned in Section 306 of the Code. The object of
Section 306 therefore is to allow pardon in cases where
heinous offence is alleged to have been committed by several
persons so that with the aid of the evidence of the person
granted pardon the offence may be brought home to the rest.
The basis of the tender of pardon is not the extent of the
culpability of the person to whom pardon is granted, but the
principle is to prevent the escape of the offenders from
punishment in heinous offences for lack of evidence. There
can therefore be no objection against tender of pardon to an
accomplice simply because in his confession, he does not
implicate himself to the same extent as the other accused
because all that Section 306 requires is that pardon may be
tendered to any person believed to be involved directly or
indirectly in or privy to an offence.”
14. In the matter of Jayalakshmi Jaitly v. CBI (supra) the High Court
of Delhi has held as under :
“The pardon proceeding which takes before the
Magistrate is neither an enquiry nor a trial in which an
opportunity must be given to the other accused to show to
the Court that the statement of the accused seeking pardon is
not true. Only during the course of trial, the opportunity will
be given to the accused to show to the Court that the
approver's evidence at the trial is untrustworthy in view of the
contradiction or improvements made by him by allowing the
accused to cross-examine. Petitioner’s contention that the
statement given by 2nd respondent is self-exculpatory and
has been given implicating others in order to escape from the
punishment has no merit at this juncture. For granting pardon
under Section 306 Cr.P.C., it is not a pre-requisite condition
that the statement of a person on whose behalf pardon is
sought must be in the nature of confession or he must
implicate himself fully in the offence. What the section
requires is to obtain statement from the person who is supposed to be directly or indirectly concerned in or privy to
the offence and such a person can be granted pardon on the
condition of his making a full and true disclosure of whole of
the circumstance within his knowledge relative to the offence.
(CBI vs. N.K. Amin & Ors., 2011 (3) RCR (Criminal) 834).”
15. Thus in view of the aforesaid factual and legal position, this Court
finds sufficient force in the argument advanced on behalf of the CBI that
the trial Court should not have weighed the evidence yet to be produced
while deciding the application under Section 306 of the Code. The trial
Court has further erred in law to hold that in case the pardon is granted to
the respondent, he will not disclose the true facts and will not be a truthful
witness. This finding recorded by the CBI Court is without any basis and
there was no occasion for it to record the said finding. Special Judge has
failed to appreciate that the respondent being the middleman between
Khaitain Group, CCIT and JCIT is an important connecting link to prove the
entire conspiracy of obtaining illegal gratification. The CBI was therefore
fully justified in filing the application under Section 306 of the Code for
grant of pardon to the respondent.
HIGH COURT OF CHHATTISGARH, BILASPUR
CRR No. 705 of 2015
Central Bureau Of Investigation Vs O.P. Singhania
Coram:
Hon'ble Shri Justice Pritinker Diwaker
Dated:14/01/2016
Citation: 2016 CRLJ 2830
the Special Judge, CBI, Raipur in Criminal Case No. RC-1242012A0002
rejecting the application filed by the applicant – CBI, for grant of pardon to
respondent O.P. Singhania under Section 306 of the Code of Criminal
Procedure (for short the “Code”).
2. Facts of the case in brief are that on the basis of source information
FIR was registered by the applicant vide RC-1242012A0002 against 08
accused persons alleging commission of offence under Sections 7, 8 and
12 of the Prevention of Corruption Act (for short “the Act”) read with
Section 120-B of the Indian Penal Code (for short “IPC”). According to CBI,
the Income Tax Department conducted survey in Khaitan Group and found
one Rajesh Agrawal to be the Chartered Accountant of the said Group. The
respondent herein is also a Chartered Accountant who according to CBI isclose to Rajesh Agrawal. Certain illegal gratifications were said to be
demanded by the Income Tax Officers for reducing the surrender amount
and it is alleged that respondent O.P. Singhania managed all the affairs
and convinced Khetan Group that he would manage the Income Tax
Officers. It is said that on 26.4.2012 the respondent went to the house of
Joint Commissioner, Income Tax (for short “JCIT”) who demanded Rs. 15
Lakhs immediately from Khaitan Group. Accordingly, information was
passed on by the respondent to one Arun Khetan to arrange the bribe
amount and to reach the residence of JCIT immediately. Thereafter, Arun
Khaitan and Sapan Khaitan came out of the house and while sitting in the
car the bribe amount was handed over by Arun Khaitan and Sapan
Khaitan to JCIT at his residence. Both Arun Khaitan and Sapan Khaitan
after handing over the bribe amount to JCIT came out of the house and on
the way they were apprehended by the CBI and brought back to the house
of JCIT. Thereafter, the bribe amount was recovered and trap proceedings
were conducted. Immediately thereafter the CBI apprehended the
respondent herein namely O.P. Singhania from Pandri Market and he too
was brought back to the residence of JCIT. After completing all the
formalities, the accused persons were arrested.
3. On 13.5.2014 CBI recorded the statement of the respondent under
Section 161 of the Code whereas the statement under Section 164 of the
Code was recorded on 25.6.2014 by the Chief Judicial Magistrate, Raipur.
On 5.12.2014 CBI filed an application before the Special Judge, CBI Raipur
for tender of pardon to respondent and to examine him as approver under
Section 306 of the Code vide Ex. D-1. On 8.4.2015 the Court of Special
Judge, CBI, Raipur issued notice to the respondent on the application filed
by CBI and on 12.5.2015 the respondent gave his written consent by filing
affidavit on solemn affirmation.
4. Vide impugned order dated 19.5.2015 learned Special Judgerejected the application filed by CBI under Section 306 of the Code and
observed that version of respondent in his statement recorded under
Section 164 of the Code differs from the version of disclosure/recovery
memo inasmuch as the statement u/s 164 states that “the respondent left
the place by his car and thereafter Aarun Khaitan and Sapan Khaitan went
inside the residence of Shri Athaley (JCTI)”. It is further observed by the
Special Judge that approver is not giving the correct details of bribe
transaction and therefore it is difficult to understand as to why the
prosecution wants respondents to be approver under Section 306 of the
Code and how the prosecution believes that he will disclose the correct
facts before the Court. Special Judge also felt that in case respondent is
made approver, he may not disclose the true and correct facts and cannot
be a truthful witness, and by observing this application of CBI has been
rejected. It is this order which is under challenge in this revision.
5. Counsel for the applicant submits that the Court below has unnecessarily
weighed the evidence still to be adduced by the prosecution.
He submits that the Special Judge has prejudged the entire prosecution
case at this stage while considering the application for grant of pardon
and was not supposed to record any finding solely on the basis of the
statement of the respondent recorded under Section 164 of the Code.
Counsel for the applicant further submits that the Court below has
erroneously recorded the finding that the statement of the respondent
recorded under Section 164 of the Code was not completely true as he
was admittedly exonerating himself from the prosecution case. It is
submitted that the Special Judge has further erred in law in holding that in
such circumstances, the respondent, on grant of pardon would not prove
true and will be of no aid to the case of the prosecution. It is further
submitted that the trial Court has exceeded its jurisdiction by appreciating
the evidence before the charge-sheet is filed and has committed an error
by reaching a conclusion that he is not telling the truth and there was nooccasion to analyze the evidence. In support of his submissions, counsel
for the applicant placed reliance on the decisions of the Apex Court in the
matter of Jasbir Singh v. Vipin Kumar Jaggi and others reported in
(2001) 8 SCC 289, in the matter of Central Bureau of Investigation
v. Ashok Kumar Aggarwal and another reported in (2013) (15) SCC
222, in the matter of Suresh Chandra Bahri v. State of Bihar with
Gurbachan Singh v. State of Bihar and Rajpal Sharma v. State of
Bihar reported in 1995 Supp. (1) SCC 80 and on the decision of Delhi
High Court in the matter of Jayalakshmi Jaitly v. CBI passed in Crl. MC
No. 1036/2013.
6. Counsel for the respondent while supporting the contention of the
CBI submits that before the Special Judge the respondent has given his
consent to become approver and reiterated the said contention before
this Court as well. He has further argued that the application filed by the
CBI has wrongly been rejected by the Special Judge without considering
his legal submissions.
7. Heard counsel for the parties and perused the documents on record.
8. Before proceeding with the question involved in the case, it appears
necessary to take note of the relevant provisions of law which are
reproduced as hereunder:
“Section 306 (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 307 : 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.
Section 308 (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 person has, either bywilfully 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 not been
complied with.
(4) At such trial the Court shall-
(a) if it is a Court of Session, before the charge is
read out and explained to the accused;
(b) if it is the Court of a Magistrate before the
evidence of the witnesses for the prosecution is
taken,
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.”
9. Bare reading of Section 306 of the Code makes it clear that object of
this Section is to obtain true evidence of offences by the grant of pardon
to accomplice/approver so as to prevent the escape of the offenders from
punishment for lack of evidence in grave cases. It is further apparent that
Section 306 is a condition precedent to the accomplice/approver who is
giving full and true disclosure of the facts within his knowledge. It is only a
promise which is required from the person who is ready to becomeapprover that he would give full and true disclosure of facts within his
knowledge of the offences and every person concerned. The legal position
is further clear that after recording the statement under Section 306 (4) of
the Code and after the evidence is recorded in the trial, if the trial Court
comes to the conclusion that the accomplice/approver has not given full
and true disclosure of the facts within his knowledge then in that case
Section 308 of the Code would come in play and his pardon can be
revoked and he may be tried for the offences in respect of which the
pardon was so granted. The basis of exercise of this power is not to judge
the extent of culpability of the person to whom the pardon is tendered.
The main purpose is to prevent failure of justice by allowing the offenders
to escape from a lack of evidence in grave offences.
10. To summarize, section 306 of the Code provides that the Court has
to look into (i) whether the respondent is directly or indirectly privy to the
offence committed (ii) whether the prosecution needs his evidence to
make their case strong against the main offenders (iii) promise from the
respondent that he would make full and true disclosure of the facts
relating to the offence and the offenders and (iv) consent of the
respondent to turn approver.
11. In the case of Jasbir Singh v. Vipin Kumar Jaggi and others
(supra) it has been held by the Apex Court as under:
“Judged by this standard, the first order of the Sessions Judge
refusing pardon to respondent 1 even though it was actively
canvassed for by the Special Public Prosecutor, was wrong. It
was not for the Sessions Judge to have considered the
possible weight of the approvers evidence, even before it was
given. In any case, the evidence of an approver does not
differ from the evidence of any other witness except that his
evidence is looked upon with great suspicion. But the
suspicion may be removed and if the evidence of an approver
is found to be trustworthy and acceptable then that evidencemight well be decisive in securing a conviction. The Sessions
Judge could not and indeed should not have assessed the
probable value of the possible evidence of respondent 1 in
anticipation and wholly in the abstract.”
12. In the matter of Central Bureau of Investigation v. Ashok
Kumar Aggarwal and another (supra), it has been held by the Apex
Court as under:
“In Jasbir Singh this Court dealt with the issue observing that
the court while considering the application for tendering
pardon is not to consider the possible weight of the
approver’s evidence even before it was given. The evidence
of an approver does not differ from the evidence of any other
witness except that the evidence of the approver is looked
upon with more caution. The suspicion of such evidence may
be removed and if the evidence of an approver is found to be
trustworthy and acceptable, then the evidence might will be
decisive in securing a conviction. Thus, the court while
exercising such power should not assess the probative value
of the possible evidence of the person seeking permission to
become an approver in anticipation and wholly in the
abstract.”
13. In the matter of Suresh Chandra Bahri v. State of Bihar with
Gurbachan Singh v. State of Bihar and Rajpal Sharma v. State of
Bihar (supra) it has been held by the Apex Court as under:
“We have already reproduced above Section 306 of the Code
the provisions of which apply to any offence triable
exclusively by the Court of Special Judge to any offence
punishable with imprisonment extending to seven years or
with a more serious sentence. Section 306 of the Code lays
down a clear exception to the principle that no inducement
shall be offered to a person to disclose what he knows about
the procedure (sic). Since many a times the crime is
committed in a manner for which no clue or any trace is
available for its detection and, therefore, pardon is granted
for apprehension of the other offenders for the recovery of theincriminating objects and the production of the evidence
which otherwise is unobtainable. The dominant object is that
the offenders of the heinous and grave offences do not go
unpunished, the Legislature in its wisdom considered it
necessary to introduce this section and confine its operation
to cases mentioned in Section 306 of the Code. The object of
Section 306 therefore is to allow pardon in cases where
heinous offence is alleged to have been committed by several
persons so that with the aid of the evidence of the person
granted pardon the offence may be brought home to the rest.
The basis of the tender of pardon is not the extent of the
culpability of the person to whom pardon is granted, but the
principle is to prevent the escape of the offenders from
punishment in heinous offences for lack of evidence. There
can therefore be no objection against tender of pardon to an
accomplice simply because in his confession, he does not
implicate himself to the same extent as the other accused
because all that Section 306 requires is that pardon may be
tendered to any person believed to be involved directly or
indirectly in or privy to an offence.”
14. In the matter of Jayalakshmi Jaitly v. CBI (supra) the High Court
of Delhi has held as under :
“The pardon proceeding which takes before the
Magistrate is neither an enquiry nor a trial in which an
opportunity must be given to the other accused to show to
the Court that the statement of the accused seeking pardon is
not true. Only during the course of trial, the opportunity will
be given to the accused to show to the Court that the
approver's evidence at the trial is untrustworthy in view of the
contradiction or improvements made by him by allowing the
accused to cross-examine. Petitioner’s contention that the
statement given by 2nd respondent is self-exculpatory and
has been given implicating others in order to escape from the
punishment has no merit at this juncture. For granting pardon
under Section 306 Cr.P.C., it is not a pre-requisite condition
that the statement of a person on whose behalf pardon is
sought must be in the nature of confession or he must
implicate himself fully in the offence. What the section
requires is to obtain statement from the person who issupposed to be directly or indirectly concerned in or privy to
the offence and such a person can be granted pardon on the
condition of his making a full and true disclosure of whole of
the circumstance within his knowledge relative to the offence.
(CBI vs. N.K. Amin & Ors., 2011 (3) RCR (Criminal) 834).”
15. Thus in view of the aforesaid factual and legal position, this Court
finds sufficient force in the argument advanced on behalf of the CBI that
the trial Court should not have weighed the evidence yet to be produced
while deciding the application under Section 306 of the Code. The trial
Court has further erred in law to hold that in case the pardon is granted to
the respondent, he will not disclose the true facts and will not be a truthful
witness. This finding recorded by the CBI Court is without any basis and
there was no occasion for it to record the said finding. Special Judge has
failed to appreciate that the respondent being the middleman between
Khaitain Group, CCIT and JCIT is an important connecting link to prove the
entire conspiracy of obtaining illegal gratification. The CBI was therefore
fully justified in filing the application under Section 306 of the Code for
grant of pardon to the respondent.
16. Order impugned is thus set aside. Application filed by the CBI under
Section 306 of the Code for tender of pardon to respondent is allowed and
the CBI is permitted to examine him as approver.
17. Revision allowed.
Sd/-
(Pritinker Diwaker)
Judge
Jyotishi
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