RAJKUMAR SANGAIAH PANDIYAN Vs. STATE OF GUJARAT

JUDGEMENT

(1.) As in both the matters common questions arise for consideration, they are being considered by this common order.

(2.) Petitioners of respective both the petitions are co-accused in the charge-sheet filed by CBI against various alleged offenders in connection with I-C.R. No. 5/05 dated 16.07.2007 of ATS Police Station, Ahmedabad and thereafter, was registered as separate complaint by CBI after the investigation was transferred under the orders of the Apex Court to CBI. The charge-sheet against the accused concerned including the Petitioners herein is filed in Special Case No. 5/10 before the learned Additional Chief Judicial Magistrate, Special CBI Court No. 2, Ahmedabad (Rural). The Petitioners of Special Criminal Application No. 1737/10 is the original accused No. 2 whereas Petitioners of Special Criminal Application No. 1903/10 are original accused No. 1 and 5 (hereinafter referred to as "Petitioners/co-accused" for the sake of convenience). It appears that the original accused No. 12 Shri N.K. Amin after filing of the charge-sheet before the learned Magistrate applied for pardon under Section 305 of the Code of Criminal Procedure by showing a desire to disclose the whole of the circumstance within his knowledge. The original accused Nos. 1 and 5 resisted the said application under Section 306 of Code of Criminal Procedure before the learned Magistrate by filing objections and at that stage, the reference was made by the learned Magistrate under Section 395 of Code of Criminal Procedure to this Court on the aspects of constitutional validity of Section 306 of the Code of Criminal Procedure vide order dated 26.08.2010. At that stage, the CBI, Respondent No. 2 herein, challenged the aforesaid order dated 26.08.2010 passed by the learned Magistrate for making reference under Section 395 of the Code of Criminal Procedure to this Court. We may record that the reference made by the learned Magistrate was numbered as Criminal Reference No. 2/10. This Court vide its judgment dated 07.10.2010 in a petition preferred by CBI challenging the aforesaid order of the learned Magistrate for making reference being Cr. Misc. Application No. 10311/10 after hearing both the sides had concluded at para 56 and observed that the power under Section 306 of Code of Criminal Procedure are not unguided or arbitrary and the say of the other co-accused are not required to be considered nor they have any role to play when the question is to be considered by the learned Magistrate for grant of pardon, but the co-accused will have right to cross-examine the accomplice witness if his statement has been recorded and a further right to cross-examine in the event such statement is used as an evidence at the time of trial. It was also observed that the learned Magistrate is required to decide the application under Section 306 of the Code of Criminal Procedure by maintaining the spirit of advancement of interest of justice. It was also observed that the order by the learned Magistrate by making reference is by way of misdirection of exercise of the power and condition for making reference have not been satisfied

(3.) Ultimately, the order passed by the learned Magistrate was quashed and set aside in exercise of the power under Section 482 of the Code of Criminal Procedure Consequently, thereafter by a separate order, Reference No. 2/10 also came to be disposed of.