T.P. Mohideen vs The State of Madras and Another

Ramakrishna, J.—This is a novel case. The petitioner has filed the writ petition seeking a writ of certiorari to quash the order of the learned

Seventh Presidency Magistrate passed on 24-9-1944, granting pardon under S. 337 Cr.P.C. to one Gurunathan. On a perusal of the affidavit filed

in support of the writ petition and also after hearing the learned counsel for the petitioner, the grounds on which he seeks the relief can be

summarised thus:

The first is that S. 337 Cr.P.C. which provides the rule for tendering pardon to an accomplice on condition of his making a full and true

disclosure of the whole of the circumstances within his knowledge relative to the offence and to every other persons concerned, is a provision

which is opposed to all principles of law, criminal jurisprudence and natural justice. Such a provision for tendering pardon to an accomplice for the

purpose of securing ""King''s evidence"" as it is commonly known in English Law, has existed for a long time as one of the recognised, methods of

obtaining evidence in criminal trials, in cases where other methods of obtaining evidence often fail, on the principle that it will be worthwhile to

spare one of the several persons concerned in an offence from the consequence of a trial and punishment, if thereby other persons concerned along

with him in the offence can be brought to justice. In bringing offenders to justice, there is no question of discrimination or of one offender claiming

that he should be treated in the same way as the other, at the stage of investigation.

It will be totally unjustifiable to attack S. 337 Cr.P.C. a provision enacted for the purpose of facilitating the securing of evidence to establish a

criminal offences, on the ground that that section favours one accused person, who is prepared to turn King''s evidence, at the expense of the other

accused. Even an accomplice so selected for the award of pardon, cannot be said to have obtained complete exoneration form guilt. He has to

comply with the terms of the undertaking on which pardon had been granted, and in the event of his violating the undertaking, he will, at the

discretion of the authorities and on the certificate of the Public Prosecutor, be made to face a trial in the court. Actually, the provision for tendering

pardon is extended even beyond the stage of investigation, to the stage of trial u/s 338 Cr.P.C. which provides that any time after commitment, but

before judgment is made, the court to which the commitment is made may, with a view of obtaining on the trial the evidence of any person

supposed to have been directly or indirectly concerned in, or privy to, any such offence, tender, or order the committing Magistrate or the District

Magistrate to tender a pardon on the same condition (as in S. 337 Cr.P.C.) to such a person. But S. 338 is not the section to which reference is

made in this writ petition.

The second contention of the learned counsel appearing in this writ petition for the petitioner, is that S. 337 Cr.P.C. offends Art. 14 of the

Constitution which states that the State shall not deny to any person equality before the law or the equal protection of the laws within the territory

of India. There is no question in the present case of the denial of equal protection to all the accused involved in the case. It is alleged that the

petitioner is the third accused, in a criminal case in the court of the Sessions Judge, Madras, where they are being charged for offences of passing

off spurious gold articles as genuine gold articles. The grievance of the petitioner appears to be that when there are a number of persons involved in

an offence discrimination within the meaning of Art. 14 would be involved, when one is given pardon under S. 337 Cr. P.C. and the others

prosecuted. This clearly involves a misconception of the scope of Art. 14. This is not a case of a failure to give protection to the accused who are

prosecuted. It is a case of refraining form prosecution of one accused for certain reasons enjoined by the statute in the interests of the successful

prosecution of certain other persons, and getting the best evidence possible against them. This appears to me that the reference to Art. 14 of the

Constitution for this purpose, is wholly otiose.

The third contention of the petitioner is that Gurunathan to whom pardon has been granted is the principal offender, while the petitioner and

some others, who are arranged as accused in the sessions court, Madras, are only abettors or persons concerned in the offence in a relatively

minor way. This argument overlooks the terms of S. 337 itself, which provided that pardon could be given to a person concerned in the offence

whether as principal or abettor. Reference made by the learned counsel for the petitioner, to a decision of the Patna High Court in Sheobhajan

Ahir v. Emperor, AIR 1921 Pat 499 appears to be wholly irrelevant, because that was a case where the person to whom pardon was given

appeared to have been the real culprit, while the persons who were prosecuted were not so. There was no question of a principal offender and

one who was only an abettor, in that case. Further, any defect or impropriety in the grant of pardon, will be a ground on which the accused can

attack the evidence of the approver as and when he gives evidence, for the purpose of reducing the value so his testimony. It will be certainly no

ground for quashing the order of granting no ground for quashing the order of granting pardon. The result of any such order will be to put a brake

in giving effect to the statutory provisions for investigation of criminal offences, and it may also serve to obstruct the course of justice.

Finally, it was urged that a reference bad been made to the trial court under S. 432 Cr.P.C. requesting the court itself to state a case for the

decision of the High Court about the validity of the grant of the pardon to Gurunathan in this case, on the ground that the grant of pardon involved a

question as to the validity of the provision in the Criminal Procedure Code, but that the lower court refused to state a case. I am of opinion that that

order, in view of the reasons set forth above, must be deemed to be a proper one.

I therefore see no reason to admit this writ petition which is dismissed.

Petition dismissed.