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Judgment
The petitioner is before the Court calling in question a particular order dated 10.08.2026 rejecting the claim of those accused to have their say at the stage when accused No.14 is wanting to turn as an approver in S.C.No.1319/2024 pending before LVIII Addl. City Civil and Sessions Judge, at Bengaluru City and an application to that effect is filed.
Heard the learned Senior Counsel Sri.Hasmath Pasha, appearing for the petitioner and Sri.P.Prasanna Kumar, learned Special Public Prosecutor appearing for the respondent-State.
The petitioner-Sri.Darshan has rushed to this Court on the score that he has a right to audience before an order is passed of the concerned Court considering the application of accused No.14 to turn as an approver. The issue stands completely covered by what this Court has held in VINAY RAJASHEKHARAPPA KULKARNI vs. CENTRAL BUREAU OF INVESTIGATION, reported in 2024 SCC OnLine Kar 2369, Special Leave Petition against which is turned down by the Apex Court.
This Court has summarized the findings with regard to the right of the co-accused in an application of another co-accused turning an approver as obtaining under Section 306 of the Cr.P.C., then. The findings are as follows:
"24.The learned counsel for the respondent has also contended that a co-accused cannot challenge the order of grant of pardon to another accused to transpose himself as a witness. The said submission is also refuted by the learned senior counsel representing the petitioners. The submission and contra submission need not detain this Court for long or delve deep, as the issue bears consideration in the judgment of KAILASH NATH AGARWAL itself, wherein the Apex Court holds as follows:
“…. …. ….
8.Mr Rana, learned counsel for the State, has raised three contentions:
“(1)The power under Section 337 of the Criminal Procedure Code exercisable by the various Magistrates mentioned therein is concurrent and the District Magistrate in the circumstances of this case was competent to grant pardon to Respondent 2.
(2)The Revision filed by the first respondent before the Civil and Sessions Judge against the order of the District Magistrate was incompetent.
(3)In any event, the grant of pardon by the District Magistrate is only an irregularity, which is cured by clause (g) of Section 529 of the Criminal Procedure Code, and as such the High Court was in error in interfering with the said order.”
… … ……
23.This decision of the Delhi High Court was challenged before this Court in Criminal Appeal No. 109 of 1968. In its judgment dated September 16, 1968, this Court on merits agreed with the High Court that the tender of pardon was proper. The question of the nature of the power exercised in granting pardon and the other question whether an order granting pardon was revisable by a superior court, were, however, left open. We have indicated earlier that an order granting pardon is open to revision, but whether the court whose powers are invoked for that purpose will interfere or not, is a matter depending upon the circumstances of each case. Accordingly, we hold that the first respondent's revision before the Sessions Court was competent and reject the second contention of Mr Rana.”
(Emphasis supplied)
The Apex Court holds that the order granting pardon is open to revision. It is the discretion of the Court to interfere or not. The Apex Court also observes that revisional Court can exercise suo motu powers to consider the order of grant of pardon. This Court now, in the present petition is exercising jurisdiction, under Section 482 of the Cr.P.C., and these are inherent powers which ostensibly are on a higher pedestal than that of revisional powers. But the co-accused will have a right to question procedural illegality in granting pardon, and not the order granting pardon on its merit. The issue is answered accordingly.
… … …
SUMMARY OF FINDINGS:
(a)The second application seeking pardon under Section 306 of Cr.P.C. is maintainable, only on changed circumstances, as also, in the kind of circumstance that is projected in the case at hand.
(b)Recording of a statement under Section 164 of Cr.P.C., prior to grant of pardon, is illegal and such procedure cannot be adopted in any case, while granting pardon.
(c)The procedure of examination and cross-examination will be only after grant of pardon, as is held by the Apex Court supra and not any time earlier to the grant of pardon.
(d)The co-accused do have a right to question the order granting pardon under Section 306 of the Cr.P.C., only insofar as it pertains to any procedural aberration and not the order granting pardon on its merit."
(Emphasis supplied)
Therefore in the light of the said findings, the petitioner's right is restricted or amplified only in terms of the said findings, as rendered by this Court.
The learned Special Public Prosecutor Sri.Prasanna Kumar appearing for the respondent-State would submit that if that be the order, the prosecution would have no objection.
In that light, the order passed by this Court in the case of VINAY RAJASHEKHARAPPA KULKARNI supra would govern the field insofar as the grant of approval and its aftermath.
Criminal Petition stands dismissed with the aforesaid observations.