IQBAL SINGH v.

STATE (DJ;\Llli ADMINISTRATION) & ORS.

November 9, 1977

[A. C. GUPTA AND P. S. KAILASAM, JJ.]

Cri!nina.l Law A1nendment Act, 1952, s. S(l)-Jurisdiction of Special Judge~ whether limited by a grant of pardon by Magistrate u/s. 337(1), Cr.P.C., 1898- Post-pardon application of s. 8(1), whether violatire of .4r!icle 14, Constitution of India.

A charge-sheet agamst the appellant and two others, \Vas filed before the Special Judge, Delhi u/s. 120-B I.P.C. read with ss. 161 and 165-A, 1.P.C. and s. 5(2) of the Prevention of Conuption Act,

1947. Earlier, at the investigation stage, the Chief Judicial Magistrate, Delhi, bad granted pardon to an approver u/s. 337(1) Cr. P.C., 1898. The appellant applied for getting the proceeding quashed, but his application was dismissed, first by the Special Judge, and thereafter by the High Court u/ Art. 227 of the Constitution anct ' 482. Cr.P.C .. 1898.

The appellant contended before this Court, that, on the grant of such apardon, the application of s. 8(1) of the Criminal Law Amendment Act, 1952 ceases for the reason that on the chargesheet being filed before a Magistrate, the accused can have the approver's evidence at the trial tested against his statement before the Magistrate, while he is denied this opportunity where thechargesheet is filed before the Special Judge, thus rendering s. 8(1) of ithe Criminal Law Amendment Act if applied to such a case discriminatory, and violative of Art. 14 of the Constitution.

Dismissing the appeal the Court,

HELD: (! J Section 337 (2-B), under which the Magislrnte is required to send the case for trial to the Special Judge, after examining the approver,

does not in any way affect the jurisdiction of the Special Judge.

BY _enacting sub-section (2B) in 1955, if the legislature sought to curb the power given to the Special Judge by s. 8(1) of the Criminal Law Amendment Act. 1952. it \vould have expressed its intention clearly. [177 BC]

(2): The fact that the approver's evidence cannot be tested agairut any previous statement does not make any material difference to the detriment of the accused, transgressing Article 14 of the Constitution. The Special Judge. in any case., v,;11 have to apply the well established tests for the appreciation of the acco.mplice's evidence. The mere availability of two procedures woUld not justify the quashing of a provision as being violative of ~.\rt. 14, unles:'j there is substantial and qualitative difference between the two procedures

!!O that one is really and substantially more drastic and prejudicial than the other. [177 D-F]

G Maganlar Chag[!anlal (P) Ltd. v. Mt1nicipal Corporatiqn of Greater Botnf')(IJ and Ors. [1975] 1 SCR l, applied.

CRIMINAL APPELLATE JURISDICATION : Criminal Appeal No. 60 di. 1977.

Appeal by special leave from the Judgment and Order dated 10.9.76 of the Delhi High Court in Criminal Mis. (Main) N(). 84 of 1976.

A. K. Sen, Bishamberlal and B. B. Lal for the Appella11t.

P. N. Lekhi and R. N. Sachthey for Respondent No. 1.

' .

The Judgment of the Court was delivered by

GUPTA J., This appeal by special leave is directed against an -0rder of the Delhi High Court refusing to quash a proceeding pending .against the appellant in the Court of the Special Judge, Delhi.

On or about November 28, 1973 a chargesheet against the appellant and two others was filed before the Special Judge, Tis Hazari, Delhi, 1lllegiii1g facts constituting offences pumshable under section 120-BI Indian Penal Code read with sections 161 and 165A of the Indian Penal Code and section 5 (2) of the Prevention of Corruption Act, 1947.

One Martin Joseph Fernandez had been arrested in com)ection with the case when it was .at the stage of investigation.

He was produced before the Chief Judicial Magistrate, Delhi, who tendered a pardon to him under section 337(1) of the Code of Criminal Procedure, 1898 (hereinafter referred to as the Code).

On December 12, 1975 the appellant applied to the Special Judge for quashing the proceeding for want of sanction under section l 97 of the Code and also on the ground of failure to examine the said Martin Joseph Fernandez as a witness as required by

uh-sections (2) and (2B) of section 337 of the Code.

The Special Judge having dismissed the application, the appellant moved the Delhi High Court under Art. 227 of the ConstiQition and section 482 of the Code of Criminal Prncedure, 1973 for setting aside the order passed by the Special Judge and quashing the proceeding.

On September 10, 1976 the High Court dismissed the appellant's petition and upheld the prder of the Special Judge rejecting the prayer for quashing the proceeding.

Mr. A. K. Sen appearing for the appellant has not pressed the ground of want of sanction and has confined his argument to the other ground.

His contention is that once a pardon has been tendered to a person at the stage of the investigation under section 337(1) of the Code, the provision of section 8(1) of the Criminal Law Amendment Act, 1952 empowering a Special Judge to take cognizance of offences without the accused being committed to him for trial, ceases to apply and the clmrgesheet in such a case mnst be filed before a competent magistrate.

It is argued that in such a case letting the Special Judge take cognizance of the offence under section 8 (I) of the Criminal Law Amendment Act would make the, provision discriminatory offending Article 14 of the Constitution.

The argument is built on sub-section (2B) of section 337 of the Code nnder which the magistrate taking cogtrizance of the oence has to examine the approver as a witness before sendin~ the case for trial to the Court of the Special Judge.

To test this argument we may refer briefly to the relevant provision~ of 1he Code.

Section 337 ( 1) of the Code provides that in the case of any offence specified therein, the District Magistrate, a Presidency Magistrale. a Sub-Divisional Magistrate or any Magistrate of the first class may at any stage of the investigation or enquiry into, or th!! tnal of the offence may tender a pardon to any person supposed to have been concernc(] .in the offence in any way on condition of his making a full and true disclosure of the whole of the cricumstances within his knowledge relative to the offence.

Sub-section (2) of the section requires

SUPREME COURT REPORTS

[1978] 2 S.C.R.

every person accepting a tender of pardon under this section to be examined as a witness in the Court of the Magistrate taking cognizance of the offence and in the subsequent trial, if any. Under subsection (2A) where a person has accepted a tender of pardon and has been examined under sub-section (2), the Magistrate before whom the proceedings are pending if he finds reasonable grounds for belie, ving that the accused is guilty of an offence shall commit him for trial to the Court of Sessions or' High Court as the ca,, e may be. Subsection (2B) on which the appellant relies reads :

"In every case where the offence is punishable under section 161 or section 165 or section 165A of the Indian Penal Code or sub-section (2) of section 5 of the Prevention of Corruption Act, 1947, and where a person has accepted a tender of pardon and has been examined under sub-section (2), then, notwithstanding anything contained in sub-section (2A) ,_a Magistrate shall, without making any further inquiry, send the case for trial to the Court of the Spe:ial Judge appointed under the Criminal Law Amendment Act, 1952."

Thus under sub-section (2B) in the case of an offence mentioned in the sub-section the Magistrate has to send the case for trial to the Court of the Special Judge without making any further inquiry as to whether there are reasonable grounds for believing that the accused is guilty, but after the approved has been examined under sub-section (2).

From these provisions it would appear that where a person has accepted a tender of pardon under sub-section ( 1) of section 337 at the stage of investigation in a case involving any of the offences specified. in sub-section (2B), the prosecution can file the chargesheet either in the court of a competent Magistrate or before the Special Judge wh•> under section 8(1) of the Criminal Law Amendment Act, 1952 has power to take cognizance of the offence without the accused being committed to him for trial.

It follows that if the Magistrate takes cognizance of the offence, the approver will have to be examined as a wit ness twice, once in the court of the Magistrate and again in the court of the Special Judge to whom the Magistrate has to send the case for trial, but if the chargesheet is filed directly in the court of the Special Judge, he can be examined once only before the Special Judge.

This means. that in a case where the chargesheet is filed in the, court of o. M.agistrate, the accused gets an opportunity o~ having the evidence of the approver at the trial tested against what he had said before the Magistrate the accused is denied this opportunity where the chargesheet is filed in the court of the Special Judge. Whether the accused will gs:t the advantage of the procedure which according to the appellant is more beneficial to the accused thus depends on the court in which the proceeding is initiated, and, it is contended, if the choice of forum is left to the prosecution, it will result in discrimination. Mr. Sen submits that the only way to avoid this position is to read sub-section (1), (2) and

(2B) of section 337 of the, Code and section 8(1) of the Criminat Law Amendment Act, 1952 together and to construe them in a way to require that in every case where an accomplice is granted pardon,

the chargesheet must be filed in the court of a Magistrate.

We are unable to accept the contention.

It is clear from the A scheme of section 337 that what is required is that a person who accepts a tender of pardon must be examined as a witness at the different stage; of the proceeding.

Where, however, a Special Judge takes cognizance of the case, the occasion for examining the approver as a witness ames only once. It is true that in such a case there would be no previous evidence of the approver against which his evidence at the tr\al coultl be tested. which would have been available to the accuseJ had the B proceeditig been initiated in the court of a Magistrate who under subsection (2B) of section 337 of the Code is required to send the case tm trial to the special Judge after examining the approver.

But we do not find anything in sub-section (ZB) of section 337 to suggest that it affects in any way the jurisdiction of th.e Special Judge to take cognizance of an offence without the accused being committed to him for trial.

Sub-section (2B) was inserted in section 337 in 1955 by C AmenJinent Act 26 of 1955.

If by enacting sub-section (2B) in 1955 the legislature sought to curb the power given to the Special Judge by •ection 8(1) of the Criminal Law Amendment Act, 1952, there is no reason why the legislature should not have expressed its intention dearly.

Also, the fact that the approver's evidence cannot be tested against any previous statement does not seem to us to make any material difference to the detriment of the accused transgressing Article 14 of D the Constitution.

The special Judge in any case wilJ have to apply the well established tests for the appreciation of the accomplice's evidence. This Court in Magan/al Chhagganlal (P) Ltd. v. Municipal Corporation of Greater Bombay and others(') held that mere availability of two procedures would not justify the quashing of a provision as being violative of Article 14 and that "what is necessary to attract the Inhibition of the Article is that there must be substantial E and qualitative difference between the two procedure so that one is really and substantially more drastic and pre.judicial than the other ... " In our opiniol), there is no such qualitative difference in the two procedures whether a witness is examined once or twice .does not in our opinion make any such substantial difference here that one of them couli! be described as more drastic than the other.

The appeal is accordingly dismissed.

M.R.

Appeal dismissed.

(I) [1975] l S.C.R. 1