P.C.Mishra vs State(C.B.I) & Anr

3. CBI, on 1.3.1996, laid a trap and the accused, PC Mishra, and his Reader Ravi Bhatt, second Respondent herein, were caught red-handed while demanding and accepting the bribe from the complainant. 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. During the course of investigation, the witnesses had been examined and records scrutinized and it transpired that the co-accused Ravi Bhatt had accepted the bribe money for and on behalf of the Appellant. 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 :

(b) shall, unless he is already on bail, be detained in custody until the termination of the trial.

(a) commit it for trial-

(b) in any other case, make over the case to the Chief Judicial Magistrate who shall try the case himself.”

sheet, for holding the trial.

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.

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.