ANANTHA NARAYANA BHATT Vs. CENTRAL BUREAU OF INVESITGATION

JUDGEMENT

(1.) Could a Chief Judicial Magistrate tender a pardon to an accused in the course of investigation of a case exclusively triable by the Court of Special Judge and Enquiry Commissioner (for short, "the Special Court") constituted under Section 3 of the Prevention of Corruption Act, 1988 (for short, "the Act") and before the Special Judge took cognizance of the offence after repeal of the Criminal Law Amendment Act, 1952 (for short, "the Amendment Act") Should the person accepting tender of a pardon made by the Chief Judicial, Magistrate be examined as a witness in the Special Court before commencement of trial in that Court These questions arise fora ejecision in this revision.

(2.) Short facts of the case necessary for a decision of the questions raised are : A case was registered on 28-5-2002 for offences punishable under Sections 120-B, 420, 468 and 471 of the Indian Penal Code (for short, "the IPC") read with Sections 13(2) and 13(1)(d) of the Act. Case is that accused No. 1, then a Senior Manage of Canara Bank, during the period between January, 1999 and August, 1999 entered into criminal conspiracy with other accused persons to make unlawful gain by abusing his official position and to cheat the Bank and in pursuance of that conspiracy, accused No. 1 sanctioned loans to the tune of Rs. 92.21 lakhs on the strength of false invoices and false salary certificates submitted by accused Nos. 2 to 4. The further allegation is that cash receipts were submitted by one Jaimon Joseph, one of the conspirators. In the course of investigation and on request of the Investigating Officer, statement of the said Jaimon Joseph was recorded by learned Judicial First Class Magistrate, Kochi under Section 164 of the Code of Criminal Procedure, 1973 (for short, "the Code") on 19-2-2004. Jaimon Joseph is said to have made a voluntary disclosure of the facts within his knowledge. Thereafter the Investigating Officer made a request to learned Chief Judicial Magistrate, Ernakulam to tender a pardon to the said Jaimon Joseph. Pursuant to that request learned Chief Judicial Magistrate recorded statement of the said Jaimon Joseph on 14-6-2004 when also Jaimon Joseph is said to have made a voluntary disclosure of the facts within his knowledge. On 30-6-2004 learned Chief Judicial Magistrate after consideration of the statements of the said Jaimon Joseph tendered a pardon to him on the satisfaction that said Jaimon Joseph has made a true and voluntary disclosure of all facts known to him. Jaimon Joseph accepted the tender of pardon. After tendering pardon, on the same day learned Chief Judicial Magistrate examined the said Jaimon Joseph (as a witness). (Though in the statement of the said Jaimon Joseph he is seen to have made a request for tendering a pardon as if pardon was tendered after his examination as a witness, it is seen from the endorsement of learned Chief Judicial Magistrate in the statement of said Jaimon Joseph (recorded on 30-6-2004) that statement was recorded after tendering of a pardon to the said Jaimon Joseph in view of his statement already recorded by learned Chief Judicial Magistrate on 14-6-2004). The Investigating Officer filed final report in the Court of learned Special Judge on 1-7-2004 deleting the said Jaimon Joseph from array of accused and citing him as a prosecution witness. Learned Special Judge took cognizance of the offences by order dated 2-7-2004. Learned Special Judge framed charge against the accused and their plea of not guilty were recorded. Learned Prosecutor in charge of the case filed a petition (C.M.P. No. 75 of 2009) before learned Special Judge on 27-1-2009 to examine the said Jaimon Joseph as its witness, first. That petition was allowed on 15-4-2009 and accordingly examination of the said Jaimon Joseph commenced before learned Special Judge as P.W. 1 (hereafter referred to as "P.W. 1") on 26-5-2009. His chief examination continued on 27-5-2009, 28-5-2009 and on 2-6-2009. On 2-6-2009 petitioner (accused No. 5) filed C.M.P. No. 478 of 2009 praying that pardon granted to P.W. 1 may be revoked as he was not examined as a witness under Section 306(4) of the Code and hence trial is per se illegal. Learned Special Judge heard both sides and as per order dated 4-6-2009 dismissed the petition holding that in a case triable by the Special Court examination of the approver as a witness under Section 306(4) of the Code is not required. (In the order it is stated that C.M.P. No. 478 of 2009 was filed while the examination of P.W. 1 was in progress). On 5-6-2009 P.W. 1 was sworn again in the Court of learned Special Judge and he was offered for cross-examination. Counsel for petitioner (accused No. 5) declined to cross-examine. Learned Special Judge then directed petitioner (accused No. 5) to cross-examine P.W. 1. he stated that his counsel will cross-examine. Following that, counsel for accused Nos. 8, 9, 13 and 18 cross-examined P.W. 1. The order dated 4-6-2009 is under challenge in this revision.

(3.) It is contended by learned counsel for petitioner that tender of pardon to P.W. 1 is illegal in that learned Chief Judicial Magistrate had no power to tender a pardon in a case exclusively triable by the Special Court after repeal of the Amendment Act. Learned counsel contended that Section 30 of the Act repealed the Prevention of Corruption Act, 1947 and the Amendment Act and hence the Amendment Act ceased to exist in the Statute Book the day the Act (Prevention of Corruption Act, 1988) came into force. Therefore, invoking Section 306(1) of the Code learned Chief Judicial Magistrate could not tender a pardon to P.W. 1. It is contended by learned counsel that at any rate Section 306(4) of the Code is not complied in that after P.W. 1 accepted the tender of a pardon he was not examined as a witness in the Special Court (before commencement of trial). It is the further contention of learned counsel that since under S. 5(1) of the Act learned Special Judge could take cognizance of the offence without committal, the Special Judge should be deemed to be the "Magistrate taking cognizance of the offence" for the purpose of S. 306(4) (a) of the Code. Learned standing counsel for respondent would urge that there is nothing illegal, irregular or improper in the procedure adopted by learned Chief Judicial Magistrate or learned Special Judge and at any rate no objection was raised by petitioner before P.W. 1 was put in the box. Hence the objection must be treated as waived. The further argument is that at any rate, cognizance or trial cannot be said to be vitiated.