LT COMMANDER PASCAL FERNANDES Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) This is an appeal by special leave against an order of the High Court of Bombay dated July 20, l967 dismissing a criminal revision application filed by the appellant against an order of the Special Judge, Bombay tendering pardon to a co-accused under S. 8 (2) of the Criminal Law Amendment Act of 1952. The appellant is being tried before the Special Judge, Bombay along with seven others for conspiracy to cheat the officers of the Naval Dockyard and under S. 5 (2) of the Prevention of Corruption Act, 1947. The substantive charges against the several accused are different but it is not necessary to mention them here. The gist of the accusation is that the several accused had entered into criminal conspiracy to cheat the authorities of the Naval Dockyard. Material purchased locally was certified to be of superior quality while it was, in fact, inferior. In this and in diverse ways the Naval Dockyard Authorities were cheated to the tune of Rupees 8,65,000 and odd. Among the array of the accused in the case are three contractors (accused Nos. 5, 6 and 7) and their servant (accused No. 8) , and four Government servants of whom accused No. l is the appellant before us. Of the remaining three Government servants, accused No. 4 (M. M. Jagasia) was an Upper Division Clerk working as Office Supdt. at the material time drawing a salary of Rs. 200 per month. Against Jagasia there is yet another charge, namely, that he is in possession of property disproportionate to his known sources of income which fact, if proved, is likely to lead to a presumption under the Prevention of Corruption Act. Evidence has already been accumulated, which is calculated to show that he is in possession of three motor cars, a building valued at Rs. 28,000 and odd and currency notes in a locker of the value of Rs. 16,400 in addition to gold and other ornaments and his bank balance.

(2.) The case appears to have been previously before Mr. R. K. Joshi, Special Judge, Greater Bombay and he framed charges against the accused in the case, on the basis of material furnished by the prosecution under the provision of S. 173 of the Code of Criminal Procedure. The case then went before the present Special Judge, Mr. N. M. Indurkar. The case was fixed for trial from April 24, l967. On April 20, 1967, Jagasia made an application to the Court praying that he should be tendered pardon and made an approver and examined as a prosecution witness. The reason given by Jagasia was that he had full and complete knowledge of all that had taken place between the officers and the contractors and that he was in a position to disclose how the conspiracy was farmed and the several offences committed. He said that he was making this offer "in order to unburden the mental tension and in order to help the cause of Justice." He also stated that he had not been given any threat, promise or any inducement by any police officer and that he was making the application voluntarily.

(3.) The application of Jagasia was stoutly opposed by his co-accused, particularly the appellant before us. It was contended on his behalf that the granting of pardon to secure evidence, whether under the Code of Criminal Procedure or under S. 8 (2) of the Criminal Law Amendment Act, 1952, was essentially for the prosecution to consider in the first instance; that the application being made after the framing of the charges was not legally tenable; that the prosecution considered the evidence sufficient for the successful prosecution of all the accused including Jagasia himself; that the evidence against Jagasia was likely to be fortified by the presumption under the Prevention of Corruption Act and that the grant of pardon to him would be an act of favour to him and highly prejudicial to the defence of other accused. The special Judge, Greater Bombay, after hearing arguments tendered a conditional pardon to Jagasia and ordered that he shall be examined as an approver and witness for the prosecution. Simultaneously the learned Judge ordered that Jagasia's statement be recorded by the police under S. 162 (161) (sic) of the Code of Criminal Procedure and copies thereof supplied to the other accused in good time before the hearing next started.