State vs Mardan Ali

This is an application under Section 339 (3) of the Code of Criminal Procedure for the sanction of the Court to prosecute one Mardan Ali of an offence under Section 193 I.P.C. for making a false statement when he was granted a pardon under Section 337 Cr.P.C. He himself admits now that the statement was false but in giving sanction the Court has to enquire whether the circumstances are such as to make such sanction necessary.

I am not satisfied with the manner in which pardon as granted on 13th Baisakh 1988. A police report was made to the Additional District

Magistrate to permit the first class Magistrate Mirpur to record the confession. The first class Magistrate Mirpur recorded the confession without giving any thought to the matter whether under the circumstances of the case it was right or wrong to grant pardon under Section 337 (4) of the

Code of Criminal Procedure, which in this State is not amended by the amendment of 1923. It is laid down that every Magistrate other than a presidency magistrate who tenders the pardon under the Section shall record his reasons for so doing. The necessity for recording reasons is imperative so that a Magistrate may not start granting pardon and recording statement merely on the request of the police in whose custody a prisoner may have remained for a considerable time but a Magistrate may himself look into the matter and see whether under the circumstances of the case a pardon should be granted or not. If the Magistrate had given any thought to the matter it is possible that having regard to the long period of a month and a half during which Mardan Ali was in police custody he may have postponed granting pardon and recording statement for a day or

two, in the meanwhile taking Mardan Ali out of police custody and sending him to the Jail lockup. However, it may be, it seems essential that the

Magistrate recording a confession should consider the matter and come to a definite conclusion that it would be reasonable under the circumstances of the case to grant pardon. In the present case no such effort was made either by the Additional District Magistrate or by the first class Magistrate to understand the case and to determine whether there was any reason to grant the pardon. This omission on the part of both the

Mistress raises a suspicion that the statement may have been under police influence. I am therefore, not prepared to grant sanction to prosecute for making a false statement under Section337.

This application is dismissed.