1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY: NAGPUR BENCH: NAGPUR CRIMINAL APPLICATION NO.2175 OF 2006 APPLICANT: Santosh Bhimrao Rane, aged 26 years, occupation : Labourer, resident of Khalashi, Tahsil Daryapur, District : Amravati. versus NON APPLICANTS: 1] The State of Maharashtra, through its P.S.O. Rajapeth, Amravati 2] Rahul Janardhan Kankale, aged about 21 years, r/o Kalasi, tahsil Daryapur, District : Amravati, presently at Central Jail, Amravati. Shri A.S. Mardikar, Advocate for applicant, Shri Mirza, A.P.P. for respondent no.1 Shri N.W.Sambre, Advocate for respondent no.2. ===================================== CORAM: S.R. DONGAONKAR, J. DATE:14 /11/2006 ===================================== ORDER Heard counsel for the parties. Rule. Rule made returnable forthwith. Heard finally with the consent of the parties. 1] This is an application under section 482 of Criminal Procedure Code. Facts leading to the filing of the present application may be stated thus. The 2 applicant and the respondent no.2 are accused no.1 and 2 respectively, facing trial for the offences punishable under section 302, 307 read with section 34 of I.P.C. arising out of crime no.327 of 2004 of Police Station Daryapur, District : Amravati in Sessions Trial No.58/2005 pending before the 2nd Ad-hoc Additional Sessions Judge, Amravati. 2] Prosecution case is that on the night between 8th October and 9th October, 2004, the applicant [accused no.1] and Rahul- respondent no.2 [accused no.2] had gone to the house of one Madhukar Pathare [deceased] and stayed there. It is alleged that at about 2.00 a.m. Madhukar and his wife and Priti were assaulted by deadly weapons. In the attack Madhukar died and his wife Priti was injured. It is alleged that when the neighbourers had come, it was told that the dacoiets had attacked. The offence was registered on the report of the brother of Madhukar. It was initially registered against the unknown persons, however, later on the offence came to be registered against these accused alleging that both the accused had assaulted the said Madhukar and his wife – Priti by deadly weapon and in the said incident Madhukar had died. 3] When the trial commenced, the applicant i.e. accused no.2 applied for tendering pardon with an assurance to disclose all the things of the incident truly before the learned 2nd Ad-hoc Additional Sessions Judge, Amravati. The prosecution gave no objection to tender pardon. By order dated 27.3.2006, learned 2nd Ad-hoc Additional Sessions Judge, Amravati granted pardon to the present applicant i. e. accused no.2 on the condition that he would make full and true disclosure of whole of the situation within his knowledge relating to the offence and relating to every other persons 3 concerned with the offence. 4] The applicant – accused no.1 in the said Sessions Trial is taking exception to this order saying that the same is abuse of process of law and to secure the ends of justice, that order of pardon to respondent no.2 i.e. accused no.2 should be set aside. 5] Learned counsel for the applicant has mainly contended that the accused no.2 i.e. respondent no.2 had first made exculpatory statement and later on made incriminatory statement, incriminating himself for the instant offence. The second statement was recorded on 8.11.2005 on the application and therefore, the tender of pardon to him was not legal. He has further contended that to the prosecution, in the present case, the evidence of eye witness i.e. injured Priti is available and when direct evidence is available to the prosecution, there was no necessity to grant pardon to accused no.2 i.e. respondent no.2 as it would be unjust escaping of an offender. According to the learned counsel, the stand of the prosecution that the prosecution case can not be established without the aid of the evidence of accused no.2 can not be accepted. According to him; the evidence of recovery of instrument of offence is also available to the prosecution and therefore tender of pardon to accused no.2 is not at all justified. He has also contended that in any case, the learned trial Judge should not have directed the C.J.M. to record the statement of the accused no.2 as the said power was exercised by him under section 307 of Cr.P.C. Further, according to him, as the statement was recorded by the C.J.M. it should have been subjected to the cross examination by the present applicant i.e. accused no.1 under section 306(4) of Cr.P.C. and then only question of granting pardon should have been considered by the 4 learned trial Judge. He has relied on certain authorities in support of his contention which I would discuss in the latter part of this order. 6] As against this, the learned counsel for the State Shri Mirza has submitted that although there is evidence of eye witness available in this case, still for procuring better evidence, tender of pardon to the accused no.2 is necessary as her evidence needs to be corroborated by some other evidence. He has also contended that even though some other evidence is available on record, still the tender of pardon to the accused no.2 is justified in as much as there is privy of the offence in this case. As regards the opportunity of cross examination, he submitted that this opportunity can be given; when his evidence is tendered & recorded in the trial in the sessions court. Therefore, according to him, the order passed by the trial court to grant pardon to accused – respondent no.2 is correct and needs to be maintained. 7] Learned counsel for the respondent no.2 Shri N.W. Sambre has supported the order of the lower court. He has submitted that the applicant being co-accused and main accused has no locus to challenge the order of granting pardon to the other accused. According to him, on merits, the order of the learned trial court is correct and calls for no interference by this court. He has also relied on certain authorities which I would consider at the appropriate place in the order. 8] Before considering the rival contentions of the parties, brief reference to the reasons recorded by the learned Ad—hoc Additional Sessions Judge, Amravati for passing the impugned order needs to be made. Learned 5 Ad-hoc Additional Sessions Judge, has elaborately dealt with the question of granting of pardon to the accused no.2 [i.e. respondent no.2]. He has recorded in his order as to how the exculpatory statement was given by the accused no.2 earlier and later on he gave fresh statement incriminating himself. It is recorded by him that both these statements were sent to him. He has observed that on perusal of the statement of Rahul Kankale [accused no.2] recorded by the Chief Judicial Magistrate it appears that he had narrated the entire incident and the part played by him in commission of the offence and he stated before the Chief Judicial Magistrate that on the say of the accused Santosh Rane [accused no.1] he had given single blow of knife on Priti and he had hidden the weapon of offence. In his order, he has clearly held that as per prosecution, it was necessary to obtain evidence from accused no.2 – Rahul Kankale, otherwise it would be impossible to establish the guilt of accused no.1 [Santosh Rane]. In latter part of his order he has observed that the wife of the deceased Madhukar – Priti is fortunately survived and she is the only witness to the incident. According to him, the submission of the state is that in order to bring complete truth before the court, of the involvement of accused no.1 is necessary from accused no.2 in view of the fact that taking of huge loan by accused no.1 from Madhukar Pathare [deceased], Madhukar's insistence of loan etc. facts can be proved only when accused no.2 becomes ready for adducing his evidence by becoming approver. He has further recorded that considering the circumstances and facts of the case, in order to book and punish the main accused in this grave offence; pardon is necessary to be tendered to the accused no.2 who is directly or indirectly concerned in or privy to the offence. Thus learned Trial Judge is of the opinion that extracting of material evidence from accused no.2 is necessary for proving commission of the 6 offence against the main accused [accused no.1] and therefore, he has passed the impugned order. 9] Further, before the considering the merits of the order, the prosecution case as summarised by the trial Judge needs to be seen. In paragraph 3 of the impugned order he has stated that accused no.1 Santosh Rane is brother in law of Raosaheb Pathare, who is the brother of deceased Madhukar. Accused no.1 Santosh Rane obtained huge amount as a loan from deceased Madhukar Pathare. As Madhukar Pathare insisted him for making repayment of said loan amount, accused Santosh Rane had gone to the house of deceased Madhukar along with Rahul Kankale with intent to commit his murder. Accused no.1 Santosh Rane had given alluerment to accused Rahul Kankale that he will give him Rs.25000/- on giving assistance to commit murder of Madhukar Pathare and in the night of incident accused Santosh Rane assaulted Madhukar Pathare by causing injury on his throat by means of dagger, he caused his death. Accused Rahul Kankale, gave blow of knife on the neck of Priti and as she raised shouts accused Santosh Rane caused injuries on her neck by dagger. Accused Santosh Rane and Rahul Kankale also caused injuries on their person to make a defence that decoits came to the house and assaulted to deceased Madhukar and his wife and to both the accused also. Later on injured Priti made statement before the police and narrated the fact that both the accused assaulted to her husband and herself, therefore, police arrested both the accused. 10] It is obvious that in such circumstances some of the material facts would be within the knowledge of the accused no.2 only and therefore, his disclosure as witness as to his and accused no.1's involvement in the 7 commission of the instant offence would be material. 11] With this background it is necessary to assess the contentions raised by the rival parties. 12] Learned counsel for the respondent no.2 has contended that the applicant being accused no.1 and co-accused has no locus to challenge the impugned order. He has relied on some decisions. Whereas the learned counsel for the applicant has submitted that as the accused no.1 is going to be prejudiced by the impugned order, he has locus to challenge that order. He has also pressed into service some authorities. 13] Learned counsel for the respondent no.2 has relied mainly on the observations in 2003 Cr.L.J. 3830 Raj Ambarisen @ Ambarish Sen ..vs.. The State of West Bengal , wherein it has been observed “18- To my mind the above findings are full of force and they held good to the facts and circumstances of the present case also. Since the impugned order of the ld. Sessions Judge is in the nature of an interlocutory order without the rights and contentions of the parties being conclusively decided by virtue of the grant of tender of pardon and since the evidence of such a witness, if at all, given during the trial will remain open to question and challenge, it cannot be said that the order has reached finality so as to form the subject-matter of revision at this stage. 19- The same principle was enunciated in a much earlier judgment of a single Judge of Madras High Court reported in AIR 1948 Madras 232:(1948)(49) Cri.L.J.451). (In re Akbar Sheriff) 8 wherein it was held as follows: “I do not think that the act of the Magistrate under Section 337, Cr.P.C. (Old), namely, tendering pardon to a person is revisable by this Court. No authority has been placed before me to show that it is revisable. If there are any irregularities in the grant of the pardon they can be urged by the accused at the trial. The petitions are dismissed.” Although this para is relied by the learned counsel for the respondent no.2, paragraph 20 of this decision also needs to be taken into consideration which reads thus: “20- It is to be noted that the present petition has been filed under Section 401 read with Section 482 of the Code. I have already pointed out above that Section 401, Cr.P.C. is not independent of Section 397 and it has got to be read together with Section 397. Cr.P.C. Since under Section 397(2) Cr.P.C. a revisional application against an interlocutory order is not maintainable, obviously Section 401 alone bereft of Section 397 will be of no value and the petition under that Section cannot be legally maintainable. So far as Section 482 is concerned the principles with have been settled vide Madhulimaye's case reported in AIR 1978 SC 47 : (1978 Cri.L.J.165) for its application are as follows. First the power under this Section is not to be resorted to if there is specific provision in the Code for the redress of the grievance of the aggrieved party; secondly, it may be exercised very sparingly to prevent abuse of the process of any Court or otherwise to secure the ends of justice; and third;y, it should not be exercised as against the express bar of law engrafted 9 in any other provision of the Code. It has been repeatedly observed by the apex Court as well as the High Courts of this country that inherent powers are meant to be exercised with circumspection when there are reason to believe that process of law is being misused to harass a citizen and it shall not be exercised when there is remedy already available or for doubtful or trivial matters or to help those who sleep over their rights in preferring appeals etc. or at least resort after failure in available remedies under the specific provision of the Code. So it is an accepted position that this special power of the court is to be invoked or exercised mainly to prevent the abuse of process of any Court or to prevent any miscarriage of justice. When a pardon is granted to one of the accused persons, in a criminal case on the basis of a petition filed by that person under the clear provisions of the Code it cannot be said that there has been any abuse of the process of the court or any miscarriage or failure of justice has taken place. In such a case exercise of the inherent powers of the High Court will be unwarranted and uncalled for. The fact that such pardon is being granted to a juvenile delinquent does not make any difference in view of my foregoing discussion and the finding that by allowing such a prayer of the juvenile delinquent concerned no prejudice is being caused to his interest. Hence, the petition invoking the inherent power of this Court under Section 482 challenging such an order of the Sessions Court granting pardon to a juvenile accused is not found to be maintainable in law.” 14] Learned counsel for the respondent no.2 has further relied on the 10 decision reported in 2002 Cri.L.J. 2375 [Senthamarai ..vs.. S. Krushnaraj and others], wherein it has been observed in paragraph 16 and 17 as under: “16- From these principles laid down in various decisions, it is clear that the other co-accused cannot be competent enough to tell the Court that the statement of the person concerned is false and therefore, the pardon cannot be granted. Therefore, the contention with regard to the different stand taken by accomplice may not be deserve acceptance. 17- Similarly, the accused cannot question the stage at which the pardon has been granted. As a matter of fact, S.306, Cr.P.C. would provide that the Chief Judicial Magistrate or any Magistrate of the First class inquiring into or trying the offence may tender pardon at any stage of the inquiry or trial.” 15] As against this the learned counsel for the applicant has relied on the judgment of the Apex court in AIR 1994 SC 2420 [Suresh Chandra Bahri ..vs.. State of Bihar (with) Gurbachan Singh ..vs..State of Bihar (and) Raj Pal Sharma ..vs.. State of Bihar] to contend that the co-accused can challenge the tendering of pardon to the other accused. He has also relied on the observations of this court in 1985 Cri.L.J.1818 [Maosi Nainsi Jain and others ..vs.. State of Maharashtra ], wherein it has been observed thus: “7- It is apparent from these observations that an order which affects the rights of the parties or even any particular aspect of the trial, such order cannot be termed as “interlocutory order”. In the case at hand the application (Exh.15) was moved by the prosecution to secure the evidence of approver by tendering pardon and on its rejection by the trial Court, in my opinion, not only the right of the 11 prosecution to secure evidence is affected, but the oder also affects the particular aspect of the trial. In this view of the matter, I would prefer to follow the decision of this Court and hold that the order passed under S.306 is not an interlocutory order and the revision against such an order is, therefore, maintainable. With due respect, I cannot agree with the view expressed either in the case of Krishna Lal Gulati (1976 Cri.L.J.1825) (All) or Public Prosecutor, High Court of Andhra Pradesh [1977 Cri.L.J.(NOC) 174(And Pra) (cited supra), even though both the cases are directly on the point.” 16] Learned counsel for the respondent no.2 in this context has also referred to the judgments in AIR 1969 Delhi 21 [M.M. Kochar ..vs.. The State ] and 1976 Cri.L.J. 1825 [Krishna Lal Gulati ..vs.. The State]. On perusal of these authorities, it does appear that the locus of the co-accused to challenge the order of tender of pardon to the other accused, is considered on the basis as to whether the order of tender of pardon is revisable or not. As there appears a clear judgment of this court to which I respectfully agree; on the point; it is necessary to hold that as the order of tender of pardon, decides the right of the parties, it would be revisable as per provisions of law. In my opinion, co-accused would be able to challenge the same, if it is not in accordance with law, only on the legal grounds and not on merits on facts or on the ground that that order will be causing prejudice to him as in every case when one accused is granted pardon, it is bound to cause prejudice to the other accused and if on the ground of such prejudice, an order of tender of pardon is considered liable to be set aside, then the provisions of section 306 and 307 would be redundant. The object of these provisions is to bring such evidence on record, which can not be otherwise brought on record by 12 the prosecution and the result in that case would likely to be unjust acquittals of the accused in grave and serious offences. It is obvious that even when the trial is concluded, the accused can take exception to the order of grant of tender of pardon to the other accused and if accused is convicted on the basis of such evidence, he can challenge it in appeals. When such objection can be taken, by the other co-accused, at the belated stage, there can not be any difficulty in concluding that he can take such objections at any stage in the trial also and consequently in the further proceedings if he is otherwise legally entitled to. 17] In 2003 Cr.L.J. 3830 Raj Ambarisen @ Ambarish Sen ..vs.. The State of West Bengal ] it has been held that the order of tender of pardon being intralocutary one, no revision is maintainable against that order so also for the reasons mentioned vide paragraph 18, 19 and 20 quoted above, application under section 482 Criminal Procedure Code,would also not be maintainable. As the judgment of this court is available on the issue and I am in agreement with it, I am of the opinion that these proceedings under section 482 of Criminal Procedure Code considering the nature and object of the said provisions; such application would be maintainable. The challenge by the co- accused in such cases can only be on limited grounds i.e. only legal and procedural grounds and not otherwise. In this view of the matter I need not refer other authorities referred by learned counsel of parties. 18] Therefore, I am of the opinion that this application being maintainable needs to be decided on merits. 19] Learned counsel for the applicant has contended that in the present 13 case, there is evidence of eye witness as well as the evidence of recovery of the weapon of the offence; available for prosecution and therefore, the pardon to the accused no.2. He relied mainly on the observations of the Himachal Pradesh High Court in AIR 1952 HP 57[Ram Chand and others ..vs.. The State] wherein it has been observed: “It is only in exceptional cases that the prosecution should move, or the Magistrate exercise powers, for tendering pardon to an accomplice under section 337 Cr.P.C. One such circumstance may be that it is otherwise not possible to bring the guilt home to the other accused. Where besides the approver, thee are as many as six eye- witnesses to the crime who have given evidence in the case, it cannot be said that direct evidence is lacking in the case and, therefore, the Magistrate cannot be said to have exercised a sound discretion in tendering pardon to one of the accused.” 20] He has also relied on the judgment of Mysore High Court reported in 1963(1) Cri.L.J. 547[Kashinath Krishna Bapat ..vs.. The State of Mysore and another wherein the order of tender of pardon was not considered to be valid when there were eye witnesses to the incident. 21] In the present case, although there is one eye witness to the incident, as it is apparent from consideration of the time of incident i.e. midnight time and the manner and the circumstances in which the offence was committed, it is likely that she may not be able to give full account of the incident. Therefore, say of the prosecution that in order to have complete picture of the incident on record the tender of pardon to the accused no. 2 is necessary and can not be said to be without any basis. 14 22] This takes me to consider the question of availability of other evidence on record which is in the shape of recovery of the weapon of the offence. May be that evidence is available, but that would be a week link of the evidence to bring home the offence of the accused, particularly for offence under section 302 I.P.C. against accused no.1. The prosecution case, as summarised by the learned Trial Judge does show that there is necessity of the evidence of the accused no.2 on record, for bringing home guilt of the accused no.1, who is the main accused in the case. It can not be lost sight of the fact that the case made out by the defence appears to be of dacoits attacking the deceased and his wife Priti. The prosecution case is that there was deliberate attempt of accused no.1 to the house of deceased and kill him with the help of accused no.2. In these circumstances, it goes without saying that if the evidence of accused no.2 is available on record, it would be in the interest of justice and with this very object; power under section 306 and 307 can be invoked. 23] Learned counsel for the applicant has contended that the applicant accused no.1 was not given opportunity to cross examine the accused no.2 when his statement was recorded by the learned Chief Judicial Magistrate. 24] According to him, this was