Sunday, 21 August 2016

Whether CJM can tender pardon to accused after commitment of case to session court?

In view of the rival submissions, the first question that arises for consideration is whether the approver's evidence can at all be relied upon to bring home the charge against the accused persons? It is no doubt true that the very object of granting pardon to an accused is to unfold the truth in grave offence so that other accused persons involved in the offence could be brought home with the aid of the evidence of the approver. But all the same the legislative mandate as well as the safeguards enshrined in the provisions of the Code for the accused cannot be given a go by merely because of gravity of the offence. With this background in mind it would be necessary to examine the provisions of the Code for testing the correctness of the rival submissions. Coming now to the question as to whether the Chief Judicial Magistrate could have at all granted pardon to the accused even after the committal of the proceedings to the Court of Sessions, the same would depend upon the interpretation of Sections 306 and 307 of the Code. A combined reading of the aforesaid two provisions would indicate that under Section 306 power has been conferred upon the Chief Judicial Magistrate or a Metropolitan Magistrate as well as the Magistrate of the First Class to tender pardon to a person on condition of his making a full and true disclosure of whole of the circumstances within his knowledge relating to the offence. The only distinction between the two sets of Magistrates for exercise of their power lies at the stage when the power can be exercised. While a Magistrate of the First Class can exercise the power while enquiring into or trying the offence in question, the Chief Judicial Magistrate or a Metropolitan Magistrate can exercise the power at any stage of investigation or enquiry into or trial of the offence which they themselves may not be trying. But under Section 307 the power has been conferred upon the Court to which the commitment is made to grant pardon. In other words once a proceeding is committed to a Court of Sessions then only the said Court can exercise power to tender pardon to an accused. Section 307 of the Code corresponds to Section 338 of Criminal Procedure Code, 1898, If the two provisions are examined in juxtaposition it would be clear that while under Section 338 of the old Code after commitment is made the Court to which the commitment was made could himself tender pardon to an accused or could order the committing Magistrate or the District Magistrate to tender pardon, but under Section 307 of the Code of 1973 the Court to whom commitment is made, no longer retains the power to order the committing Magistrate or the District Magistrate to tender pardon. In other words underSection 307 of the present Code after commitment of a case the only Court which can tender pardon is the Court to which the commitment has been made. It would be appropriate at this stage to extract Section 338 of the old Code and the corresponding provisions of Section 307 of the new Code:
338. Power to direct tender of pardon. - At any time after commitment, but before judgment is passed the Court to which the commitment is made may, with the view of obtaining on the trial the evidence of any person supposed to have been directly or indirectly concerned in, or privy, to any, any such offence, tender, or order the committing Magistrate or the District Magistrate to tender, a pardon on the same condition to such person.
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.
7. In view of the aforesaid change in the provisions it is difficult for us to accept the contention of the learned Counsel appearing for the State that even under Section 307 after commitment of a case a Chief Judicial Magistrate retains the power to grant pardon. It may not be out of place to notice the recommendations of the Law Commission in its 41st Report in paragraph 24.23;
24.23. Under Section 338, the Court of Session may at any time after commitment of the case, but before passing judgment, either tender pardon itself, or may "order the committing Magistrate or the District Magistrate" to tender pardon. Though this power is rarely resorted to by a Court of Session, it will be useful to retain the Section. But in view of the abolition of the commitment proceedings the Court of Session need not be authorised to direct "the committing Magistrate" or any other Magistrate to tender pardon. The section may be revised to read as follows:
338. At any time after commitment of a case but before judgment is passed, the Court of Session may, with the 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.
8. The aforesaid Section has now taken the place of Section 307 in the new Code. This indicates that in the changed circumstances the legislature thought it necessary to delete the expression "or order the committing Magistrate or the District Magistrate to tender a Pardon" from Section 307 of the present Code which was there in Section 338 of the previous Code. On a plain reading of the provisions contained in Sections 306 and 307 of the Code and on examining the changes that have been brought about by the legislature from the corresponding provisions of the old Code, the conclusion is irresistible that under the new Procedure Code of 1973 once a case is committed to the Court of Sessions then it is only that Court to which the proceedings have been committed can tender pardon to a person and the Chief Judicial Magistrate cannot be said to have concurrent jurisdiction for tendering pardon.
Supreme Court of India
A. Deivendran vs State Of T.N. on 21 October, 1997
Equivalent citations: AIR 1998 SC 2821, 1997 (2) ALD Cri 884, 1998 CriLJ 814, JT 1997 (8) SC 619, 1997 (6) SCALE 516, (1997) 11 SCC 720, 1997 Supp 4 SCR 591

Bench: G Ray, G Pattanaik
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