STATE THROUGH CBI, CHENNAI versus V. ARUL KUMAR
[2016] 2 S.C.R. 486, Supreme Court of India, 2016
Outcome: Appeal(s) allowed (Granted)
Segment: Ratio
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[2016] 2 S.C.R. 486 
STATE THROUGH CBI, CHENNAI 
v. 
V. ARUL KUMAR 
(Criminal Appeal No. 499of2016) 
MAY 13, 2016 
[A. K. SIKRI AND R. K. AGRAWAL, JJ.] 
Code of Criminal Procedure, 1973 - s.306 - Tender of pardon 
to approver - Charge sheet filed against respondent and others 
before the Magislrate under Penal Code and Prevenlion of 
Corruption Act - Five individuals taken as approvers after recording 
!heir confessional stalements - Applicalion by prosecutor uls. 306 
for gra/1/ of pardo11 - Grant of pardo11 by Magistrale and thereafter 
committal of case to Special Judge - Special Judge upheld !he order 
of granl of pardon - However, High Courl held thal the Special 
Judge is empowered to grant tender of pardon and such order passed 
by !he Magistrate is no/ lawful - On appeal, held: In cases where 
charge sheet is filed before /he Magistrale, 1he Magislrate is duly 
empowered lo gra11t tender of pardo11 uls. 306 even i11 respect of 
the cases which are friable by the Sessio11 Courl or by the Special 
Judge for !he offences under the PC Act - Preve11tion of Corruption 
Act, /988. 
Allowing the appeal, the Court 
HELD: 1.1 Sub-section (1) of Section 306 of the Code of 
Criminal Procedure, 1973 very categorically and unambiguously 
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mentions Metropolitan Magistrate as one of the Judicial Officers 
who can exercise the power of tender of pardon to accomplice. 
Thus, Metropolitan Magistrate is specifically given such a power 
under Section 306 of the Code.
Suh-section (2) of Section 306 
makes it clear that this Section applies even to those offences 
which are triable exclusively by the Court of Session or hy the 
G Court of a Special Judge appointed under the Criminal Law 
Amendment Act, 1952. Thus, even where the cases are triable 
by a Special Jildge, the Metropolitan Magistrate is authorised to 
grant tender of pardon. Sub-section (5) makes the position beyond 
any pale of doubt, that even when an offence is triable by a Session 
H Judge, the Magistrate has the requisite power to take cognizance 
486
STATE THROUGH CBI, CHENNAI v. Y. ARUL KUMAR 
and grant tender of pardon and, thereafter, commit the case to 
the Special Judge for trial. Section 307 of the Code restricts the 
power to grant tender of pardon by conferring it in the hands of 
the Court to which the commitment is made, only after the 
commitment of a case. This provision, also lends support to the 
position taken by the appellant, as it makes it clear that after the 
committal of the case, it is only that Court to which the 
commitment is made has the power to tender a pardon, thereby 
implying that before the commitment of case, Magistrate is duly 
empowered. [Para 14) [496-E-H; 497-A-B] 
1.2 On a plain reading of Section 306 in conjunction with 
Section 307 of the Code, it becomes manifest that Magistrate is 
duly empowered to grant tender of pardon even in respect of the 
cases which are triable by the Session Court or by Special Judge. 
[Para 15] [497-C] 
P.C. Mishra v. State (CBI) and Another 2014 (4) SCR 
183 : (2014) 14 sec 629 - relied on. 
1.3 Sub-section (1) of Section 5, while empowering a Special 
Judge to take cognizance of offence without the accused being 
conimitted· to him for trial, only has the effect of waiving the 
otherwise mandatory requirement of Section 193 of the Code. 
Section 193 stipulates that the Court of Session cannot take 
cognizance of any offence as a Court of original jurisdiction unless 
the case has been committed to it by a Magistrate under the 
Code. Thus, embargo of
Section 193 of the Code. has been lifted. 
It, however, nowhere provides that the cognizance cannot be 
taken by the Magistrate at all. There is, thus, an option given to 
the Special Judge to straightway take cognizance of the offences 
and not to have the committal route through a Magistrate. 
However, normal procedure prescribed under Section 190 of the 
Code empowering the Magistrate to take cognizance of such 
offences, though triable by the Court of Session, is not. given a 
go-bye. Both the alternatives are available. In those cases where 
chargesheet is filed before the Magistrate, he will have to commit 
it to the Special Judge. In this situation, the provisions of Section 
306 of the Code would be applicable and the Magistrate would 
be empowered to exercise the power under the said provision. 
In contrast, in those cases where Special Judge takes cognizance 
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A of offence directly, as he is authorised to do so in view of Section 
5(2) of PC Act, Section 306 of the Code would get bypassed and 
as the Special Judge has taken cognizance, it is Section 307 which 
would become applicable. Section 5(2) of PC Act makes this 
position clear by prescribing that it is the Special Judge who would 
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exercise his powers to tender of pardon as can clearly be spelled 
out by the language employed in that provision. Section 5(2) is to 
be read in conjunction with Section 5(1). Once the proceedings 
are committed to the Court of Session, it is that court only to 
which commitment is made can grant pardon to the approver. 
[Para 17] [500-E-H; 501-A-C) 
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1.4 Section 460 of the Code treats some of the acts of the 
Magistrate, specified in clauses (a) to (i) as 'irregularities'. These 
are treated as irregularities even when the Magistrate is not 
'empowered by law to do' those acts. Tendering a pardon under 
Section 306 of the Code is included in those acts of 
D "irregularities". Therefore, even if it is presumed that the 
Magistrate was not empowered (though held otherwise), the order 
passed by the Magistrate is saved by s. 460(g). [Para 20] [501-
H; 502-A-B] 
1.5 The High Court formulated wrong question for 
E consideration. The question was not as to whether Special Judge 
is competent to tender of pardon. The question was as to whether 
Magistrate rightly passed the order of tender of pardon.
The High 
Court took circuitous route by answering that Special Judge was 
competent and from that concluded that Magistrate was not 
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competent. The impugned judgment of the High Court does not 
stand legal scrutiny and is set aside. [Paras 21-231 [502-H; 503-
A-C] 
Rajendra Singh v. Slate of Rajasthan RLW 2003 (3) 
Raj. 1865 - disapproved. 
Bangaru Laxman v. Slale (lhrough CBI) and Ano/her 
G 
2011 (13) SCR 268:(2012) 1 SCC 500; State of HP. v. 
Surinder Mohan and Others 2000 (1) SCR 659:(2000) 
2 SCC 396; A. Devendran 1( State of Tamil Nadu 1997 
(4) Suppl. SCR 591:(1997) 11 SCC 720 - referred to. 
H 2011 (13) SCR 268 
Case Law Reference 
referred to. 
Para4
STATE THROUGH CBI, CHENNAI v. V. ARUL KUMAR 
489 
2014 (4) SCR 183 
relied on. 
Para7 
2000 (1) SCR 659 
referred to. 
Para 7 
RLW 2003 (3) Raj. 1865 
disapproved. 
Para 11 
1997 (4) Suppl. SCR 591 
referred to. 
Para 12 
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal 
No. 499 of20 I 6 
From the Judgment and Order dated 05.03.2013 in Criminal 
Revision Case No. 1244 of2012 passed by the High Court of Madras 
Neeraj K. Kaul, ASG, Samar S. Kachwalia, Raghavendra M. Bajaj, 
B. V. Balaram Das, Advs. for the Appellant. 
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R. Basant, Sr. Adv., Anish R. Shah, KarthikAshok, Abinash Kumar c 
Mishra, Advs. for the Respondents. 
The Judgment of the Court was delivered by 
A. K. SIKRI, J. I. Leave granted. 
2. The brief facts leading to the filing of the present appeal by the 
State, challenging the correctness and legality of order dated 05 .03.2013 
passed by High Court of Madras, are as follows: 
A case was registered on 31.01.2004 against the respondent 
herein who was then Regional Chief of Housing Urban Development 
Corporation Ltd., Chennai, along with other co-accused. FIR was 
submitted to the Principal Special Judge, CBI on the allegation thatthe 
respondent herein has dishonestly sanctioned 64 loans which were 
processed by A-2 to various individuals who sought loans for purchase 
of plots developed by A-3 (firm) knowing fully well thatA-3 was not a 
reputed promoter under the HUDCO Niwas Scheme. It was further 
alleged that pursuant to a criminal conspiracy, the
respondent sanctioned 
loans for inflated amounts causing wrongful loss ofRs.21,07,546.50 to 
HUDCO. After completion of inquiry, a chargesheet was filed against 
the respondent and 15 others on 30.01.2006 under Section 120-B read 
with Sections 420, 467, 468, 471 of the Indian Penal Code (for short the 
'!PC') and Section 13(2) read with Section 13(1) of the Prevention of 
Corruption Act (for short the 'PC Act'). 
3. As per the appellant, during the course of investigation, five 
individuals were taken as approvers after recording their confessional 
statements. Accordingly, an application was filed by the Prosecutor 
under Section 306 of the Criminal Procedure Code (for short the 'Code') 
for grant of pardon. This application was entertained by the Metropolitan 
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Magistrate who passed the orders dated 30.01.2006 whereby he granted 
pardon to those five approvers. 
4. Since the case is triable by the Special Judge under the provisions 
of PC Act, who is of the rank of Sessions Judge, the Metropolitan 
Magistrate committed the case to the Special Judge. After the committal, 
the Special Judge framed charges against the respondent herein (who is 
arrayed as A-1) as well as other accused persons i.e. A-2 to A-15. 
These accused persons pleaded not guilty. Much thereafter, the 
respondent and two accused persons (A-I to A-3) challenged the order 
of grant of tender of pardon. This challenge was repelled by the trial 
courtvide orders dated 30.08.2012 resulting in dismissing the application 
of the said accused persons. It was held that Section 306 of the Code 
does not specifically state that only the Court which inquires into or tries 
the case should grant tender of pardon and that the perusal of records 
. shows. that the evidence has been recorded exhaustively in the 
questionnaire form in accordance with Section 146 of the Indian Evidence 
Act. The Sessions Judge also held that the judgment of this Court in 
Bangaru Laxman v. Stme (through CBI) and Another', that was 
cited by the respondent herein was distinguishable on facts and hence 
· not applicable to the present case and that the challenge had been filed 
after a lapse of six years with the object of
protracting the proceedings. 
5. Feeling aggrieved by the said order, the respondent herein filed 
Criminal Miscellaneous Revision under Section 397 read with Section 
40 I of the Code, in the High Court. The primary contention raised by 
the respondent was that the Metropolitan Magistrate had no authority, 
poweror jurisdiction to entertain application for grant of pardon and it is 
only the Special Judge who could entertain such an application. The 
High Court vide its impugned judgment has accepted this plea of the 
respondent thereby allowing the criminal revision preferred by the 
respondent. In the opinion of the High Court, it is the Special Judge who 
will have the powers ofa Magistrate, though the authority mentioned in 
Section 306(1) of the Code includes Magistrate. On that basis, it is held 
that it is only the Special Judge who is empowered to grant tender of 
pardon and such an order passed by Metropolitan Magistrate is not lawful. 
As a consequence, all further proceedings held subsequent to the tender 
of pardon by Metropolitan Magistrate were struck off with direction to 
the appellant herein to initiate fresh action to get tender of pardon in 
accordance with law. 
'(2012) I SCC500
STATE THROUGH CBI, CHENNAI v. V. ARUL KUMAR 
[A. K. SIKRI, 1.1 
(). The question, therefore, that falls for consideration is as to 
whether the Magistrate has power to grant tender of pardon under Section 
306 of the Code or such powers are to be necessarily exercised only by 
the Special Judge having regard to the provisions of the PC Act. 
7 .. Mr. Neeraj Kishan Kaul, learned ASG appearing for the State/ 
appellant, submitted that Section 306(1) of the Code confers such a 
power upon the Metropolitan Magistrate in no uncertain terms and this 
issue stands authoritatively concluded by this Court in the case of P.C. 
Mishra v. State (CBI) and Another'. His second contention, in the 
alternative and without prejudice to the aforesaid contention, was that 
the High Court failed to take into consideration the provisions of Section 
460(g) of the Code which stipulate that such an irregularity, if at all, 
would not vitiate the proceedings. He, thus, argued that in any case 
tender of pardon bythe Metropolitan Magistrate was an irregularity and 
the High Court could not have struck off the proceedings conducted 
post tender of pardon. He also referred and relied upon the judgment of 
this Court in the case of State of H.P. v. Surinder Mohan and Others', 
for the proposition that at the time of recording of approvers evidence 
by Magistrate at pre-committal stage i.e. at the time of investigation or 
inquiry for offence triable by Sessions Court, accused persons have no 
right to
cross examine the approver. 
8. The aforesaid arguments were countered by Mr. Basant, learned 
senior counsel, appearing for the respondent. He submitted that power 
to grant pardon is an important judicial power which the Court is to grant 
in exercise ofjudjcial function and while exercising such a power, Court 
is not discharging administrative function which would be the case, for 
example, when the Magistrate records statement of a person under 
Section 164 of the Code. His submission was that on this touchstone, it 
was imperative that such a power is exercised only by the Judge 
specificaily authorised in this behalfand ifthe matter is dealt with by a 
Judge who is lower in rank, the order passed by him would be without 
jurisdiction. Taking this argument on the next level, he further submitted 
that Section 306 of the Code had to be read along with Sections 307 and 
308 thereof in order to understand the scheme of grant of pardon to an 
accomplice. His contention was that Section 3 07 grants such power, 
after commitment of a case, to that Court to which the commitment is 
made. Proceeding with this line of submission, he paraphrased his 
2 (2014114 sec 629 
' (2000) 2 sec 396 
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argument with the plea that the very scheme of PC Act is that the case 
could be tried only by a Special Judge who would not be below the rank 
of Special Judge as provided under Section 4 of the PC Act, which is as 
under: 
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"4. Cases triable by special Judges.-
( I) Notwithstanding anything contained in the Code of Criminal 
Procedure, 1973, or in any other law for the time being in force, 
the offences specified in sub-section (I) of section 3 shal I be tried 
by special Judges only. 
(2) Every offence specified in sub-section (1) of section 3 shall 
be tried by the special Judge for the area within which it was 
committed, or, as the case may be, by the special Judge appointed 
for the case, or where there are more special Judges than one for 
such area, by such one of them as may be specified in this behalf 
by the Centra I Government. 
(3) When trying any case, a special Judge may also tiy any offence, 
other than an offence specified in section 3, with which the accused 
may, under the Code of Criminal Procedure. 1973, be charged at 
the same trial. 
(4) Notwithstanding anything contained in the Code of Criminal 
Procedure, 1973, a special Judge shall. as far as practicable, hold 
the trial of an offence on day-to-day basis." 
9. He then referred to Section 5 to point out that there was a 
specific power given to the Special Judge to take cognizance even without 
committing the case to the Special
Judge by the Magistrate. Section 5 
reads as under: 
"5. Procedure and powers of special Judge.-
( I) A special Judge may take cognizance ofoffences without the 
acctised being committed to him for trial and, in trying the accused 
persons, shall follow the procedure prescribed by the Code of 
Criminal Procedure, 1973. for the trial of warrant cases by 
Magistrates. 
(2) A special Judge may, with a view to obtaining the evidence of 
any person supposed to have been directly or indirectly concerned 
in or privy to, an offence, tender a pardon to such person on 
condition of his making a full and true disclosure of the whole
STATE THROUGH CBI, CHENNAI v. V. ARUL KUMAR 
(A. K. SIKRJ, J.] 
circumstances within his knowledge. relating to the offence and 
to every other person concerned, whether as principal or abettor, 
in the commission thereof and any pardon so tendered shall, for 
the purposes of sub-sections (I) to (5) of section 308 of the Code 
of Criminal Procedure, 1973, be deemed to have been tendered 
under section 307 of that Code. 
(3) Save as provided in sub-sections (1) or sub-section (2), the 
provisions of the Code of Criminal Procedure, 1973. shall, so far 
as ti1ey are not inconsistent with this Act, apply to t11e proceedings 
before a special Judge; and for the purposes of the said provisions, 
the Coutt of the special Judge shall be deemed to be a Court of 
Session and the person conducting a prosecutipn before a special 
Judge shall be deemed to be a public prosecutor. 
( 4) Jn particular and without prejudice to the generality of the 
provisions contained in sub-section (3), the provisions of sections 
326 and 475 of the Code of Criminal Procedure, 1973, shall, so 
for as may be, apply to the proceedings before a special Judge 
and for the purpo.ses of the said provisions, a special Judge shall 
be deemed to be a Magistrate. 
(5) A special Judge may pass upon any person convicted by him 
· any sentence authorized by law for the punishment of the offence 
of which such person is convicted. 
( 6) A special Judge, while trying an offence punishable under ti* 
Act, shall exercise
all the powers and functions exercisable by a 
District Judge under the Criminal Law Amendment Ordinance. 
1944." 
I 0. The submission, to be precise, was that PC Act, on this aspect 
was a complete Code in itself which gave powers to only the Special 
Judge to try the cases, without the involvement of a Magistrate even in 
committing the case to the Special Judge and because of'this reason, 
provision of Section 306 of the Code stand excluded and would have no 
application to the cases triable under PC Act. To buttress this submission, 
Mr. Basant referred to Sections 4 and 5 of the Code which deal with 
"Trial of offences under the Indian Penal Code and other laws" as well 
as "saving':respectively and provide as follows: 
"4. Trial of offences under the Indian Penal Code and other laws.-
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(1) All offences under the Indian Penal Code( 45 of 1860) shall 
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be investigated. inquired into, tried, and otherwise dealt with 
according to the provisions hereinafter contained. 
(2) All offences under any other law shall be investigated; inquired 
into, tried, and otherwise dealt with according to the same 
provisions, but subject to any enactment for the time being in force 
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regulating the manner or place ofinvestigating, inquiring into, trying 
or otherwise dealing with such offences. 
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5. Saving.-
Nothiri'g contained in this Code shall, in the absence of a specific 
provision to the contrary, affect any special or local law for the 
time being in force, or any special jurisdiction or power conferred, 
or any special form of procedure prescribed, by any other law for 
the time being in force."' 
11. Specifically relying upon the provisions of Section 4(2) of the 
Code, the learned senior counsel made a passionate plea that if the 
offences are to be tried under a law, other than Indian Penal Code, the 
Code was subject to that law/enactment, in force at that time. He argued 
that since PC Act is in force with special scheme giving the powers only 
to the Special Judge to take cognizance without any committal of 
proceedings, it should be treated that the case from very beginning is the 
post committal case i.e. with the Sessions Judge and, therefore, Magistrate 
stands denuded of his powers which are given in respect of offences 
under the !PC to him under Section
306 of the Code. He pointed out 
that though there was no judgment of this Court on this aspect but 
Rajasthan High Court had taken the same view as projected by him, in 
Rajendra Singh v. State of Rajastlwn'. 
12. Insofar as argument of the appellant predicated on Section 
460 of the Code is concerned, it was sought to repel by Mr. Basant with 
the submission that in the aforesaid scenario projected by him, it was not 
a case of irregularity but inherent lack of jurisdiction on the part of the 
Magistrate to pass the order of tender of pardon and, therefore, Section. 
460 of the Code had no application. He relied upon the judgment in the 
case of A. Devendran v. State of Tamil Nadu;. 
13. We have given our utmost consideration to the respective 
submissions advanced by counsel for the parties on both sides. We may 
' RLW 2003 (3) R~j. 1865 
' (1997) 11 sec no
STATE THROUGH CBI, CHENNAI v. V. ARUL KUMAR 
fA. K. SIKRI, J.l . 
state at the outset that in the instant case, the chargesheet was filed by 
the prosecution on 30.01.2006 before the Metropolitan Magistrate. At 
that time, prayer for grant of tender of pardon was also made before the 
Magistrate taking the plea that five individuals were taken as approvers 
after recording their confessional statements. Order was passed by the 
learned Magistrate granting pardon and thereafter the case was 
committed to the Additional Special Judge for CBI cases, Chennai as it 
is triable by the Special Judge. Special Judge thereafter framed charges 
against the accused persons on 10.07.2012. Keeping in mind the aforesaid 
facts, let us take note of Section 306 of the Code to find out as to whether 
the Magistrate had the requisite power to grant tender of pardon under 
the said provision. It reads as under: 
"306. Tender of pardon to accomplice.- (I) 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 
relative to the offence and to every other person concerned, 
whether as principal or abettor, in the commission thereof. 
(2) This section applies to-
(a) any offence triable exclusively by the Court of Session or 
by the Court of a.Special Judge appointed under the Criminal 
Law Amendment Act, 1952 (46of1952). 
(b) any offence punishable with imprisonment which may 
extend to seven years or with a more severe sentence. 
· (3) Every Magistrate who tenders a pardon under Sub-Section 
( 1) shall record-
( a) his reasons for so doing; 
(b) whether the tender was or was not accepted by the person to 
whom it was made, 
· 
and shall, on application made by the accused, furnish him with a 
copy of such record free of cost. 
( 4) Every persQn accepting a tender of pardon made under Sub-
section (I}--
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(a) shall be examined as a witness in the Court of the Magistrate 
taking cognizance of the offence and in the subsequent trial, if 
any; 
(b) shall, unless he is already on bail, be detained in custody 
until the termination of the trial. 
(5) Where a person has accepted a tender of pardon made under 
Sub-Section ( 1) and has been examined under Sub-Section ( 4), 
the Magistrate taking cognizance of the offence shall, without 
making any further inquiry in the case,-
(a) commit it for trial--
(i) to the Court of Session ifthe offence is triable exclusively 
by that Court or if the Magistrate taking cognizance is the 
Chief Judicial Magistrate; 
(ii) to a Court of Special Judge appointed under the Criminal 
Law Amendment Act 1952 (46of1952), if the offence is triable 
exclusively by that Court; 
(b) in any other case, make over the case to the Chief Judicial 
Magistrate who shall try the case himself." 
14. Sub-section ( 1) of Section 306 of the Code very categorically 
and unambiguously mentions Metropolitai1 Magistrate as one of the 
Judicial Officers who can exercise the power of tender of pardon to 
accomplice. Thus, Metropolitan Magistrate is specifically given such a 
power under Section 306 of the Code. Sub-section (2) of Section 306 
makes it clear that this Section applies even to those offences which are 
triable exclusively by the Court of Session or by the Court of a Special 
Judge appointed under the
Criminal Law Amendment Act, 1952. Thus, 
even where the cases are triable by a Special Judge, the Metropolitan 
Magistrate is authorised to grant tender of pardon. Sub-section (3) and 
sub-section ( 4) outline the procedure that is to be followed in discharging 
this function. Sub-section (5), which is material forour purpose, stipulates 
that after the person has accepted a tender of pardon made under sub-
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section ( 1) and has bee1texamined under sub-section (4), the Magistrate 
taking cognizance i'lfthe offence will not make any further inquiry in the 
case and commit it for trial to a Court ofSpecial Judge, ifthe offence is 
triable exclusively by that Court. This sub-section makes the position 
beyond any pale of doubt, that even when an offence is triable by a 
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Session Judge, the Magistrate has the requisite power to take cognizance 
and grant tender of pardon and, thereafter, commit the case to the Special
STATE THROUGH CBI, CHENNAl v. V. ARUL KUMAR 
• [A. K. SlKRl, J.] 
Judge for trial. Section 307 of the Code restricts the power to grant 
tender of pardon by conferring it in the hands of the Court to which the 
commitment is made, only after the commitment of a case. This provision, 
also lends support to the position taken by the appellant, as it makes it 
clear that after the committal of the case, it i"s only that Court to which 
the commitment is made has the power to tender a pardon, thereby 
implying that before the commitment of case, Magistrate is duly 
empowered. Section 308 of the Code is of no consequence to decide 
the controversy before us as it deals with the trial of person not complying 
with conditions of pardon. 
15. On a plain reading of Section 306 in conjunction with Section 
307 of the Code, it becomes manifest that Magistrate is duly empowered 
to grant tender of pardon even in respect of the cases which are triable 
by the Session Court or by the Special Judge. This legal position is 
eloquently accepted in P.C. Mislrra's case. That was also a case under 
P.C. Act in which P.C. Mishra (appellant in the said appeal) and his 
Reader Ravi Bhatt were made accused persons. During investigation, 
CBI noticed that accused Ravi Bhatt 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 were otherwise not available to the
investigating agency. In this 
backdrop, the CBI filed an application under Section 306 of the Code 
before the Special Judge, CBI, Delhi for grant of pardon to Ravi Bhatt. 
The Special Judge marked that application to the Chief Metropolitan·· 
Magistrate, who, in tum, referred the same to the Metropolitan Magistrate. 
The Metropolitan Magistrate examined the application of the CBI and 
passed the order, in exercise of powers conferred under Section 306 of 
the Code, holding that it was a fit case where pardon should be granted 
to Ravi Bhatt to enable the prosecution to unveil all circumstances of the 
case and to unearth the truth. Other accused, namely, P.C. Mishra 
challenged the said order exactly on the grounds whieh are taken before 
us, i.e., the Magistrate had no power to grant the pardon as the case 
was triable by the Special Judge. This Court repelled the contention by 
reading such a power in the hands of Metropolitan Magistrate as well, 
before the committal of the case and found that power was rightly 
exercised as order of committal has not been passed when the order of 
grant of pardon was passed by the Magistrate. Following discussion 
from the said judgment is worth quoting: 
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11. Power to grant pardon enjoined under Section 306 Cr.P.C. is 
a substantial power and the reasons for tendering pardon must be 
recorded. It is for the prosecution to ask that a particular accused, 
out of several, may be granted pardon, ifit thinks that it is necessary 
in the interest of successful prosecution of other offenders or else 
the conviction of those offenders would not be easy. This Court in 
State of U.P. v. Kai/ash Nath Agarwal [State of U.P. v. Kai/ash 
Nath Agarwal, (1973) I SCC 751 : 1973 SCC (Cri) 698] 
recognised the power of the District Magistrate to grant pardon 
at the investigation stage. This Court in Kanta Prashad v. Delhi 
Admn. [Kaniii Prashad v. Delhi Admn., AIR 1958 SC 350 : 
1958 Cri LJ 698) had the occasion to examine the scope of Sections 
337 and 338 of the old Code (CrPC 1898) vis-a-vis the powers of 
a Special Court constituted under the Criminal Law (Amendment) 
Act, 1952. This Court held that, reading the proviso to Section 
337 and provisions of Section 338 together, the District Magistrate 
is empowered"to tender a pardon even after a commitment, ifthe 
Court so directs. It was also held that under Section 8(2) of the 
Criminal Law (Amendment) Act, 1952, the Special Judge has 
also been granted power to tender pardon. The conferment of 
this power on the Special Judge in no way deprives the District 
Magistrate of his power to grant a pardon under Section 33 7 of
the Code. It was held if at the time when the District Magistrate 
tenders the pardon, the .case was not before the Special Judge, 
then there is no illegality committed by the District Magistrate. 
12. The scope of abovementioned provisions again came up for 
consideration before this Court in Kai/ash Nath Aganl'O/ [State 
ofU.P. v. KailashNathAganl'a/, (1973) I SCC 751: 1973 SCC 
(Cri) 698), wherein this Court after referring to its earlier judgment 
in Kanta Prashad [Kanta Prashad v. Delhi Admn., AIR 1958 
SC 350: 1958 Cri LJ 698) held as follows: (Kai/ash Nath Aganl'O/ 
case [State ofU.P. v. KailashNathAgan1'0/, (1973) I SCC 751 
: 1973 sec (Cri) 698), sec p. 757, para 13) 
"It will be noted from this decision that emphasis is laid on the 
fact that the proviso to Section 337 contemplates concurrent 
jurisdiction in the District Magistrate and in the Magistrate making 
an inquiry or holding the trial to tender pardon. It is also emphasized 
that the conferment of the power to grant pardon on the Special
STATE THROUGH CBI, CHENNAI v. V. ARUL KUMAR 
[A. K. SIKRI, J.] 
Judge does not deprive the District Magistrate of his power to 
grant pardon under Section 337." 
13, In Bangaru Laxman [Bangaru Laxman v. State, (2012) 1 
. sec 500: c2012) 1 sec (Cri) 487: c2012) 2 sec (L&S) 422] 
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 ofa Magistrate. 'fhis Court, while interpreting Section 
5, then went on to say as follows: (SCC pp. 509-10, paras 40-42) 
"./0. Thus, on a hannonious 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 withiti the domain cif 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 !ls 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 l\.1agistrate 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 
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indicated, after the committal of the case, the pardon granted by 
the Magistrate is not a curable irregularity." 
16. In the light of the aforesaid legal position, we deal with the 
arguments of Mr. Basant, learned senior counsel for the respondent as 
to whether Section 306 of the Code has no application in the cases 
relating to offences under PC Act. No doubt, Section 4 of the PC Act 
states that the offences specified in sub-section (I) of Section 3 shall be 
tried by Special Judges only, notwithstanding anything contained in the 
Code, or in any other law forthe time being in force. Further, Section 5 
gives power to the Special Judge to take cognizance of offences even 
without the accused being committed to him for trial and sub-section (2) 
of Section 5 empowers the Special Judge to grant pardon as well. It 
was on the basis of these provisions Mr. Basant has advanced the 
argument that PC Act was a complete Code and power was specifically 
given to the Special Judge and, therefore, Section 306 of the Code had 
no application and Magistrate had no power to grant pardon in respect 
of offences triable under the PC Act. He submitted that these provisions 
were not taken note of by the Division Bench of this Court in P.C. 
Mishra's case and, therefore, matter required consideration by a Larger 
Bench. We are, however, not impressed by the aforesaid submissions. 
17. Sub-section (I) of Section 5, while
empowering a Special Judge 
to take cognizance of offence without the accused being committed to 
him for trial, only has the effect of waiving the otherwise mandatory 
requirement of Section 193 of tl;ie Code. Section 193 of the Code 
stipulates that the Court of Session cannot take cognizance cf any offence 
as a Court of original jurisdiction unless the case has been committed to 
it by a Magistrate under the Code. Thus, embargo of Section 193 of the 
Code has been lifted. It, however, nowhere provides that the cognizance 
cannot be taken by the Magistrate at all. There is, thus, an opiion given 
to the Special Judge to straightway take cognizance of the offences and 
not to have the committal route through a Magistrate. However, normal 
procedure prescribed under Section 190 of the Code empowering the 
Magistrate to take cognizance of such offences, though triable by the 
Court of Session, is not given a go-bye. Both the alternatives are available. 
In those cases where chargesheet is filed before the Magistrate, he will 
have to commit it to the Special Judge. In this situation, the provisions of 
Section 306 of the Code would be applicable and the Magistrate would 
be empowered to exercise the power under the said provision. In contrast,
STATE THROUGH CBI, CHENNAI v. V. ARUL KUMAR 
501 
[A. K. SIKRI, J.l 
in those cases where Special Judge takes cognizance of offence directly, 
as he is authorised to do so in view of Section 5(2) of PC Act, Section 
· 306 of the Code would get bypassed and as the Special Judge has taken 
cognizance, it is Section 307 of the Code which would become applicable. 
Sub"section (2) of Section 5 of PC Act makes this position clear by 
prescribing that it is the Special Judge who would exercise his powers to 
tender of pardon as can clearly be spelled out by the language employed 
in that provision. Section 5(2) is to be read in conjunction with Section 
5(1) of the PC Act. The aforesaid legal position would also answer the 
argument of the learned counsel for the respondent based on the judgment 
A 
B 
of this Court in A. Devendran (supra). In that case, this Court held that 
once the proceedings are committed to the Court of Session, it is that . C 
Court only to which commitment is made can grant pardon to the approver. 
The view taken by us is, rather, in tune with the said judgment. 
18. We, therefore, do not find merit in the aforesaid contention of 
the leame.d counsel for the respondent. For these reasons, we also do 
not agree with the view taken by the Rajasthan High Court in Rajendra 
D 
Singh (supra).and over-rule that judgment. 
19. The appellant would succeed even on the basis of Section 460 
of the Code. Clause (g) of this Section which is relevant for us reads as
under: 
"460. Irregularities which do not vitiate proceedings.- If any 
Magistrate not empowered by law to do any of the following things, 
namely:-
xx 
xx 
xx 
(g) to tender a pardon under section 306; 
xx 
xx 
xx 
erroneously in good faith does that thing, his proceedings shall not 
be set aside merely on the ground of his not being so empowered." 
20. This Section treats some of the acts of.the Magistrate, specified 
in clauses (a) to (i) as 'irregularities'. These are treated as irregularities 
even when the Magistrate is not 'empowered by law to do' those acts. 
Tendering a pardon under Section 306 of the Code is included in those 
acts of "irregularities". Therefore, even if we presume that the 
Magistrate was not empowered (though we have held otherwise), the 
order passed by the Magistrate is saved by Section 460(g) of the Code. 
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A This aspect also stands clinched in P.C Misflra's case where the legal 
position was stated in the following manner: 
· 15. We may, in this regard, refer to Section 460 Cr.P.C. which 
refers to nine kinds of curable irregularities, provided they are 
caused erroneously and in good faith. Irregularity caused while 
B 
granting pardon is dealt with in Section 460(g) Cr.P.C. The relevant 
part of that section reads as follows: 
c 
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"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 shalt not 
be set aside merely on the ground ofhis 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 the
Chief Metropolitan Magistrate/Metropolitan 
Magistrate to deal with the same since the case was under 
investigation. In such circumstances, we find no error in the Special 
Judge directing the Chief Metropolitan Magistrate or the 
Metropolitan Magistrate to pass appropriate orders on the 
application of CBI in granting pardon to the second respondent so 
as to facilitate the investigation." 
2 I. In view ofour aforesaid discussion, impugned judgment of the 
High Court does not stand legal scrutiny. In fact, we find that the High 
Court had formulated wrong question for consideration as is clear from 
H paragraph 5 of the judgment and, therefore, went astray in deciding
/ 
STATE THROUGH CBI, CHENNAJ v. V. ARUL KUMAR 
503 
[A. K. SIKRI, J.] 
such a question. Paragraph 5 of the High Court judgment mentions the 
A 
question that was framed: 
"5. Point for Consideration: Whether the Special Judge is 
competent to Tender of Pardon under Section 306 Cr.P.C. And 
Section 5(2) of P.C. Act." 
.,-'··. 
22. The question was not as to whether Special Judge is competent 
to tender of pardon. The question was as to whether Magistrate rightly 
passed the order of tender of pardon. The High Court took circuitous 
route by answering that Special Judge was competent and from that 
concluded that Magistrate was not competent. 
23. In view of our discussion above, the judgment of the High 
Court warrants to be set aside. We, thus, set aside the judgment of the 
High Court a.nd allow the present appeal. 
No costs. 
Nidhi Jain 
Appeal allowed. 
B 
c