2016 Yogesh Goudar Murder Case: Karnataka HC Quashes Order Allowing Accused To Record Statement And Pardoning Him Long After Trial Began
The Karnataka High Court quashed an order of a special court which had directed a magisterial court to record an accused's statement under Section 164 CrPC in a murder case, pursuant to which he was granted pardon and made an approver, noting that such an order was on the face of it illegal and against the law. Justice M Nagaprasanna held thus while allowing a petition filed by Congress...
The Karnataka High Court quashed an order of a special court which had directed a magisterial court to record an accused's statement under Section 164 CrPC in a murder case, pursuant to which he was granted pardon and made an approver, noting that such an order was on the face of it illegal and against the law.
Justice M Nagaprasanna held thus while allowing a petition filed by Congress leader Vinay Kulkarni and others challenging an order passed by the Special Court granting pardon to accused no 1 in the case, Basavaraj Shivappa Muttagi. The accused are charged in the Dharwad Zilla Panchayat member Yogesh Goudar murder case of 2016. The challenge considered by the high court was that the special court's order had now transposed accused No.1 as a witness by and had granted him the status of an approver under Section 306 (Tender of pardon to accomplice) of the Cr.P.C.
The bench said “The trial, in the case at hand, has commenced long ago, admittedly. Therefore, there can be no order directing recording of statement under Section 164 of the Cr.P.C., that too at the hands of the learned Magistrate, above all, in the presence of the advocate for accused No.1 and after the case has been committed to the Court of Sessions, and here the Special Court. The action of the Special Court in directing recording of statements under Section 164 of the Cr.P.C., is on the face of it, illegal and contrary to the statute”.
Section 164 CrPC pertains to recording of confessions and statements which is recorded before a magisterial court.
"The order impugned does not bear independent consideration, or independent application of mind for passage of the impugned order. It is founded only upon Section 164 Cr.P.C. statement recorded by the learned magistrate pursuant to the direction, blatantly contrary to law. Therefore, illegalities galore in granting pardon of accused No.1. The impugned order is thus unsustainable, as it stems from procedure adopted contrary to law," the court added.
Background:
Accused No.1 had for the second time filed an application under Section 306 of the Cr.P.C., seeking pardon and transposing him as a witness, by considering him as an approver in the case. On the application, the Special Court directed the learned Magistrate to record the statement of accused No.1 who had filed the application to turn himself in as an approver as obtained under Section 164 of the Cr.P.C. On receipt of such a statement, the concerned Court forms that as the foundation of the order and grants pardon in terms of the order impugned. This was challenged by the other accused persons.
The petitioners challenging the order of pardon contending that the concerned Court had no jurisdiction to direct the learned Magistrate to record the statement of the applicant under section 164 of Cr.P.C., on an application seeking pardon under Section 306 of the Cr.P.C. Moreover, once the trial commences, there is no jurisdiction of recording a confession statement under Section 164 of the Cr.P.C. The statute does not permit it.
The Prosecution submitted that petitioners, on one ground or the other, are repeatedly knocking at the doors of this Court only to delay the proceedings before the concerned Court. This court should eschew the statement under Section 164 of the Cr.P.C, consider the order impugned only on the strength of the application so preferred and affirm the order of pardon.
Findings:
The bench on the issue of maintainability of petitioner by the co-accused referred to Supreme court's decision in STATE OF U.P. v. KAILASH NATH AGARWAL, (1973) and said “This Court now, in the present petition is exercising jurisdiction, under Section 482 of the Cr.P.C., and these are inherent powers which ostensibly are on a higher pedestal than that of revisional powers. But the co-accused will have a right to question procedural illegality in granting pardon, and not the order granting pardon on its merit.”
Then the court noted that a second application seeking pardon would be maintainable if only there is a change in circumstances. Noting that the first application preferred by accused No.1 was absolutely vague. On the vague application, a detailed order came to be passed. There was no changed circumstance that would be in the strict sense of the term, but the accused No.1 throughout has been making a hue and cry about threat to his life, the threat according to his application looms large.
The court held “This threat if it would be continuous or continues in real 47 time, and not imaginary, it becomes a changed circumstance. In such circumstances only, the second application would be maintainable before the concerned Court, other than the factual or actual changed circumstance.”
Referring to the order of the special court granting pardon to the accused based on recording of the Section 164 statement by the Magistrate. The court said, “Section 164(1) of the Cr.P.C., stops at recording of confession statements on the date on which the trial commences. This is the mandate of the statute, and it is trite law that if a statute directs performance of action in a particular manner, it shall be performed in that manner only.”
Following which it held “The order impugned does not bear independent consideration, or independent application of mind for passage of the impugned order. It is founded only upon Section 164 Cr.P.C. statement recorded by the learned magistrate pursuant to the direction, blatantly contrary to law.”
It added “Therefore, illegalities galore in granting pardon of accused No.1. The impugned order is thus unsustainable, as it stems from procedure adopted contrary to law.”
Elaborating on the procedure to be followed for grant of pardon under Section 306 Cr.P.C. The court referred to Apex court judgement in the case of RAMPAL PITHWA RAHIDAS v. STATE OF MAHARASHTRA, (1994)and said “There is gross procedural aberration, as the statement under Section 164 is recorded while considering an application seeking pardon under Section 306 of the Cr.P.C, which cannot be done.”
Further it said, “Section 306 of the Cr.P.C. does not empower the concerned Court to adopt a procedure contrary to law. It is plain and simple that the Court should consider the application on its merit, either allow or reject the application, and in the event, the application is allowed, the procedure would be of recording of evidence – examination and cross-examination, of the said approver witness during the trial. Recording of confession/statement, under Section 164 of the Cr.P.C., after commencement of trial has no legal sanction.”
Rejecting the submission of the prosecution that accused by filing petitions often are delaying the trial the court said “This statement is completely contrary to all the orders of the concerned Court which is repeatedly passing orders against the prosecution in delaying completion of trial. The delay has not occasioned due to the petitioners approaching this Court every now and then, but the prosecution has also contributed to the delay.”
Allowing the petitions the court directed the trial court to expeditiously conclude the trial and at any rate within 2 months from the date of receipt of a copy of this order, if not earlier.
Case Title: Vinay Kulkarni And Central Bureau of Investigation & Others and batch
Counsel for Petitioners: Senior Advocate C.V.Nagesh, a/w Advocate Gaurav N. Senior Advocate Sandesh J Chouta a/w Advocate Sunil Kumar S
Counsel for R1: Special Public Prosecutor P Prasanna Kumar
Citation No: 2024 LiveLaw (Kar) 498
Case No: CRIMINAL PETITION No.12176 OF 2024 C/W CRIMINAL PETITION No.12188 OF 2024 CRIMINAL PETITION No.12479 OF 2024 CRIMINAL PETITION No.12492 OF 2024.