Tendering Pardon To An Accomplice In A Case Triable By A Special Court Under The NIA Act, 2008

2. Unlike Section 5 (2) of the Prevention of Corruption Act, 1988 ("P.C Act" for short), the National investigation Agency Act, 2008 ("N.I.A. Act" for short) does not contain a specific provision enabling the N.I.A. Special Court to tender pardon to an accomplice. So, by virtue of Section 4 (2) Cr.P.C, the power to tender pardon to an accomplice, has to be located under Sections 306 and 307 Cr.P.C.

3. Sections 11 (1) and 22 (1) of the N.I.A. Act indicate that the N.I.A Special Court is established only for the "trial" of "scheduled offences". Hence, the N.I.A Special Court comes into the picture only after taking cognizance of the offence. Interpreting the power of the Special Court under Section 8 of the Criminal Law Amendment Act, 1952 (which is pari materia with Section 5 of the Prevention of Corruption Act, 1988) for trial of corruption cases, a three-Judge Bench of the Supreme Court in paragraph 8 of Commander Pascal Fernandes. Lt. v. State of Maharashtra AIR 1968 SC 594 = 1968 Cri.L.J. 550 – 3 Judges. (Hidayatullah– J) observed as follows :-

"It is obvious that the powers of the Special Judge commence only after he has taken cognizance of the case and they are available to him throughout the trial".

4. Therefore, the Special Judge can entertain an application to tender pardon to an accomplice only after taking cognizance of the offence which will be long after the close of investigation. But, if a request to tender pardon to an accomplice is received during the stage of investigation, the Special Judge cannot entertain the request. He can only forward the request for compliance by the Chief Judicial Magistrate/ Metropolitan Magistrate ("CJM/ MM" for short) who alone has got the power to tender pardon to an accomplice under Section 306 (1) Cr.P.C "at any stage including investigation". Upon receipt of a request for tendering pardon to an accomplice during the stage of investigation, the CJM/ MM, after tendering the pardon, will have to forward the case to the appropriate Magistrate empowered to commit the case to the Special Court (which, as we will presently see, is a Court of Session). It is before such Committal Magistrate that the approver will have to be examined as a witness under Section 306 (4) (a) Cr.P.C. Thereafter, such Magistrate will have to commit the case to the Special Court for trial. This is the mechanics in vogue under the Cr.P.C if pardon is tendered to an accomplice by the CJM/MM during the stage of investigation in a case triable by a Court of Session.

5. Section 16 (1) of the N.I.A. Act, no doubt, gives the N.I.A Special Court the power to take cognizance of the offence without a committal under Section 193 Cr.P.C. But, same is the position regarding the Special Court under Section 5 (1) of the P. C. Act, 1988 also. Where the power of tendering pardon to an accomplice during the stage of investigation is exercised by the CJM/ MM in a case triable by the Special Court under the P.C Act, it has been held that the case has to take the route of committal by forwarding the case to the appropriate Court empowered to commit the case to the Court of Session. This double route, one through committal by the Magistrate concerned and the other by means of direct cognizance by the Special Court has been dealt with by the Supreme Court in State through CBI, Chennai v. V. Arul Kumar (2016) 11 SCC 733 = AIR 2016 SC 2551 (A.K.Sikri – J ). It is true that in the case of the Special Court under the P. C. Act, there is no provision in the said Act for committal of the case to the Special Court. But there is a specific provision in the Cr.P.C for committal of the case to the Special Court as contained in Section 306 (5) (a) (ii) Cr.P.C. There is no similar provision either in the N.I.A Act or in the Cr.P.C enabling a committal of the case to the N.I.A Special Court. But, in view of Section 16 (3) of the N.I.A Act the N.I.A. Special Court, for all intents and purposes, is a Court of Session and the procedure to be followed there is also the procedure prescribed for trial before a Court of Session. In the case of a regular Court of Session, if pardon is tendered to an accomplice during the stage of investigation, it is the CJM/MM who can tender pardon. Thereafter the accomplice will have to be examined as a witness before the committal Magistrate and then committed to the Sessions Court in compliance of Section 306 (5) (a) (i) Cr.P.C. So, the same procedure will have to be followed by the N.I.A Special Court which is a Court of Session. If so, at least in those cases where pardon is tendered to an accomplice during the stage of investigation, there has to be a committal to the N.I.A Special Court. In view of Section 4 (2) Cr.P.C there need not be any special provision for committal of the case to the N.I.A Special Court which is a Court of Session. The pre-condition for committal under the Cr.P.C is Section 193 Cr.P.C and the provision for committal is Section 209 Cr.P.C. Both these provisions in the Cr.P.C will automatically apply to the N.I.A Special Court also. This position has been succinctly dealt with in Gangula Ashok v. State of A.P. (2000) 2 SCC 504 = AIR 2000 SC 740 (K.T.Thomas – J ) in the case of the Special Court under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act , 1989. There also it is a Court of Session which is nominated by the State Government as a Special Court. The reason for incorporating a specific provision as Section 306 (5) (a) (ii) in the Cr.P.C for committal to the Special Court under the P. C. Act, is presumably because the Special Court under the P.C Act is not a Court of Session and the procedure for trial there is warrant procedure and not sessions procedure. Hence, a provision like sub-section (5) (a) (ii) in Section 306 Cr.P.C would be unnecessary in the case of the N.I.A Special Court which is a Court of Session.

6. Thus, the CJM/ MM after tendering pardon to an accomplice during the stage of investigation in a case triable by the Special Court under the N.I.A. Act, has to forward the case to the Magistrate concerned who is empowered to commit the case to the Court of Session. In case the other accused persons are present before such Magistrate pursuant to process issued by the Magistrate, they have a right of cross-examination of the approver as was held in State of Kerala v. Monu Surendran 1990 (1) KLT 73 (DB) – U.L.Bhat – J.

7. If on the contrary, the request for tendering pardon to an accomplice is made to the Special Court after it has directly taken cognizance of the offence without a committal, the pardon can be tendered by the Special Court alone and it will be one tendered under Section 307 Cr.P.C. In such a case, the stage of examination of the approver under Section 306 (4) (a) Cr.P.C, does not arise. All that is necessary is to examine the approver in the subsequent trial before the Special Court, as is done by a Court of Session in a post-committal pardon tendered by the Court of Session itself. Where the pardon is tendered at the post-commitment stage falling under Section 307 Cr.P.C, there is no need to examine the approver as a witness under Section 306 (4) (a) Cr.P.C. (vide paras 25 and 26 of Narayan Chetanram Chaudhary v. State of Maharashtra (2000) 8 SCC 457 = AIR 2000 SC 3352 (K.T.Thomas – J ).

8. One practical problem which may crop up is to decide the Court before which the FIR is to be forwarded. There cannot be any doubt that the FIR is to be sent only to the N.I.A Special Court. If during the stage of investigation, the CJM/MM were to tender pardon to an accomplice, then the FIR can either be requested to be transmitted to the CJM/MM from the N.I.A Special Court or a certified copy of the same could be produced before the CJM/MM. After tendering pardon by the CJM/MM during the stage of investigation, the charge-sheet is to be filed before the committal Court concerned for the purpose of compliance of Section 306 (4) (a) Cr.P.C and committal of the case to the N.I.A Special Court. In all other cases where pardon is not tendered to an accomplice during the stage of investigation, then the charge-sheet is to be filed before the N.I.A Special Court which can directly take cognizance of the offence and if need be, entertain a request to tender pardon to an accomplice at the post-cognizance stage. In such a case, the approver need not be examined under Section 306 (4) (a) Cr.P.C. It will be sufficient that he is examined as a witness in the subsequent trial before the N.I.A Special Court.

The mechanics of this procedure can be demonstrated by the CHART appended herewith.

The author is a Former Judge of High Court of Kerala.