Madan Lal Dogra vs State of Jammu & Kashmir and Others

Barin Ghosh, C.J.—This revision is against an order passed by the Special Judge, Anti-corruption, Jammu dated December 7, 2006. By

this order, accepting the application made by the prosecution, the Special Judge, has pardoned the accused persons namely, Mohd Munir Wani

and Abdul Razak to allow the prosecution to examine them as prosecution witnesses by dropping them from the list of accused persons. The

applicant is also one of the accused persons. Charge against him has not yet been framed. He is aggrieved against the said order, inasmuch as the

said order has been passed on an application of the prosecution and not on applications of the said accused persons; and that the order does not

show that the Special Judge, applied his mind, as no reasons have been furnished. It is the contention of the applicant that it was obligatory on the

part of the Special Judge, to ascertain what evidence these persons are likely to give and what benefit therefrom the prosecution would get, but the

Special Judge, has failed to do so. Learned Counsel for the applicant has cited before me a judgment of the Hon'ble Supreme Court rendered in

the case of Lt. Commander Pascal Fernandes Vs. The State of Maharashtra and Others, , to support his aforementioned contentions. In

paragraph Nos. 4 and 15 of the said judgment, the Hon'ble Supreme Court has made it clear that it is for the prosecution to ask that a particular

accused out of several, may be tendered pardon. The said paragraphs make it further clear that an accused may also directly apply to the Special

Judge for such pardon. The paragraphs further make it clear, when such an approach is made by the accused directly, it is obligatory on the part of

the Special Judge first to refer the request to the prosecuting agency. In the said paragraphs, the Hon'ble Supreme Court has said that when a

request made by the accused directly is referred to the prosecution, the Special Judge would be entitled to exercise jurisdiction to grant pardon

only when the prosecution joins in the request. While doing so, the Hon'ble Supreme court has observed that the power, which the Special Judge

exercises, is not on his own behalf but on behalf of the prosecuting agency. In view of such clear cut pronouncement of the Hon'ble Supreme

Court, the first point of challenge, that the law requires the pardon seeker to apply, fails.

The power to tender pardon, has been engrafted in Section 337 of the Code of Criminal Procedure applicable to the State. Sub-section (1-a)

of the said Section requires every Magistrate, who tenders a pardon under Sub-section (1), to record his reasons for doing so. It is, therefore, a

requirement of law that the Magistrate must record his reasons for granting pardon. In the aforementioned judgment of the Hon'ble Supreme

Court, the Hon'ble Supreme Court has indicated that when the Special Judge seeks to tender pardon, he must know the nature of evidence the

person seeking conditional pardon is likely to give, the nature of his complicity and the degree of his culpability in relation to offence and in relation

to the co-accused. Therefore, the said judgment indicates to what the reasons required to be given must address.

In the instant case, as would be evidenced from the order under challenge that, before the Magistrate exercised the power, the persons who

were granted conditional pardon, had recorded statement u/s 164 of the Code of Criminal Procedure, wherein they had indicated all the evidence

they would tender in course of the trial. While doing so, they have recorded who prepared the Tax deducted at source certificates; how they were

made; where those were made; and what role they played in relation thereto. The Special Judge has recorded in the order under challenge that he

has perused the record of the case and has taken note of the status of, and role alleged to have been played by the persons, who were granted

pardon, and also their statements made u/s 164 of the Code and, only after considering the same, the Special Judge felt that those persons may be

tendered conditional pardon and the prosecution be allowed to examine them as witnesses.

I think, while doing so, the Special Judge discharged his statutory obligations, as was required to be discharged by him.

In the circumstances, the application fails and the same is dismissed.

Records be returned. The trial Court is directed to proceed in the matter without any further delay.