Tendering Pardon To An Accomplice In A Case Triable By A Special Court Under The Prevention Of Corruption Act, 1988

2. The offences relating to bribery and corruption among public servants were originally dealt with under the Indian Penal Code, 1860 ("IPC" for short). Sections 161 to 165 A of IPC were those offences dealing with bribery and corruption. But, the post-world war fallouts facilitated wider scope for corrupt practices. Impelled by the felt necessity for curbing and stamping out this escalating evil of corruption, the Parliament enacted the Prevention of Corruption Act, 1947 ("P.C. Act, 1947" for short). This Act, however, borrowed mainly the offences under Sections 161 to 165 A of IPC. The definition of "public servant" in Section 21 of IPC was also borrowed by the P.C. Act, 1947. The aforesaid offences, however, continued to be tried by the Magistrates, as before. In the year 1949 the Government of India set up a Committee headed by Bakshi Tek Chand, inter alia to examine the measure of success achieved by the Delhi Special Police Establishment Act, 1946 ("DSPE Act" for short) in combating corruption. Thereafter, with a view to provide for the speedy trial of the aforesaid offences, the Criminal Law (Amendment) Act, 1952 was passed by the Parliament stipulating, inter alia that the aforesaid offences will be tried by Special Courts presided over by Sessions Judges or Additional Sessions Judges. The procedure continued to be warrant procedure. Section 8 of the Criminal Law (Amendment) Act, 1952 reads as follows:-

"8 - Procedure and powers of special judges - (1) A special judge may take cognizance of offences without the accused being committed to him for trial, and in trying the accused persons, shall follow the procedure prescribed by the Code of Criminal Procedure, 1898 (5 of 1898)

(2) A special judge may, with a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in, or privy to, an offence, tender a pardon to such person on condition of his making a full and true disclosure of the whole circumstances within his knowledge relating to the offence and to every other person concerned, whether as principal or abettor, in the commission thereof; and any pardon so tendered shall, for the purposes of sections 339 and 339A of the Code of Criminal Procedure, 1898, be deemed to have been tendered under section 338 of that Code.

(3) Save as provided in sub-section (1) or sub-section (2), the provisions of the Code of Criminal Procedure, 1898 shall, so far as they are not inconsistent with this Act, apply to the proceedings before a special judge; and for the purposes of the said provisions, the court of the special judge shall be deemed to be a court of session trying cases without a jury or without the aid of assessors and the person conducting a prosecution before a special judge shall be deemed to be a public prosecutor.

(3-A) In particular, and without prejudice to the generality of the provisions contained in sub-section (3), the provisions of [Sections 350 and 549] of the Code of Criminal Procedure, 1898 (5 of 1898), shall, so far as may be, apply to the proceeding before a Special Judge, and for the purpose of the said provisions of Special Judge shall be deemed to be a Magistrate.

(4) A special judge may pass upon any person convicted by him any sentence authorised by law for the punishment of the offence of which such person is convicted."

3. The subsequent appointment of the Santhanam Committee in the year 1962 was a landmark in the crusade against corruption. The said committee made exhaustive enquiries and submitted a comprehensive report. Based on the recommendations of Santhanam Committee, the Anti-Corruption Laws (Amendment) Act, 1964 followed by the Criminal Law Amendment (Amending) Act, 1966, Anti-Corruption Laws (Amendment) Act, 1967 etc. were inter alia passed finally culminating in the enactment of the Prevention of Corruption Act, 1988 ("P.C.Act, 1988" for short). In this new Act, the penal provisions were separately provided for and re-defined. Quite unusually, the P.C.Act, 1988 does not specify the date from which it shall come into force. The Act received the assent of the President of India on 09-09-1988 and was published in the Official Gazette on 12-09-1988. Hence by virtue of Section 5 of the General Clauses Act, 1897 the P.C.Act, 1988 should be deemed to have come into force on 09-09-1988 which is the date on which the Act received the assent of the President of India.

PROCEDURE OF TENDERING PARDON IN A CASE TRIABLE BY A SPECIAL COURT UNDER THE PREVENTION OF CORRUPTION ACT

4. As per the scheme of the Code of Criminal Procedure, 1973 ("Cr.P.C." for short) the various stages of a criminal case are the following:-

1. Investigation.
2. Inquiry.
3. Trial.

5. Going by the wording of Section 306 (1) and (2) Cr.P.C., pardon can be tendered to an accomplice at any of the three stages referred to above.

Section 306 Cr.P.C. applies to the following offences:-

b. Any offence triable exclusively by the Court of a Special Judge appointed under the Criminal Law Amendment Act, 1952 (46 of 1952).

Any offence punishable with imprisonment which may extend to seven years or with a more severe sentence.

(Vide Section 306 (2) Cr.P.C).

P.C. Act, 1988 also contains Section 5 which is identical to Section 8 of the Criminal Law (Amendment) Act, 1952. We are in this context, concerned about the power of the Special Judge to tender pardon to an accomplice at the stage of investigation, inquiry and trial. As in the case of Section 8 (2) of the Criminal Law (Amendment) Act, 1952, Section 5 (2) of P.C. Act, 1988 also does not say that the Special Judge can tender pardon to an accomplice "at any stage". In contradistinction, Section 306 (1) Cr.P.C. gives power to the Chief Judicial Magistrate/ Metropolitan Magistrate ("CJM/MM" for short) to tender pardon to an accomplice "at any stage". Noticing this difference in the phraseology in the two sections [i.e. Section 8 (2) of the Criminal Law Amendment Act, 1952 (corresponding to Section 5 (2) of the Prevention of Corruption Act, 1988) and Section 337 of the old Code (corresponding to Section 306 Cr.P.C), a three-Judge Bench of the Supreme Court of India, speaking through Justice M. Hidayathullah, in paragraph 8 of Commander Pascal Fernandes, Lt. v. State of Maharashtra AIR 1968 SC 594 = 1968 Cri.L.J. 550 observed as follows :-

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

Again in paragraph 10 of the above verdict, the three-Judge Bench observed as follows:-

"Before the case reaches the Special Judge, the provisions of Section 337 (2) of the Code of Criminal Procedure apply at the stage of investigation or inquiry".

(Section 337 (2) of the old Code corresponds to Section 306 Cr.P.C.)

The High Court of Kerala has also in Anantha Naryana Bhatt v. Cetral Bureau of Investigation 2009 (4) KLT 992 = 2009 KHC 853 = 2010 Cri.L.J. 926 (Kerala) taken the same view.

6. Let us now examine the mechanics of the interplay between Section 306 Cr.P.C. and Section 5 (2) of the P.C. Act, 1988. Going by the aforesaid interpretation, in Commander Pascal Fernandes, if the offence is triable by a Court of the Special Judge under P.C. Act, 1988 and

• thereafter, the CJM shall make over the case to the appropriate Magistrate who is competent to take cognizance of the offence, and to commit the case.
• such Magistrate shall examine the accomplice as a witness under Section 306 (4) (a) Cr.P.C. and then commit the case to the Special Court under Section 306 (5) (a) (ii) Cr.P.C.
• During the subsequent trial before the Special Court, the accomplice shall be examined as a witness.

AND

• thereafter, the Special Judge shall examine the accomplice as a prosecution witness during the subsequent trial.

The situation in stage (ii) above is analogous to the power of the Sessions Judge to tender pardon to an accomplice at the post-committal stage under Section 307 Cr.P.C. It is here that the examination of the approver as a witness under Section 306 (4) (a) Cr.P.C is dispensed with and not when the case reaches the Special Court through the committal route.

7. The policy of law both under Section 337 of the Code of Criminal Procedure, 1898 (old Code) corresponding, by and large, to Section 306 Cr.P.C., seems to be that at the pre-trial stage, the accomplice who is tendered pardon by a Magistrate, is not to be tried by the same Magistrate but by another Court. This can be better appreciated by perusing the CHART appended to this article. When the Cr.P.C. came into force on 25-01-1974, it cannot be assumed that the framers of the Code were unaware of Criminal Law Amendment Act, 1952 which for the first time prescribed that offences punishable under Sections 161 to 165 A IPC and the offence of "criminal misconduct" punishable under Section 5 (2) of the P.C. Act, 1947 should be tried by a Special Court. Criminal Law Amendment Act, 1952 also contains Section 8 (1) & (2) almost corresponding to Section 5 (1) & (2) of P.C. Act, 1988 entitling the Special Court to take cognizance of the offence without a committal and also empowering the Special Court to tender pardon to an accomplice. But as already indicated, the power to tender pardon to an accomplice is not given to the Special Court at all stages unlike that given to the CJM/MM under Section 306 (1) Cr.P.C. Although, Section 306 (2) (a) and 306 (5) (a) (ii) Cr.P.C specifically refer to the Special Court appointed under Criminal Law (Amendment) Act, 1952, the said Special Court cannot exercise any power of tendering pardon to an accomplice at any stage prior to taking cognizance of the offence. Hence, the power of the CJM/MM to tender pardon to an accomplice during the pre-cognizance stage including investigation of an offence which is triable by the Special Court under the P.C. Act, 1988, has not been taken away or affected in any manner by Section 5 (2) of the P.C. Act, 1988. The fact that there has been no legislative intervention to Section 306 Cr.P.C even after the coming into force of P.C. Act, 1988, fortifies this view.

8. Thus, in a case where the offence is triable by the Special Court under the P.C. Act, 1988, if pardon is to be tendered at the stage of investigation or committal proceedings (both of which are at a stage prior to the cognizance of the offence by the Special Court), the power of the CJM/MM to tender such pardon to an accomplice under Section 306 (1) & (3) Cr.P.C, is not in any way affected by Section 5 (2) of the P.C. Act. Such a case has to take the route of committal under Section 306 (5) (a) (ii) Cr.P.C.

9. If the pardon has not been tendered at the pre-cognizance stage including investigation, but is tendered by the Special Judge after taking cognizance of the offence, the position is analogous to that of a Court of Session tendering pardon under Section 307 Cr.P.C. after committal of the case. That is why the interpretation in Commander Pascal Fernandes by the three-judge Bench of the Supreme Court was applied by the High Court of Kerala also in Anantha Narayana Bhatt in the case of a Special Court exercising jurisdiction under the P.C. Act, 1988. This position stands reinforced by the verdict of the Supreme Court in State through CBI, Chennai v. V. Arul Kumar (2016) 11 SCC 733 = AIR 2016 SC 2551.

10. But, in Bangaru Laxman v. State (2012) 1 SCC 500 = AIR 2012 SC 873 and Mishra P.C. v. State (CBI) (2014) 14 SCC 629 = AIR 2014 SC 1921, separate two-judge Benches of the Supreme Court, have taken the view that in view of Section 5 (2) of the P.C. Act, 1988 the Special Judge has got the power to tender pardon to an accomplice even during the stage of investigation. In Bangaru Laxman the two-judge Bench noticed the fact that Section 8 (2) of the Criminal Law (Amendment) Act, 1952 and Section 5 (2) of P.C. Act, are pari materia. In spite of that, the distinction sought to be made between Section 337 of the old Code and Section 306 of Cr.P.C., is one made without any functional difference. It was subsequently that the aforesaid two-judge Bench of the Supreme Court in State through CBI, Chennai v. V. Arul Kumar (2016) 11 SCC 733 = AIR 2016 SC 2551, has, in my opinion, rightly observed that if pardon is tendered to an accomplice by the Chief Judicial Magistrate/ Metropolitan Magistrate during the stage of investigation and the charge sheet is filed before the appropriate committal Magistrate, the said Magistrate has to commit the case to the Special Court under Section 306 (5) (a) (ii) Cr.P.C. and that it is only in cases where the Special Judge directly takes cognizance of the offence without a committal and then exercises the power to tender pardon under Section 5 (2) of the P.C. Act, 1988 that the power of the Magistrate under section 306 Cr.P.C. is bypassed. In para 17 of Arul Kumar's case the Supreme Court noted the two routes available to the Special Judge to take cognizance of the offence, one on a committal under Section 306 (5) (a) (ii) Cr.P.C. by the Magistrate concerned and the other under Section 5 (1) and (2) of the P. C. Act without a committal. This view is not only in perfect accord with the ratio in Pascal Fernandes's case but also is consistent with the statutory scheme under the Cr.P.C. and the P.C. Act, 1988. Anantha Narayana Bhatt also stands indirectly approved by the Supreme Court in Arul Kumar's case. I am, however, with due respect, not inclined to accept the view taken in Mishra P. C. (Supra.) that the CJM/ MM and the Special Court have "concurrent jurisdiction" for tendering pardon to an accomplice. During the stage of investigation the CJM/ MM alone has jurisdiction to tender pardon to an accomplice. Likewise, at the post-cognizance stage the Special Court alone has jurisdiction to tender pardon to an accomplice. If so, it cannot be said that both the said forums have concurrent jurisdiction at all stages in the matter of tendering pardon to an accomplice.

SUMMING UP THE PROCEDURE OF TENDERING PARDON IN A CASE TRIABLE BY THE SPECIAL JUDGE UNDER THE P.C. ACT

• THE COMMITTAL ROUTE

11. Thus, in a case where the offence is triable by a Special Court under the P.C. Act, 1988 and the request for tendering pardon to an accomplice is made either to the CJM/ MM or to the Special Court during the stage of investigation or committal proceedings, then the CJM/ MM alone can tender pardon to the accomplice. The request, if any, made at this stage before the Special Court has to be forwarded to the CJM/MM for tendering pardon to the accomplice. The power of the CJM/MM to tender pardon to the accomplice under Section 306 (1) & (3) Cr.P.C at that stage, is not taken away or affected by Section 5 (2) of the P.C. Act and in such a case the route prescribed for the case to reach the Special Court is through the committal route under Section 306 (5) (a) (ii) Cr.P.C. After the tendering of pardon by the CJM/MM under Section 306 (1) & (3) Cr.P.C, the charge-sheet shall be filed by the police concerned before the appropriate Magistrate who is competent to take cognizance of the offence and to commit the case to the Special Court. The approver will have to be examined as a witness before such Magistrate in compliance of Section 306 (4) (a) Cr.P.C. The question as to whether the other accused in the case have a right of cross-examination of the accomplice at that stage will depend on the fact whether or not those accused are present consequent on process, if any, issued by the Magistrate. In case they are present during the examination of the accomplice, they cannot be denied an opportunity to cross-examine the accomplice. (Vide State of Kerala v. Monu Surendran 1990 (1) KLT 73 (DB) – U. L. Bhatt – J). The choice, in that event, is with them whether or not to avail of the said opportunity. If, on the other hand, the examination of the accomplice under Section 306 (4) (a) Cr.P.C is at the pre-process stage, then the other accused persons have no right of cross-examination of the accomplice. Thereafter, the said Magistrate should commit the case for trial to the Special Court under Section 306 (5) (a) (ii) Cr.P.C. During the subsequent trial of the case before the Special Judge, the accomplice will have to be examined as a prosecution witness.

• THE NON-COMMITTAL ROUTE

12. But in a case where the offence is triable by a Special Court under the P.C. Act, 1988 and if pardon to an accomplice is not tendered during the stage of investigation or at any time before cognizance of the offence by the Special Court, the charge-sheet shall be filed directly before the Special Court which can take cognizance of the offence without a committal in view of Section 5 (1) of the P.C. Act, 1988. After cognizance of the offence by the Special Court, if pardon to an accomplice is to be tendered, such pardon is to be tendered by the Special Judge himself. Since the pardon so tendered by the Special Judge is, by virtue of Section 5 (2) of the P.C. Act, 1988, deemed to have been tendered under Section 307 Cr.P.C, there is no need for compliance of Section 306 (4) (a) Cr.P.C and the accomplice need only be examined as a prosecution witness during the subsequent trial of the case. The position here is analogous to a pardon tendered by the Sessions Judge under Section 307 Cr.P.C at the post-committal stage.

13. In my humble view the verdicts passed by two-Judge Benches of the Supreme Court in Bangaru Laxmanv. State (2012) 1 SCC 500 = AIR 2012 SC 873 and Mishra P.C. v. State (CBI) (2014) 14 SCC 629 = AIR 2014 SC 1921, holding the view that the Special Judge under the P.C. Act, 1988 has got power to tender pardon to an accomplice even during the stage of investigation as well, do not appear to be correct and these verdicts run counter to the three-Judge Bench decision of the Supreme Court in CommanderPascal Fernandes, Lt. v. State of Maharashtra AIR 1968 SC 594 = 1968 Cri.L.J. 550 and also to the statutory scheme under the Cr.P.C and the P.C. Act, 1988 as correctly explained in State through CBI, Chennai v. V. Arul Kumar (2016) 11 SCC 733 = AIR 2016 SC 2551. This later decision of the Supreme Court, in my view, notices the true legal position. The view taken in P. C. Misra's case that the CJM/ MM and the Special Court under the P. C. Act are having concurrent jurisdiction to tender pardon, does not also, in my humble view, reflect the true legal position since both the said judicial forums can exercise the power to tender pardon only at the appropriate stage earmarked to them. The matter, in my view, may require a re-consideration by a larger Bench of the Supreme Court of India as and when occasion arises.

14. 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 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 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 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 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 Special Court.

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

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