Power Of The "N.I.A. Special Court" To Tender Pardon To An Accomplice

CONTENTS

A. INTRODUCTION

India has been the victim of large scale cross-border terrorism sponsored by various terrorist organizations. There have been innumerable incidents of terrorist attack in the militancy and insurgency affected areas in various parts of the hinterland and major cities. A large number of such incidents have been found to have complex inter-state and international ramifications which have connections with activities like the smuggling of arms and drugs, besides circulating fake currency with a view destabilize our nation. Infiltration across the borders has also been a constant headache for the country. It was after taking into consideration these problems of insurgency and allied activities that the Parliament enacted the National Investigation Agency Act, 2008. The said Act inter alia provides for the establishment of a National Investigation Agency in a concurrent jurisdiction framework. There are provisions for the setting up of Special Courts to ensure speedy disposal of cases. The Special Courts are to try offences which are enumerated in the Schedule to the Act. As of now, there are seven statutes included in the Schedule besides certain provisions of the Indian Penal Code, 1860, Arms Act, 1959 and the Information Technology Act, 2000. These offences included in the Schedule are called the "Scheduled Offences" and it is for trying these Scheduled offences that Special Courts have been constituted.

B. N.I.A Courts are Courts of Session

2. N.I.A Special Courts are established by the Central and State Governments under Sections 11 (1) and 22 (1) respectively of the National Investigation Agency Act, 2008 ("NIA Act" for short). The N.I.A Act does not contain any specific provision enabling the Special Court to tender pardon to an accomplice. Hence, by virtue of Section 4 (2) of Cr.P.C, Sections 306 to 308 are applicable to these Special Courts. A reading of the provisions of the N.I.A Act will show that the Central Government shall, or the State Government may, as the case may be, designate one or more Courts of Session as Special Courts. The short titles of those Sections also make this position clear.

Section 11. Power of Central Government to designate Court of Session as Special Courts.

Section 22. Power of State Government to designate Court of Session as Special Courts.

Thus, the Special Courts under the N.I.A Act are essentially "Courts of Session".

3. Interpreting Section 14 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 ("the SC ST Act" for short) as it then stood, the Supreme Court of India in Gangula Ashok v. State of A.P. (2000) 2 SCC 504 = AIR 2000 SC 740, speaking through Justice K. T. Thomas, held that since under Section 14 of the SC ST Act as it stood then, what is specified as the Special Court is a Court of Session, the case could be taken cognizance of only on a committal under Section 193 Cr.P.C. In paragraph 8 of the said verdict this is what the Apex Court observed :-

"S.14 of the Act says that "for the purpose of providing for speedy trial, the State Government shall, with the concurrence of the Chief Justice of the High Court, by notification in the Official Gazette, specify for each district a Court of Session to be a Special Court to try the offences under this Act". So it is for trial of the offences under the Act that a particular Court of Session in each district is sought to be specified as a Special Court. Though the word "trial" is not defined either in the Code or in the Act it is clearly distinguishable from inquiry. The word "inquiry" is defined in S.2(g) of the Code as "every inquiry, other than trial, conducted under this Code by a Magistrate or Court". So the trial is distinct from inquiry and inquiry must always be a forerunner to the trial. The Act contemplates only the trial to be conducted by the Special Court. The added reason for specifying a Court of Session as Special Court is to ensure speed for such trial. "Special Court" is defined in the Act as "a Court of Session specified as a Special Court in S.14". (Vide S.2 (1) (d))".

C. N.I.A Courts to follow Sessions Procedure

4. Section 16 (3) of the N.I.A Act makes the Special court a Court of Session and prescribes the sessions procedure to be followed for trial of cases before the Special Court. Thus, the N.I.A Special Court, being a Court of Session, will have to follow the same procedure for tendering pardon to an accomplice, as is followed by a Court of Session.

D. Procedure to be followed for tendering pardon in a case triable exclusively by a Court of Session

5. In cases triable by a Court of Session, Sections 306 and 307 Cr.P.C. contemplate the tendering of pardon to an accomplice at two stages –

• one, to be tendered by a Magistrate under Section 306 Cr.P.C at the pre-commitment stage, and
• the other, to be tendered by the Sessions Judge himself under Section 307 Cr.P.C at the post-commitment stage.

D.1. Pre-commitment pardon in a case triable exclusively by the Court of Session

6. In case the stage of the case at which a request to tender pardon is made, is the investigation stage, the Court to be approached is the CJM/ MM since as per Section 306 (1) Cr.P.C that Court alone can tender pardon to an accomplice during the stage of investigation. If the investigating agency considers it expedient to tender pardon to an accomplice during the stage of committal proceedings which is after investigation but before committing the case to the Court of Session, the necessary request for tendering pardon has to be filed before the committal Magistrate, who may forward the request to the CJM/ MM. If at any time before committing the case to the Court of Session, a request to tender pardon to an accomplice is made to the Court of Session, that Court cannot accede to the said request since the stage of the case is pre-commitment stage. Such a request will have to be forwarded by the Court of Session to the CJM/ MM for compliance as was done in Mishra P.C. v. State (CBI) AIR 2014 SC 1921 (vide para 3) and which was approved in para 15 of State through CBI, Chennai v. V. Arul Kumar AIR 2016 SC 2551 - A.K.Sikri – J.

7. The CJM/MM when moved for tendering pardon to an accomplice during the stage of investigation will, first get a confession statement of the accomplice recorded by any Magistrate of the first class under him and then proceed to tender pardon to the accomplice/approver. After such pardon is tendered by the CJM/MM, the approver is to be mandatorily examined as a witness under Section 306 (4) (a) Cr.P.C before the Magistrate who is competent to take cognizance of the offence. That Magistrate is the committal Magistrate having the power to commit the case to the Court of Session. The approver who is so examined as a witness under Section 306 (4) (a) Cr.P.C before the Magistrate taking cognizance of the offence, has to be again examined as a witness during the subsequent trial of the case which may take place before the Court of Session. After examining the approver as a witness under Section 306 (4) (a) Cr.P.C, the committal Magistrate has to commit the case to the Court of Session as provided under Section 306 (5) (a) (i) Cr.P.C. This is the procedure of tendering pardon to an accomplice at the pre-commitment stage in a case triable exclusively by a Court of Session.

D.2. Post-commitment pardon in a case triable exclusively by the Court of Session

8. If the request for tendering pardon to an accomplice is made only after the committal of the case to the Court of Session, that Court itself can tender pardon to the accomplice by recourse to Section 307 Cr.P.C. At that stage, the Sessions Judge need only be satisfied that the accomplice agrees to the condition specified in Section 306 (1) Cr.P.C and then tenders pardon thereunder and makes a record under Section 306 (3) Cr.P.C. This is the procedure of tendering pardon to an accomplice at the post-commitment stage in a case triable exclusively by a Court of Session. Where the pardon is tendered by the Sessions Judge at the post-commitment stage, the approver need not be examined under Section 306 (4) (a) Cr.P.C and it will be sufficient if he is examined as a witness during the subsequent trial of the case before the Court of Session. After the committal of the case to the Court of Session, the CJM/MM has no power to tender pardon to an accomplice. Hence, if the CJM/MM were to tender pardon to an accomplice after the commitment of the case to the Court of Session, it will be illegal and such illegality is not curable under Section 460 (g) Cr.P.C. (vide the latter half of para 9 of A. Devendran v. State of TN AIR 1998 SC 2821 – G. B. Patanaik – J).

E. Procedure to be followed by N.I.A Special Court which is empowered to take cognizance without a committal

9. Since it has already been found that the N.I.A Special Court is nothing but a Court of Session, the N.I.A Special Court also will have to follow the same procedure in the matter of tendering pardon to an accomplice. But there is one difference in the N.I.A Special Court. Unlike a Court of Session, the N.I.A Special Court can, under Section 16 (1) of the N.I.A Act take cognizance of an offence without the accused being committed to it for trial. This is analogous to the position of a Special Court for trial of cases under Section 5 (1) of the Prevention of Corruption Act, 1988 ("P.C Act" for short). Both under the P.C Act, 1988 as well as the N.I.A Act, 2008, the Special Courts are constituted only for the trial of the specified offences. It is well settled that whether it is "warrant trial" or "sessions trial", the trial of the case starts only after the framing of the charge against the accused and when the accused pleads not guilty. (vide para 28 of Ratilal Banji Mithani v. State of Maharashtra AIR 1979 SC 94 – 3 Judges – A. K. Sarkar – J – affirmed in Hardeep Singh v. State of Punjab AIR 2014 SC 1400 – 5 Judges – Dr. B. S. Chauhan – J ). If so, the Special Court which is established only for the trial of the specified offences, cannot exercise any power including the power to tender pardon to an accomplice at a stage prior to the cognizance of the offence by the Special Court, unless the Special Court is specifically empowered to do so by the provisions of the statute which has constituted the Special Court. Neither the P.C Act, 1988 nor the N.I.A Act, 2008 has given any power to the Special Courts thereunder to exercise any power (including the power to tender pardon to an accomplice) at the pre-trial stage. That is precisely why a Three- Judge Bench of the Supreme Court in paragraph 8 of Commander Pascal Fernandez v. State of Maharashtra – AIR 1968 SC 594 - 3 Judges – M. Hidayathullah – J, 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.)

Para 14 of Gangula Ashok (Supra – AIR 2000 SC 740) extracted in paragraph 3 above has also emphasized the fact that the Special Court is established only for the trial of the offences specified by the Act concerned.

Commander Pascal Fernandez was followed by a learned single Judge in Anantha Narayana Bhatt v. CBI – 2009 (2) KLD 750 – Thomas P. Joseph – J. It is true that Commander Pascal Fernandez was rendered under Section 337 of the Code of 1898 corresponding to Section 306 of the present Code of 1973.

10. Thus, in a case where pardon has been tendered by the CJM/MM to an accomplice in a case triable by the Special Court under the P.C Act during the stage of investigation, the police have to file the charge sheet before the appropriate committal Magistrate who will have to commit the case to the Special Court under Section 306 (5) (a) (ii) Cr.P.C. after examining the approver as a witness under Section 306 (4) (a) Cr.P.C. But where pardon has been tendered by the Special Judge himself after directly taking cognizance of the offence as permitted by Section 5 (1) of the P.C Act, such pardon will be deemed to be one under Section 307 Cr.P.C as provided under Section 5 (2) of the P.C Act and the charge sheet in such a case (where no pardon has been tendered by a Magistrate during the stage of investigation), will have to be filed by the police before the Special Judge himself. Same procedure as is applicable to a Court of Session will apply to the N.I.A Special Court as well.

11. As already mentioned, the Special Court under the P.C Act is specifically given the power to tender pardon to an accomplice by virtue of Section 5 (2) of the P.C Act, 1988. Hence, provision has been made under Section 306 (5) (a) (ii) of Cr.P.C. to commit the case to the Special Court, where pardon has been tendered to an accomplice during the stage of investigation by the CJM/MM. But, since no provision enabling the N.I.A Special Court to tender pardon to an accomplice has been made in the N.I.A Act, 2008, there is no corresponding provision made in the Cr.P.C. But, the CJM/MM is the only Court which can tender pardon to an accomplice during the stage of investigation and the case has to reach the Special Court through the committal route as in the case of the Special Court under the P.C Act, after the pardon tendered by the CJM/ MM and after examination of the approver as a witness under Section 306 (4) (a) Cr.P.C.

F. The Impact of "Harshad Mehta's case" AIR 2001 SC 3774

12. In the year 1992 the Reserve Bank of India came across large scale irregularities and malpractices in relation to transactions in both Government and other securities. Some share brokers, in collusion with banks and other financial institutions had indulged in diversion of huge amounts from banks and such institutions. In order to deal with that situation and to punish the guilty and also to ensure Speedy Trial and recovery of such huge amounts involved, the Central Government enacted a law by name "The Special Court (Trial Of Offences Relating To Transactions In Securities) Act, 1992". Sitting Judges of the Bombay High Court were to preside over such Special Courts.

13. During the trial of a case involving a share broker by name Harshad Mehta, two applications were filed on 21-06-1993 by two of the accused persons for tendering pardon to them. Those applications were supported by the CBI but were opposed by the co-accused (including Harshad Mehta) in the case. That case resulted in the verdict rendered by a Three-Judge Bench in Harshad Mehta v. State of Maharashtra AIR 2001 SC 3774 – 3 Judges (S.P. Bharucha, Y.K. Sabharwal & Brijesh Kumar – JJ). The salient features of the 1992 Act are as follows :-

F.1. Salient Features of Central Act 27 of 1992

Sl. No	TRANSACTIONS IN SECURITIES SPECIAL COURT ACT, 1992 (Act 27 of 1992)
1	Preamble – To provide for the establishment of a Special Court for the trial of specified offences.
2	S. 5 (2) – The Special Court shall consist of one or more sitting Judges of the High Court, presumably of the Bombay High Court.
3	S. 6 – Special Judge shall take cognizance of or try such cases as are instituted before it or transferred to it. NOTE BY THE AUTHOR: - Institution of a case can be by a "police report" or by a "private complaint".
4	S. 9 (1) – Special Court shall follow the procedure prescribed by the Cr.P.C for trial of warrant cases before a Magistrate.
5	S. 9 (2) – Special Court shall be deemed to be a Court of Session and shall have all the powers of a Court of Session and the person conducting the prosecution shall be deemed to be a Public Prosecutor. NOTE BY THE AUTHOR : - But the Special Court is not given the power to follow sessions procedure for trial unlike in the case of the Special Courts under the SC ST (P of A) Act, 1989 or the POCSO Act, 2012 or the NIA Act, 2008 because the last mentioned Courts are basically Courts of Session. (Vide Gangula Ashok v. State AIR 2000 SC 740).
6	No provision deeming the Special Court as a Magistrate's Court.
7	S. 9 (2) – Save as expressly provided in the Act, the provisions of the Code of Criminal Procedure, 1973 ("Cr.P.C") shall be applicable before the Special Court.
8	No specific provision to tender pardon to an accomplice.

F.2. Legality of Harshad Mehta's verdict considered

14. Dealing with the provisions of the 1992 Act, the Three-Judge Bench made the following observations and findings many of which are not legally sound:-

1. The Special Court is to consist of one or more sitting Judges of the High Court. (Vide para 3 of the above verdict.)
2. Section 6 of the said Act provides that the Special Court shall take cognizance of or try cases as are instituted before it or transferred to it. (Vide para 3 of the above verdict).

NOTE BY THE AUTHOR

Cognizance is normally taken of the offences and not "cases".

Since, no specific mode of cognizance by the Special Court is prescribed, we will assume that the Special Court being a criminal Court of original jurisdiction, it can tap all the sources for taking cognizance of the offences under Section 190 (1) Cr.P.C available to the Special Court.

3. As per Section 7 any prosecution in respect of any offence under Section 3 (2) of the Act shall be instituted only in the Special Court. (Vide para 4 of the above verdict).

NOTE BY THE AUTHOR : Institution of a case is normally by filing a "police report" or a "complaint".

4. Section 9 (1) of the said Act states that the Special Court shall follow the procedure prescribed for trial of warrant cases before a Magistrate. (Vide para 5 of the above verdict.)
5. Section 9 (2) provides that the Special Court shall be deemed to be a Court of Session with all the powers of a Court of Session. (Vide para 5 of the above verdict).

NOTE BY THE AUTHOR : But the Special Court is to follow warrant procedure for trial and is not given the power to follow sessions procedure for trial unlike in the case of the POCSO Act, 2012 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. This is because, the last mentioned Courts are basically Courts of Session. (vide Gangula Ashok v. State of A.P. AIR 2000 SC 740).

6. Section 9 (2) also provides that the person conducting the prosecution before the Special Court is deemed to be a Public Prosecutor. (Vide para 5 of the above verdict.)
7. The Code of Criminal Procedure, 1973, so far as its provisions are not inconsistent with the provisions of the Special Act, are made applicable to the Special Court under Section 9 (2) of the Act. (Vide para 5 of the above verdict. Para 15 of the above verdict says that this is a legislative device called incorporation by reference. In paras 50 and 51 also it is stated that what is contained in Section 9 (2) of the Special Act is called legislation by incorporation.)

NOTE BY THE AUTHOR: In my limited knowledge, the two legislative devices are known as "referential legislation or legislation by reference or legislation by citation" and "legislation by incorporation".In the legislation by reference, another statute is merely referred to or cited in a new legislation and any modification repeal or re-enactment of the statute which is cited, will also have effect in the law in which it is cited. But, in the case of legislation by incorporation, another statute in whole or part is bodily lifted and incorporated in the new law so that any amendment, repeal or re-enactment of the statute which has been incorporated, will have no repercussion on the incorporating law. (Vide the following observation in para 37 of Collector of Customs, Madras v. Nathella Sampathu Chetty AIR 1962 SC 316 – 5 Judges – N. Rajagopala Ayyankar – J ).

"There is a distinction between a mere reference to or a citation of one statute in another and an incorporation which in effect means the bodily lifting of the provisions of one enactment and making it part of another so much so that the repeal of the former leaves the latter wholly untouched. In the case, however, of a reference or a citation of one enactment by another without incorporation, the effect of a repeal of the one "referred to" is that set out in S.8(1) of the General Clauses Act, 1897."

(After explaining the principle, it was held that there was no incorporation of the Sea Customs Act, 1878 into Section 23 A of Foreign Exchange Regulation Act, 1947); See also paras 16 to 20 of Ranu Kripal Bhagat v. State of Bihar AIR 1970 SC 951 – 5 Judges – A. N. Ray – J ); Para 7 of New Central Jute Mills Co. Ltd. v. Asst. Collector of Central Excise, Allahabad AIR 1971 SC 454 – 3 Judges – A. N. Grover – J ); Para 8 of Mahindra and Mahindra Ltd. v. The Union of India AIR 1979 SC 798 – 3 Judges – P. N. Bhagwati – J; Para 15 of Western Coal Fields Ltd. v. Spl. Area Development Authority AIR 1982 SC 607 – Y. V. Chandrachud – CJI, D. A. Desai – J ); Para 17 of U. P. Avas Evam Vikas Parishad v. Jainul Islam AIR 1998 SC 1028 – 3 Judge – S. C. Agrawal – J ).

8. The Special Act does not contain any independent machinery for investigation, inquiry or trial. (Vide para 15 of the above verdict.)
9. The Special Act does not contain any specific provision for tendering pardon to an accomplice. That is why the Cr.P.C, particularly Sections 306 and 307 thereof are pressed into service. (Vide paras 16 and 53 of the above verdict).

Section 306 confers the power to grant pardon in respect of Magistrate. From this scheme of the Section and having regard to the nature of the power, we find that Mr. Jethmalani is right in contending that the power to grant pardon is not an inherent power of a criminal Court and is a substantive power to be specifically conferred. (Vide para 13 of the above verdict).

NOTE BY THE AUTHOR: If Section 306 Cr.P.C. is held applicable, then pardon under that provision can be tendered only by a Magistrate. Once it is conceded that the Special Court has been constituted for trial of the specified offences, such trial can start only upon the framing of the charge by the Court and the accused pleading not guilty to the charge as has been held in paragraph 28 of Ratilal Bhanji Mithani v. State of Maharashtra AIR 1979 SC 94 affirmed in Hardeep Singh v. State of Punjab AIR 2014 SC 1400 – 5 Judges - Dr. B.S. Chauhan.- J. Even without the aid of Commander Pascal Fernandez (Supra – AIR 1968 SC 594) anybody can without any hesitation say that the Special Court constituted for the trial of the specified offences gets jurisdiction to do so only after cognizance of the offence either directly or on committal.

1. Commander Pascal Fernandez (Supra – AIR 1968 SC 594) relied on by Mr. Ram Jethmalani was decided under Section 337 of the 1898 Code. There is a departure in the language of the provisions of Sections 306 to 308 of the present Code of 1973 and Sections 337 to 339 A of the 1898 Code. (vide para 36).

NOTE BY THE AUTHOR: But, in the matter of the procedure for tendering pardon to an accomplice there is no significant change between those two Sections. In fact, Dr. Justice B.S. Chauhan in para 16 of CBI v. Ashok Aggarwal (2013) 15 SCC 222 observed that in the matter of tendering pardon Section 306 Cr.P.C. is verbatim to Section 337 of the old Code. Commander Pascal Fernandez (Supra) was followed by Dr. Justice B. S. Chauhan in paras 18, 20 and 21 of Ashok Aggarwal (Supra) and by Justice Rumapal in paras 18 and 19 of Jasbir Singh v. Vipinkumar Jaggi AIR 2001 SC 2734. Commander Pascal Fernandez was again applied by Justice R.S. Sodhi (then of Delhi High Court,) during the trial of the celebrated case involving the former Prime Minister, Narasimha Rao. (vide P.V. Narasimha Rao v. State Through CBI 2002 Cri.L.J. 2401 (Delhi). As already mentioned, Gangula Ashok (Supre - AIR 2000 SC 740) also noted that the Special Court thereunder has been established only for the trial of the specified offences.

1. Another significant departure from the old Code is that under Section 338 of the old Code, even after committal of the case to a Court of Session, the latter Court had the power to order the committing Magistrate or the District Magistrate to tender pardon to an accomplice. But, under Section 307 of the present Code of 1973 there is no such power to the Court of Session to order the committing Court to tender pardon to an accomplice. (vide para 37 of the verdict).

NOTE BY THE AUTHOR: This observation in Harshad Mehta really goes against the verdict in that case. If after committal, the Sessions Court alone can tender pardon to an accomplice under Section 307 of the present Code, how could the Bench in Harshad Mehta discover a power in the Special Court to tender pardon even at the pre-trial stage? It is pertinent to remember that the 1992 statute in question does not even confer any power whatsoever to the Special Court even to tender pardon to an accomplice.

2. The expression 'trial' is not defined in the Act or the Code. For the purpose of the Act, it has a wider connotation and also includes in it the pretrial stage as well. S.9(2) makes the Special Court, a Court of Session by a fiction by providing that the Special Court shall be deemed to be a Court of Session and shall have all the powers of a Court of Session. (vide para 48 of the verdict).

NOTE BY THE AUTHOR: In the absence of a definition of the word "trial", the three Judges Bench ought to have followed the meaning of that word as led down in the three Judges Bench in Ratilal Bhanji Mithani (Supra AIR 1979 SC 94) to the effect that the "trial" starts with the framing of charge and the accused pleading not guilty to the same. The said definition has been approved by the Constitution Bench decision in Hardeep Singh v. State of Punjab AIR 2014 SC 1400 – 5 Judges.

The observation that the Special Court is deemed to be a Court of Session having all the powers of the Sessions Judge, rather contradicts the earlier observation that the Special Court can exercise its powers even at the pre-trial stage. It is undisputable that the Sessions Court cannot tender pardon to an accomplice at the pre-trial stage. (i.e., prior to committal).

3. After the pronouncement of the Constitution Bench in A.R.Antulay's case (AIR 1984 SC 684) the Special Court enjoys all the powers of a Court of original criminal jurisdiction. (vide para 50 of the verdict). There is no provision in the Act which negates the power of the Special Court to grant pardon. The Special Court has power to grant pardon at any stage of the proceedings. The power under S.307 cannot be denied merely because no commitment of the case is made to the Special Court. (vide para 52 of the verdict).

NOTE BY THE AUTHOR: A.R.Antulay was concerned with the powers of the Special Judge under the Criminal Law (Amendment) Act, 1952 read with P.C Act, 1947. That is a Special Judge who is specifically conferred with the power to tender pardon to an accomplice. Even that Special Judge does not have power to tender pardon to an accomplice, before taking cognizance of the offence by the Special Judge. If so, how can A.R.Antulay's case be an authority entitling the Special Judge under the 1992 Act (which does nor even confer any power on the Special Court to tender pardon) to tender pardon to an accomplice even at the pre-trail stage?

Moreover, A.R.Antulay has not held that the Special Judge therein has power to tender pardon to an accomplice even at the pre-trial stage. The only question in A.R.Antulay was whether the Special Judge exercising jurisdiction in corruption cases could entertain a private complaint and whether cognizance of the offence could be taken by the said Special Court on such private complaint. The Constitution Bench held that all the sources under Section 190 (1) Cr.P.C for taking cognizance of an offence are available to the Special Judge as well.

4. Separate applications by two of the accused persons for tendering pardon to them were filed before the Special Court on 21-06-1993 and their statements under Section 164 Cr.P.C. had been recorded earlier. Their applications were supported by the investigating officer as well as by the , but opposed by the co-accused (including Harshad Mehta) in the case. On the next day pardon was tendered to them by the Special Court. (Vide para 7 of the above verdict).

NOTE BY THE AUTHOR: At what stage these applications were filed is not discernible from the verdict. Whether it was during investigation or after cognizance, is not clear. If the tender of pardon in Harshad Mehta's case, was after cognizance was taken by the Special Court, then it can be salvaged under Section 307 Cr.P.C since the Special Court is deemed to be a Court of Session. But if the applications were filed during the stage of investigation after the submission of the report of FIR to the Special Court under Section 157 (1) Cr.P.C and before filing of the charge-sheet, it was a pre-cognizance stage. At that stage the Special Court constituted for trial of certain specified cases, would not come in the picture since the trial of a case before a Court which is following warrant procedure can start only after the framing of the charge by the Court and the accused pleads not guilty. (vide para 28 of Ratilal Bhanji Mithani v. State of Maharashtra AIR 1979 SC 94 affirmed in Hardeep Singh v. State of Punjab AIR 2014 SC 1400 – 5 Judges (Dr. B.S. Chauhan).

There is a misconception that with the dispatch of the report of FIR under Section 157 (1) Cr.P.C or with the forwarding of the FIR copy itself to the jurisdictional Court, a case is pending before that Court. It is not correct. A case can be said to be pending only when the Court takes cognizance of the offence under Section 190 (1) Cr.P.C on the "police report" filed after conclusion of investigation. Until then, the case is only at the stage of investigation. (vide paras 22 And 23 of Venkatesh Kandasami v. Government of India, Ministry of External Affairs, Chennai AIR 2015 Madras 3 (Justice V. Ramasubramanian); Paras 23 to 25 of Muhammed v. Union of India 2018 (4) KHC 945 (Kerala) (Justice Dama Sheshadri Naidu). It is well settled that cognizance of an offence cannot be taken on an FIR. (Vide para 10 of State of Karnataka v. Pastor P. Rajan (2006) 6 SCC 2825).

If the tender of pardon by the Special Court was during the stage of investigation (i.e. before the Special Judge had taken cognizance of the offences), in the absence of a specific conferment of a power in the Special Act enabling the Special Court to tender pardon to an accomplice at any stage, it cannot be treated as pardon tendered under Section 307 Cr.P.C so as to dispense with an examination of the approver under Section 306 (4) (a) Cr.P.C. The three- Judge Bench in Harshad Mehta's case, with due respect, was virtually resorting to judicial legislation by holding that the Special Court can tender pardon even at the pre-trial stage forgetting the fact that there is no enabling provision in that behalf in the Special law. The verdict of the Constitution Bench in A. R. Antulay v. R. S. Nayak AIR 1984 SC 684 – 5 Judges – D. A. Desai – J relied on in Harshad Mehta's case, did not deal with the question of tendering pardon to an accomplice. There, the only question was whether the Special Court under the P. C. Act, 1947 could entertain a private complaint and could take cognizance of an offence on such private complaint. That was answered in the affirmative.

11. The Special Court being a Court of original jurisdiction, can exercise all the powers which a Magistrate can exercise and such will include "remand", "bail" etc. exercised usually at the pre-cognizance stage. (vide paras 40 and 42).

NOTE BY THE AUTHOR: The power of "remand" is not distinctive of a Special Court which may be a criminal Court of original jurisdiction. There is a misconception in some quarters that the power of "remand" under Section 167 (2) Cr.P.C. is unique in the case of a Court of original criminal jurisdiction. This is a wrong notion entertained by some. The power of "first remand" available to the "nearest Magistrate" under Article 22 (2) of the Constitution of India and under Sections 57 and 167 (1), Cr.P.C. is inviolable. Take for instance, an accused whose case is triable by the Special Court at Mumbai, is arrested at Pune at 6 pm on a Friday, the next two days being public holidays. The accused is to be necessarily produced before the nearest Magistrate at Pune and not before the Special Court at Mumbai. Even if the Special Judge is equated to a Magistrate by calling into aid State of Tamil Nadu v. V. Krishnaswamy Naidu (1979) 4 SCC 5 = AIR 1979 SC 1255, he cannot take the role of the nearest Magistrate as envisaged by Article 22 (2) of the Constitution and Section 167 (1) Cr.P.C. on account of the reason already stated. The distinction between the words "arrest and take or send" occurring in Section 56 Cr.P.C. on the one hand and the words "arrested and detained" occurring in Sections 57 and 167 (1) Cr.P.C. on the other should not be lost sight of. When the arrest of the offender in a given case involves his "detention" for lawful purposes including investigation, his production before the nearest Magistrate is inevitable.

The legal position is beyond any controversy that if the nearest Magistrate is not the jurisdictional Magistrate, such Magistrate can only remand the accused to police custody for the first fifteen days or judicial custody. Such nearest Magistrate cannot grant bail. In case such nearest Magistrate is of opinion that there is no need to remand the accused produced before him to police or judicial custody, such Magistrate can only forward the accused to the Magistrate having jurisdiction to try the case and it is the latter Magistrate who can grant bail to the accused. Hence, nothing turns on the fact that the Special Court alone can grant bail to the accused. Even otherwise, the jurisdictional Court alone can grant bail and the nearest Magistrate can only remand the accused to Police or judicial custody, as the case may be.

Great cases make bad law

I am reminded of the following observation by the great Judge Oliver Wendel Homes of the United States Supreme Court in his dissenting opinion in Northern Securities Company v. United States 193 U. S. 197, 400 (1904) :-

"Great cases like hard cases make bad law, for, great cases are called great, not by reason of their real importance in shaping the law of the future, not because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment. These immediate interest exercise a kind of hydraulic pressure which makes what previously was clear seem doubtful, and before which even well settled principles of law will bend."

In any view of the matter, Harshad Mehta which has relied on Section 306 Cr.P.C. by implication after calling into aid Section 4 (2) Cr.P.C., cannot have the effect of repealing sub-section (5) of Section 306 Cr.P.C. Moreover, the said verdict has resorted to judicial legislation by conferring a power to the Special Court to tender pardon to an accomplice even at the pre-trial stage.

15. Harshad Mehta's case AIR 2001 SC 3774 cannot, therefore, be taken as an authority which goes against the earlier three Judge Bench decision in Commander Pascal Fernandez AIR 1968 SC 594 so as to be treated as a precedent to hold that all Special Courts can tender pardon to an accomplice even at the pre-cognizance/ pre-trial stage ignoring the statutory scheme under Sections 306 to 308 Cr.P.C.

G. Right, if any, of the co-accused to cross-examine the approver during his examination under Section 306 (4) (a) Cr.P.C

16. According to this author, the question whether the co-accused have a right to cross-examine the approver during the stage of his examination under Section 306 (4) (a) Cr.P.C, will depend upon the stage at which pardon is tendered to an accomplice. If the examination of the approver under Section 306 (4) (a) is conducted before the issue of process to the accused, the latter cannot have any right of hearing or participation in Court. This is comparable to the examination of the complainant and his witnesses under Sections 200 and 202 Cr.P.C. The settled position is that the accused cannot have a right of hearing since process is yet to be issued to him. (Vide Vadilal Panchal v. Dattatraya Dulaji Ghadigaonkar AIR 1960 SC 1113 = 1960 Cri.L.J. 1499 – 3 Judges – S. K. Das, J. L. Kapur, M. Hidayatullah – JJ )

Chandra Deo Singh v. Prakash Chandra Bose (1964) 1 SCR 639 – Mudholkar – J; Nagawwa v. Veeranna Sivalingappa Konjalgi (1976) 3 SCC 736 = AIR 1976 SC 1947 – S. Murtaza Fazl Ali – J; Sashi Gena v. Khadal Swain (2004) 4 SCC 236 = AIR 2004 SC 1492 – B.N. Agrawal – J; Para 53 of Manharibhai Muljibhai Kakkadia v. Shaileshbhai Mohanbhai Patel (2012) 10 SCC 517 – 3 Judges – R. M. Lodha – J ).

But in cases where examination of the witnesses is conducted under Sections 244 and 246 Cr.P.C in the case of private complaint, warrant trial, the accused who are present in Court pursuant to the issue of process cannot be denied a right to cross-examine the witnesses. (vide Ajoy Kumar Ghose v. State of Jharkhand and another (2009) 14 SCC 115 = AIR 2009 SC 2282 – V.S. Sirpurkar – J; Harinarayan G. Bajaj v. State of Maharashtra – (2010) 11 SCC 520 – V.S. Sirpurkar – J and Sunil Mehta v. State of Gujarat (2013) 9 SCC 209 – T.S. Thakur - J).

In cases where the accomplice was tendered pardon during the stage of investigation, the preponderance of judicial opinion is that there is no right for the co-accused to cross-examine the approver during his examination under Section 306 (4) (a) Cr.P.C. Vide—

1. In Re Chief Judicial Magistrate, Trivandrum 1988 Cri.L.J. 812 – S. Padmanabhan – J.
2. Kurian v. State - 1989 (1) KLT SN 37 (DB) – U.L. Bhat – J.
3. State of H.P. v. Surinder Mohan - (2000) 2 SCC 396 = AIR 2000 SC 1862 – M. P. Shah – J.
4. Ranadhir Basu v. State of West Bengal (2000 (3) SCC 161 = AIR 2000 SC 908 – G. T.Nanavathi – J.

This is because of the fact that during the stage of investigation (which is a pre-process stage) the co-accused are not before Court.

But, in cases where the co-accused are present before Court in compliance of process issued to them, in the following decisions, Courts have recognized a right to cross-examine the approver who is examined as a witness under Section 306 (4) (a) Cr.P.C :-

1. Sanjay Gandhi v. Union of India (1978) 2 SCC 39 = AIR 1978 SC 514 – V. R. Krishna Iyer – J.
2. State of Kerala v. Monu Surendran – 1990 (1) KLT 53 DB – U.L.Bhat – J.
3. Sitaram v. State of Jharkhand (2007) 12 SCC 630 = AIR 2008 SC 391 – Dr. Arijit Pasayat – J.

H. Author's Conclusion on the procedure

17. a) The N.I.A Special Court which is a Court of Session can tender pardon to an accomplice only after taking cognizance of the offence. The observations quoted in para 9 above from the three-Judge Bench decision in Commander Pascal Fernandez AIR 1968 SC 594, are axiomatic and have not been offset by the verdict in Harshad Mehta AIR 2001 SC 3774 in any manner whatsoever. On the contrary Gangula Ashok AIR 2000 SC 740 has also reiterated that such Special Courts are established only for the trial of the specified offences. Hence, those Special Courts can exercise their powers only after taking cognizance of the specified offences.

b) The verdict in Harshad Mehta AIR 2001 SC 3774 cannot be treated as binding for the reasons stated in paragraph 14 above.

c) If the request for pardon is made either during the stage of investigation or at any time before the Special Court takes cognizance of the offence, such request should be complied by the CJM/MM and the case should reach the Special Court only on a committal as in the case of a Court of Session and that too, after examination of the approver as a witness before the committing Magistrate as provided Section 306 (4) (a) Cr.P.C.

d) If the request for tendering pardon is made after the Special Court takes cognizance of the offence then that Court itself can tender pardon under Section 307 Cr.P.C in which case the procedure of examining the approver as a witness under Section 306 (4) (a) Cr.P.C is waived or dispensed with.

e) Bangaru Laxman v. State (Through CBI) AIR 2012 SC 873 – A.K. Ganguly – J and Mishra P.C v. State (Through CBI) AIR 2014 SC 1921 – K.S. Radhkrishanan – J, which have followed Harshad Mehta for taking the view that the Special Court under the P.C Act, 1988 has power to tender pardon to an accomplice even at the pre-cognizance stage, with due respect, do not lay down the correct law. On the contrary, in my humble view the law has been correctly laid down in State of T.N. v. V. Arul Kumar AIR 2016 SC 2551 – A.K.Sikri – J.

18. The mechanics of the procedure of tendering pardon in a case triable by the N.I.A Court can be better demonstrated in the form of a CHART appended to this article.

I. C H A R T

1	2	3	4	5	6	7	8
Sl.No.	Case triable by which Court as per the Cr.P.C or any other law	Stage of the case when pardon to accomplice is tendered	Court which tenders pardon to accomplice and under which provision	Court taking cognizance of the offence	Whether examination of the accomplice under Section 306 (4) (a) mandatory and if so, before which Court	Whether the other accused have a right of cross-examination of the accomplice during Sec. 306 (4) (a) stage	Court by which case is to be finally tried as per Section 306 (5) Cr.P.C
1	Special Court. NIA Act, 2008. Ss. 11 & 22.	Investigation (before filing final report). (other accused Absent since it is pre-process stage).	The CJM/a MM S.306 (1) & (3) Cr.P.C.	CJM/MM/ JMFC, competent to commit the case. (Charge-sheet to be filed here).	Yes CJM/MM/ JMFC, competent to commit the case.	No, if they are at the pre-process stage. YES, if they are present after process.	Special Court S. 306 (5) (a) (i).
2	Special Court. NIA Act, 2008. Ss. 11 & 22.	Inquiry or Trial Before Special Court after cognizance by Special Court. (S. 306 (4) (a) Cr.P.C not applicable).	Special Court. S. 307 Cr.P.C.	Special Court.	No, since pardon tendered is under S.307 Cr.P.C. S. 306 (4) (a) Cr.P.C not applicable.	No, since S. 306 (4) (a) Cr.P.C. has no application	Special Court S. 306 (5) (a) (i).

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