IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF DECEMBER, 2017 BEFORE THE HON’BLE MR.JUSTICE K.N. PHANEENDRA Crl.R.P. No.1596 OF 2016 BETWEEN:
1. Veena B.C.
W/o A. Sreenath, Aged about 44 years, 2. A.Sreenath, S/o Sri. H.V.Aswath, Aged about 46 years, Both are R/at No.36/2, I Floor, 17th Kilometer, Talaghattapura Village, Kanakapura Main Road, Uttarahalli Hobli, Bangalore-560062 (By Sri. S.B. Krishna-Advocate) AND:
…..Petitioners 1. The State of Karnataka, By Central Bureau of Investigation, Bank Securities and Fraud Cell, No.36, 2nd Floor, Bellary Road, Ganganagar, Bangalore-560032.
2. E.Mohan Raju, S/o late Perumal Raju, Aged about 48 years, R/at No.1732, 8th Cross, 17th Main, H.P.Nagar, 2nd Phase, Bangalore-560078.
(By Sri.P.Prasanna Kumar Adv. for R1 and Sri.C.H.Jadhav Sr.Counsel for Jadhav Law Associates for R2) ...Respondents This Criminal Revision Petition is filed under Section 397 R/w 401 of Cr.P.C., to set aside the order dated 10.10.2014 passed by the XXI Addl.City Civil and S.J. and Prl. Spl. Judge for CBI cases, Bangalore in SPL.C.C.No.137/2014.
This Criminal Revision Petition coming on for ‘Admission’ this day, the Court made the following:
O R D E R Heard learned counsel for the petitioners and learned counsel for the respondent Nos.1 and 2. Perused the records.
2. The petitioners, who are arrayed as accused Nos.7 and 9 in Spl.C.C.No.137/2014 on the file of XXI Additional City Civil and Sessions Judge and Principal Special Judge for CBI cases, Bangalore, filed an application under Section 307 of Cr.P.C. dated 10.10.2014 in treating respondent No.2/accused No.8 as an approver and recording his statement made by the Court under Section 164 of Cr.P.C.
3. Learned counsel for the petitioners submitted that, the order of the trial Court mainly discloses that the tender of pardon was given to respondent No.2/accused No.8 only for the purpose of extracting materials against accused Nos.3 and 5. However, during the course of statement given by accused No.8, he has implicated not only himself but also accused Nos.7 and 9. Therefore, the said tender of pardon and also collecting materials against accused Nos.7 and 9 is bad-in-law. Therefore, the said order requires to be quashed.
4. The learned counsel for the petitioners’, also relied upon the decision of Apex Court reported in (2013) 15 Supreme Court Cases 222 between Central Bureau of Investigation and Ashok Kumar Aggarwal and another wherein, the Apex Court while considering that the right of co-accused to challenge the order under sections 306, 397, 401 and 482 of Cr.P.C.
has held that, co-accused has no legal right to raise any grievance against order granting pardon under Section 306 of Cr.P.C. However, Court can exercise its revisional powers under Sections 397 and 401 of Cr.P.C. suo-moto examine validity of any such order. High Court in the present case examined validity of order granting pardon under Section 306 by invoking its inherent powers under Section 482 of Cr.P.C. and quashed the order as the same was passed without considering relevant materials.
5. Even accepting the above such observation made by the Apex Court, the co-accused gets absolutely no right of audience before the Court. The Court can utmost treat the petition filed by the petitioner without right of audience as suo-moto revision in order to examine the procedural irregularity or illegality, if any, committed by the Court while granting pardon. Even otherwise, under Section 397 and 401 of Cr.P.C. and even anybody bringing to the notice of the Court, if otherwise the matter comes to the notice of the Court, the Court can suo-moto take action and exercise the powers of revision in order to set right any irregularity or illegality committed by the Sub-ordinate Courts.
6. In this background, let me see, whether any illegality is committed by the learned Sessions Judge in granting tender of pardon to respondent No.2/accused No.8. Even after reading Sections 306 and 307 of Cr.P.C., it is the matter between the accused, who wants to became an approver and it is the statutory power of the Court to grant tender of pardon if the accused complies with the requirements under Sections 306 and 307 of Cr.P.C.
7. Sec.306 of Cr.P.C. contemplates the procedure as to how and under what circumstance, the Court can tender pardon. The Section 306 says, “With a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in or privy to an offence to which this section applies, the Chief Judicial Magistrate or a Metropolitan Magistrate at any stage of the investigation or inquiry into, or the trial of, the offence, and the Magistrate of the first class inquiring into or trying the offence, at any stage of the inquiry or trial, may tender a pardon to such person on condition of his making a full and true disclosure of the whole of the circumstances within his knowledge relating to the offence and to every other person concerned, whether as principal or abettor, in the commission of the offence.”
8. This is the prime condition for the purpose of tendering pardon. Therefore, if the Magistrate is satisfied after recording the statement of such co- accused for the purpose of tendering pardon to the effect that said person has made a full and true disclosure of the whole of the circumstances within his knowledge relating to the offence and to every other persons concerned, whether as principal or abettor in the commission thereof.
9. The Magistrate or the trial Judge can tender pardon by passing an appropriate order under Section 307 of Cr.P.C. In this particular case, as per the order of the trial Court, the Trial Judge has recorded the statement of the co-accused (accused No.8) under Section 164 of Cr.P.C. and in fact, such statement was recorded to certain extent by way of question and answers in order to ascertain the veracity of said witnesses and thereafter recording the entire statement, the trial Court has come to the conclusion that accused No.8 has given true facts of the case pertaining to an offence and all the persons, who are involved in the said case including present petitioners. Again truth or falsity of such statement has to be tested at the time of evidence.
10. The statement also discloses that accused No.8 has inculpated himself and other accused persons. According to his knowledge, he has disclosed that those persons are also involved in commission of the offence. Therefore, there is a compliance of Sec.306 of Cr.P.C. The learned Sessions Judge has written a detailed order wherein after examining the entire statement of witnesses, he has recorded his satisfaction that the accused has given fullest and true factual aspects with regard to the offences. Therefore after satisfaction he passed the impugned order. Therefore under the aforesaid circumstances, I do not find any strong reason to interfere with the said order either under Section 397 or Section 401 or Section 482 of Cr.P.C.
11. It is made clear that under Section164 of Cr.P.C., the statement given by the accused is as good as statement made by the person before the Court. The said statement can only be used for the purpose of contradicting the witness under Section 145 of the Indian Evidence Act, during the course of evidence. For any reason, if the said witness turns hostile before the Court or gives any inconsistent evidence compared to Section 164 of Cr.P.C., it cannot be used by any stretch of imagination as a substantive evidence.
12. The accused/petitioners, if the accused No.8 who will become a prosecution witnesses, are examined before the Court, are or entitle to cross-
examine the said witness. In this background, I do not find any strong reasons to interfere with the petition. As such, petition is devoid of merits and same is liable to be dismissed.
Accordingly petition is dismissed. IA-2/2016 does not survive for consideration as the matter is disposed of on merits.
Sd/-
JUDGE JS