THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Criminal Revision Case No.984 of 2009 Date:08th October, 2009 Between: Poola Ashwartha Narayana …Petitioner and 1. State of A.P., rep. by the Inspector of Police, ACB Kadapa, rep. by the Special Public Prosecutor, High Court, Hyderabad & Anr. …Respondents *** THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Criminal Revision Case No.984 of 2009 JUDGMENT: This Criminal Revision Case is directed against the order dated 21.01.2009 passed in Crl.M.P.No.829 of 2008 on the file of the Special Judge for SPE & ACB Cases, Nellore, whereby and whereunder the learned Special judge granted pardon to the 2nd respondent herein, who has been arrayed as Accused Officer No.2 in Crime No.09/RCT- TCD/2008 of ACB, Kadapa, by treating him as an approver with a condition that he shall make full and true disclosure of the whole of the circumstances within his knowledge relating to this offence subject to the provisions of Sections 306, 307 and 308 Cr.P.C. and Section 5(2) of the Prevention of Corruption Act, 1988. 2. The petitioner herein is Accused Officer No.1, whereas the 2nd respondent herein is the Accused Officer No.2 in Crime No.09/RCT- TCD/2008 of ACB, Kadapa. The accused officer No.1 was working as Special Deputy Collector, Chitravathi Balancing Reservoir, Unit-II, Pulivendula, Kadapa District and whereas, the accused officer No.2 was working as Attender in the office of Special Deputy Collector, CBR, unit-II, Pulivendula, Kadapa District. A trap came to be laid by the Deputy Superintendent of Police, ACB. As per the trap, a bribe amount of Rs.10,000/- came to be recovered under the cover of panchanama. It is the version of the ACB Authorities that the accused officer No.2 accepted Rs.10,000/- as bribe for release of amounts to Ram Mohan Reddy and passed on the bribe amount to the accused officer No.1. Panchanams were prepared with regard to pre-trap and post-trap. Basing on the panchanams, a case in Crime No.09/RCT- TCD/2008 of ACB, Kadapa, came to be registered. Whileso, accused officer No.2 filed Crl.M.P.No.829 of 2008 on the file of the Special judge for SPE & ACB Cases, Nellore, for grant of pardon and to treat him as an approver. The prosecuting agency did not choose to oppose the application. The learned Special Judge, on considering the material brought on record and on hearing the counsel appearing for the accused officer No.2 and the Special Public Prosecutor appearing for ACB and learned counsel appearing for the accused officer No.1, proceeded to grant pardon to the accused officer No.2 by treating him as an approver, by order dated 21.01.2009. The said order is assailed by the accused officer No.1 in this Criminal Revision Case. 3. Notice before admission came to be ordered on 23.06.2009. In response, the 2nd respondent entered appearance through a counsel. 4. Heard learned counsel appearing for the petitioner, learned Special Public Prosecutor for ACB appearing for the 1st respondent and Sri T.Bali Reddy, learned Senior Counsel appearing for the 2nd respondent. 5. Learned counsel appearing for the petitioner submits that the co- accused is not entitled to move an application under Section 306 Cr.P.C. and only the prosecuting agency which is competent to make such an application and therefore, the very application filed by the 2nd respondent before the Court of Special Judge for SPE & ACB Cases, Nellore, is liable to be dismissed in limini. A further submission has been made that the learned Special Judge has not assigned any valid reasons for granting pardon to the 2nd respondent, who has been arrayed as accused officer No.2 in Crime No.09/RCT-TCD/2008 of ACB, Kadapa. Learned counsel placed reliance on the judgment dated 09.07.2008 passed in Crl.R.C.No.311 of 2008 of this Court in Sri G.Narasimha Rao v. The State of A.P. & Anr. 6. In the said judgment, a single Judge of this Court having noticed that in an application filed seeking pardon the trial Court went in detail touching upon the merits of the case, proceeded to set aside the order of the trial Court and remanded the matter back for fresh consideration. For better appreciation, I may refer relevant potion of the judgment, which reads as hereunder: “I have gone through the order passed by the trial Court. The trial Court went in detail touching upon the merits of the case while passing the order. Therefore, I am of the considered view that the order is likely to cause prejudice to the petitioner/A2 at the time of the trial. Therefore, I am inclined to set aside the impugned order passed by the trial Court. In the result, the order of the Principal Special Judge for SPE & ACB Cases, City Civil Court, Hyderabad in Crl.M.P.No.1368 of 2007 in C.C.No.7 of 2003 is set aside. Since the petitioner is expressing his inclusion to give a statement, he is at liberty to approach the concerned officials of ACB and offer to give a statement and in such case, it is for ACB officials to decide whether there are any circumstances warranting an application to be filed before the Court for tender pardon or not.” 7. Sri T.Bali Reddy, learned Senior Counsel appearing for the 2nd respondent submits that there is no bar for an accomplice to approach the Court diretly and therefore, the trial Court is justified in entertaining the application and granting pardon to the accused officer No.2 treating him as an approver. Learned Senior Counsel placed reliance on the judgment of the Supreme Court in Lt.Commander Pascal Fernandes v. State of Maharashtra & Ors.[1] Learned Senior Counsel also placed reliance on the Common Judgment of this Court passed in Crl.R.C.No.336 of 2008 & Batch (Gangula Suryanarayana Reddy @ Maddelacheruvu Suryanarayana Reddy @ Suri v. The State of A.P. & Anr. & Batch). 8. Indeed the trial Court considered the judgment of the Supreme Court in Lt.Commander Pascal Fernandes’s case (1 supra) and came to the conclusion that the application filed by the 2nd respondent seeking pardon is maintainable. In view of the proposition of law laid down in the above referred case, there cannot be any dispute that the co-accused can approach the Court by making application under Section 306 Cr.P.C. On an application being made under Section 306 Cr.P.C., the learned Magistrate/Judge has to give reasons for tendering pardon to the accomplice. As seen from the order impugned in the revision, the learned Judge has gone into the merits of the case and recorded that the applicant before him, who is accused officer No.2, is innocent of the offence. It indicates that the learned Judge has gone into the merits of the case, which ought not to have done. On this ground the order impugned in the revision is set aside remanding the matter back to the court of the Special Judge for SPE & ACB Cases, Nellore to re-consider the application and pass orders afresh. 9. Accordingly, this Criminal Revision Case is disposed of at the admission stage. ______________________ B.SESHASAYANA REDDY, J. Date:08th October, 2009. Cs [1] AIR 1968 S.C. 594