Ravi Kant and Others vs State of U.P.

M. Wahajuddin, J.—The applicants who are accused persons in S.T. No. 53/82, State v. Ravi Kant and Anr. S.T. No. 53/82have come forward with a prayer that the entire proceedings against the applicants may be quashed. It would appear that a pardon was granted to one Naresh treating him as Approver. This pardon was granted by the Chief Judicial Magistrate before whom commitment inquiries started on 5-1-1982. I have obtained report from the Administrative Office that actually notification for appointment of Special Judge under the U.P. Dacoity Affected Areas Ordinance, 1981 was made and the Special Judge took over there on 1-1-1982. It is submitted that such special court was created and started functioning, it was the special Judge who could record any statement and grant any pardon to any approver. It is urged that such powers of pardon have been expressly conferred upon the Special Judge u/s 7(4) of the Ordinance. The general provisions concerning pardon are contained in Section 306 Code of Criminal Procedure Sub-section (1) which empowers CJM Metropolitan Magistrates or Magistrate of First Class to grant pardon and Sub-clause (2) of Section 306 Code of Criminal Procedure says that section is applicable to offences triable exclusively by court of Sessions or by court of special Judge appointed under the Criminal law. It is urged that once the court of Special Judge came into existence and u/s 7(4) of the Ordinance he could grant pardon, CJM should not do it. in fact, in view of the Supreme Court pronouncement it is needless to enter into such controversy. In the Supreme Court case of State of Andhra Pradesh Vs. Cheemalapati Ganeswara Rao and Another, the inquiry was pending in the court of Distt. Magistrate. Section 337(1) of the old Code of Criminal Procedure corresponding to the present Sections 306 and 307 provided for granting of pardon by the District Magistrate. It was urged before the Supreme Court that in that case as the pardon was granted by Additional District Magistrate while enquiry was pending before the District Magistrate the order granting pardon was illegal. It was also urged that the expression ''District Magistrate'' used in Section 337(1) did not include Additional District Magistrate. The Supreme Court observed that a pardon bonafide is fully protected by the provisions of Section 529 Code of Criminal Procedure''. It is a well settled law that what to say of direct observations even the obiters of the Supreme Court are binding upon all other courts. When that is the position, I must respectfully follow the proposition of law laid down in that case. I may observe further that it is not that CJM was just an incompetent person not trusted by legislature to grant such pardon otherwise. In fact, he has been expressly empowered to do so under the provisions of Section 306(1) Code of Criminal Procedure. True that later a Special Court came into existence and that Special Court under the aforesaid provision had the power to grant pardon but if the CJM had granted pardon bonafide, the case being then with him, irregularity, if any, will stand cured on the strength of the decision of the Supreme Court under new Section 460 Code of Criminal Procedure corresponding to old 529 Code of Criminal Procedure and no interference is called upon.

It was next urged that in any case the approver should not have been released from jail until the trial concluded. So far as that aspect is concerned, it will not go to the root of the matters, and if that point is in any way relevant, touching the weight of the statement of the approver, the applicants can well raise that point and argue it. That will simply concern the matter of appreciation of testimony by the trial court with which this Court is not concerned. No other point is involved. The application u/s 482 Code of Criminal Procedure is, therefore, summarily rejected. Stay order is vacated.