C.B.I. Vs. ASHOK KUMAR AGGARWAL

JUDGEMENT

(1.) This appeal has been preferred against the impugned judgment and order dated 20.8.2007 passed by the High Court of Delhi at New Delhi in Crl. Misc. (Main) No. 3741 of 2001, by which it has set aside the order of the Special Judge dated 7.9.2001 granting pardon to respondent no. 2, Shri Abhishek Verma under Section 306 of Code of Criminal Procedure, 1973 (hereinafter referred to as the 'Cr.P.C.') and making him an approver in the case wherein respondent no.1, Ashok Kumar Aggarwal is also an accused; and remanded the same to decide the application afresh.

(2.) Facts and circumstances giving rise to this appeal are that:

(3.) Shri K.V. Vishwanathan, learned ASG appearing for the appellant has submitted that the order passed by the Special Judge on 7.9.2001 was in consonance with the law laid down by this Court. The question of examining the culpability or comparing the same between the accused does not arise. Pardon can also be granted to an accused whose culpability is higher than that of the other accused in the crime. The Special Judge has passed the order strictly observing and following the ratio laid down by this court in this regard in Lt. Commander Pascal Fernandes v. State of Maharashtra & Ors., 1968 AIR(SC) 594 and subsequent judgment in Jasbir Singh v. Vipin Kumar Jaggi & Ors., 2001 AIR(SC) 2734. The High Court erred in setting aside the order of the Special Judge and remanding the case to be decided afresh. The High Court failed to appreciate that respondent no.1 had earlier approached the High Court and this court moving various applications but did not succeed. Those orders had attained finality, however, were not taken note of by the High Court. The oral direction given by the Special Judge that the CBI should file the list of cases being investigated by different agencies involving respondent no.2 was not complied with. However, failure on part of the CBI to do so would not materially affect the decision of the Special Judge granting pardon and making respondent no.2 an approver. Granting pardon and making an accused approver is a matter between the court and the applicant accused. The co-accused has no right to be heard before any forum. Therefore, the impugned order is liable to be set aside.