KASHINATH KRISHNA BAPAT Vs. STATE OF MYSORE AND

JUDGEMENT

(1.) This is a petition by accused No. 2 in Special Case No. 5 of 1961 on the file of the Special Judge, Belgaum, in which the present petitioner and one Dattatraya Gangdhar Samant stand charge-sheeted for offences punishable under Section 5(2) read with Section 5 (1)(d) of the Prevention of Corruption Act and Section 162 I.P.C.

(2.) The facts giving rise to the present petition are as follows: the present petitioner filed an application on 17-2-1962 in the Court of the Special Judge, Belgaum for grant of pardon under Section 337 of the Code of Criminal Procedure and treat him as an approver in the case as he was ready and willing to make a full disclosure of the true facts and circumstances relating to the pending prosecution. Dattatreya (Accused No. 1) objected to that application, while the Public Prosecutor expressed his assent on 26-2-1962 to the prayer made by the petitioner. The Special Judge heard the petition on 1-3-1962 and rejected the petition by an order dated 2-3-1962. During the pendency of that petition, the accused filed another application before the District Magistrate on 27-2-1962 expressing his willingness to disclose all facts of the case as an approver and praying for pardon under Section 337 of the Code of Criminal Procedure. On 2-3-1962 the District Magistrate forwarded the petition to the Deputy Superintendent of Police, Anticorruption, Belgaum, to take action under the proviso to Sub-section (1) of Section 337, if considered necessary. On the same day, the Deputy Superintendent of Police returned back the application to the District Magistrate with his submission requesting that pardon may be granted to the petitioner under Section 33/(1) of the Code. On the next day, the District Magistrate returned the application back to the District Superintendent of Police drawing his attention to the fact that the trial was pending, and requesting him to take the initial action under the provisions already indicated. The Deputy Superintendent returned the application on 12-3-1962 stating that as the trial was pending before the Special Judge and not before the Special First Class Magistrate, the proviso to Section 337(1) of the Code was applicable to that case and that for the ends of justice and in the best interest of the prosecution the District Magistrate can assume jurisdiction and tender pardon to the accused in question. The District Magistrate recorded the statement of the accused on 16-3-1962 and passed an order granting pardon to the petitioner.

(3.) On 22-3-1962, the Public Prosecutor filed a memo before the Special Judge on behalf of the State submitting that the District Magistrate, Belgaum had tendered pardon to the present petitioner under Section 33711) of the Code of Criminal Procedure for obtaining true evidence in the case on condition of his making a full and true disclosure of the whole of the circumstances within his knowledge in respect of the offence and enclosed a true copy of the order. The Special Judge fixed it for hearing on 26-3-1962, At the hearing, it was contended on behalf of Dattatreya that the District Magistrate could not grant pardon as the case was triable by the Special Judge constituted under the Criminal Law (Amendment) Act, while the prosecution supported the order passed by the District Magistrate. The learned Judge set aside the order of the District Magistrate on the ground that when the case was pending before him, the District Magistrate could act only on the direction of the Special Judge and that the order passed by him was therefore illegal and without jurisdiction. The learned Judge sought to support his view by relying upon the decision in Kanta Prasad v. Delhi Administration AIR 1958 SC 350.