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Metropolitan Magistrate

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Section 5 (2) and 7 of the Prevention of Corruption Act, & Section 306 & 460 of Cr.P.C. – Granted Pardon – sec.164 Cr.P.C. statement of one of the accused was record – prosecution applied for grant of pardon as the accused by becoming approver filled the links and as his role is negligible one – Magistrate tender pardon – later after the cross examination of approver it is challanged before special court that the pardon could have been granted only by the Special Judge under Section 5(2) of the PC Act and not by the Metropolitan Magistrate, being not a designated Court under the PC Act. It was also contended that the Magistrate did not have any power to grant pardon. – High court and Apex court confirmed the trail court order and dismissed appeal = whether the pardon granted by the Metropolitan Magistrate, Tis Hazari, Delhi, under Section 306 Cr.P.C. to the second Respondent, against whom R.C. No.15(A) 96 DLI dated 29.2.1996 under Section 7 of the Prevention of Corruption Act, 1988 was registered by the Central Bureau of Investigation, is legally sustainable.= Both the accused persons were arrested by the CBI on 1.3.1996 and, during the course of investigation, an application was filed by the co-accused Ravi Bhatt before the Special Judge, CBI, for recording his confessional statement under Section 164 Cr.P.C., which was marked by Special Judge to the Chief Metropolitan Magistrate, who assigned the same to the Metropolitan Magistrate and the statement of second Respondent under Section 164 Cr.P.C. was recorded on 7.8.1996. The CBI, on investigation, noticed that the second Respondent was not a leading accused in the case and it was considered necessary to take him as an approver to prove the various missing links in the chain of circumstantial evidence, which was otherwise not available to the investigating agency. Consequently, the CBI on 24.10.1996 filed an application under Section 306 Cr.P.C. before the Special Judge, Tis Hazari, Delhi for grant of pardon to the second Respondent, Ravi Bhatt. The Special Judge marked that application to the learned Chief Metropolitan Magistrate for the said purpose, who, in turn, marked the same to the Metropolitan Magistrate. 4. The Metropolitan Magistrate examined the application of the CBI and passed an order dated 2.11.1996, in exercise of powers conferred under Section 306 Cr.P.C., holding that it was a fit case where pardon should be granted to the second accused to enable the prosecution to unveil all circumstances of the case and to unearth the truth, stating the following reasons : “Accused Sh. Ravi Bhatt is a privy to the offence. He is not the principal/leading accused in this case. It is not mentioned in the written complaint of the complainant that accused Sh. Ravi Bhatt demanded Rs.4000/- from him. The role played by him, however, is minimal. Considering that the matter relates to corruption in the Government Department and no direct independent evidence is available, I think it appropriate to obtain evidence of the accused, Sh. Ravi Bhatt in order to prove the various missing links in the chain of the circumstantial evidence which are not otherwise available to the investigating agency. The offence mentioned in the FIR is triable exclusively by the Court of a Special Judge appointed under the Criminal Law Amendment Act, 1952 (46 of 1952).” The above mentioned order was not challenged and has attained finality.= The Appellant moved an application under the proviso to Section 234 Cr.P.C. for the first time, before the Special Judge on 24.7.2008, questioning the pardon granted to second Respondent by the learned Metropolitan Magistrate on 2.11.1996 in exercise of powers conferred under Section 306 Cr.P.C. It was contended that the pardon could have been granted only by the Special Judge under Section 5(2) of the PC Act and not by the Metropolitan Magistrate, being not a designated Court under the PC Act. It was also contended that the Magistrate did not have any power to grant pardon. The Special Judge rejected the application vide order dated 31.10.2008 holding that the Metropolitan Magistrate had the power to grant pardon during investigation under Section 306 Cr.P.C. and even if the Magistrate was not empowered by law to tender a pardon and the order was passed in good faith, then such an order is protected under Section 460 Cr.P.C. Aggrieved by the same, the Appellant filed Criminal Revision being Crl. M.C. No.3514 of 2008 before the High Court of Delhi, which was dismissed by the High Court vide its order dated 6.11.2008, against which this appeal has been preferred.= In Bangaru Laxman (supra), this Court has stated that the power of Special Judge to grant pardon is an unfettered power and held that, while trying the offences, the Special Judge has dual power of a Special Judge as well as that of a Magistrate. This Court, while interpreting Section 5, then went on to say as follows :- 40. Thus, on a harmonious reading of Section 5(2) of the PC Act with the provisions of Section 306, specially Section 306(2)(a) of the Code and Section 26 of the PC Act, this Court is of the opinion that the Special Judge under the PC Act, while trying offences, has the dual power of the Sessions Judge as well as that of a Magistrate. Such a Special Judge conducts the proceedings under the court both prior to the filing of charge-sheet as well as after the filing of charge- sheet, for holding the trial. 41. ………………. Since this Court has already held that the Special Court is clothed with the magisterial power of remand, thus in the absence of a contrary provision, this Court cannot hold that power to grant pardon at the stage of investigation can be denied to the Special Court. 42. In view of the discussion made above, this Court is of the opinion that the power of granting pardon, prior to the filing of the charge- sheet, is within the domain of judicial discretion of the Special Judge before whom such a prayer is made, as in the instant case by the prosecution.” 14. Bangaru Laxman (supra), therefore, emphasizes the concurrent jurisdiction of the Special Judge as well as the Chief Judicial Magistrate or Metropolitan Magistrate to grant pardon during investigation, but does not say that the Metropolitan Magistrate has no power under Section 306 Cr.P.C. to grant pardon during the investigation i.e. before filing of charge-sheet before the Special Judge. During investigation, in our view, both the Special Judge as well as the Magistrate acting under Section 306 Cr.P.C. have concurrent jurisdiction to entertain application of pardon, which facilitates proper investigation of the crime. But, as already indicated, after the committal of the case, the pardon granted by the Magistrate is not a curable irregularity. 15. We may, in this regard, refer to Section 460 Cr.P.C. which refers to nine kinds of crurable irregularities, provided they are caused erroneously and in good faith. Irregularity caused while granting pardon is dealt with in Section 460(g) Cr.P.C. The relevant part of that Section reads as follows :- “460. Irregularities which do not vitiate proceedings. If any Magistrate not empowered by law to do any of the following things, namely:- (g) to tender a pardon under section 306; erroneously in good faith does that thing, his proceedings shall not be set aside merely on the ground of his not being so empowered.” Section 461 Cr.P.C. speaks of irregularities which vitiate proceedings. 16. We have already held, both the Magistrate as well as the Special Judge has concurrent jurisdiction in granting pardon under Section 306 Cr.P.C. while the investigation is going on. But, in a case, where the Magistrate has exercised his jurisdiction under Section 306 Cr.P.C. even after the appointment of a Special Judge under the PC Act and has passed an order granting pardon, the same is only a curable irregularity, which will not vitiate the proceedings, provided the order is passed in good faith. In fact, in the instant case, the Special Judge himself has referred the application to Chief Metropolitan Magistrate/Metropolitan Magistrate to deal with the same since the case was under investigation. In such circumstances, we find no error in Special Judge directing the Chief Metropolitan Magistrate or the Metropolitan Magistrate to pass appropriate orders on the application of CBI in granting pardon to second Respondent so as to facilitate the investigation. 17. Appeal lacks merit and the same is dismissed. 2014 (March . Part) judis.nic.in/supremecourt/filename=41345 K.S. RADHAKRISHNAN, VIKRAMAJIT SEN

Section 5 (2) and 7 of the  Prevention  of  Corruption  Act, & Section 306  & 460 of Cr.P.C. – Granted Pardon – sec.164 Cr.P.C. statement of one of the accused was record – prosecution applied for grant of pardon as the accused by becoming approver filled the links and as his role is negligible one – Magistrate … Continue reading

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