GAGU ALIAS NAVGHAN RANDHIR Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This revision application raises a very interesting question of law relation to the power of the court to tender a pardon with a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in or privy to an offence.

(2.) In order to appreciate the point in question it will be worthwhile to refer to the salient facts of this case. A Charge sheet was submitted by the police against seven accused alleging that in furtherance of the common intention to murder the deceased they all committed his murder punishable under sec. 302 I.P.C. read with sec. 34 I.P.C. It was alleged that accused No. 1 had illicit relationship with the wife of the deceased Gagu. So accused No.1 wanted to kill Gagu. He therefore is alleged to have taken into confidence other accused and in furtherance of their common intention Gagu is alleged to have been murdered. One Arjan Khengar is one of the seven accused persons. The statements recorded by the police disclosed that deceased Gagu was last seen in the company of Arjan Khengar. It is stated by the witnesses before the police hat it was this Arjan Khengar who had taken away Gagu while he was in the Salt Works and thereafter he was not seen alive. After Arjan Khengar was arrested he was sent to the Taluka Magistrate for making a confession. However Arjan Khengar refused to make any confession slating that he had not committed any offence. Arjan also sent an application to the court from the jail for being released on bail on 1-2-1973. Thereafter? a typed application bearing the thumb impression of the accused Arjan dated 16-2-1973 was sent to the court stating that in a pardon was given to him he was prepared to make a true disclosure of all the facts. On 2 the accused was called before the learned Magistrate. The accused Arjan Khengar withdrew his application for bail. After considering his application for pardon the learned Magistrate passed an order under sec. 337 Criminal Procedure Code granting him a pardon on condition that he made a true disclosure of the facts concerning the offence. Thereafter while his statement as envisaged under sec. 337(2) was to be recorded by the learned Magistrate original accused No.1 filed a revision application in the sessions court challenging the order of the learned Magistrate giving pardon to the accused-Arjan Khengar. The learned Sessions Judge refused to interfere with the order passed by the learned Magistrate. Accused No.1 therefore has preferred the present revision application.

(3.) Mr. H. K. Thakore learned Advocate for the petitioner submitted that no tender of pardon could be tendered to the accused unless there was material before the court to find out that he would make a full and true disclosure of the whole circumstances within his knowledge relating to the offence. Mr. Thakore submitted that in the instant case accused Arjan Khengar had already made a statement before the Taluka Magistrate that he did not know anything about the offence and that he was not guilty. Under the circumstances Mr. Thakore urged that unless there was material before the court that accused Arjan Khengar was directly or indirectly concerned in or privy to the offence no pardon could be tendered to him He submitted that the very statement of the accused before the Taluka Magistrate would go to show that he had no knowledge with regard to the present offence. Under the circumstances Mr. Thakore urged that the order passed by the learned Magistrate tendering pardon to the accused was clearly wrong. He invited my attention to sec. 339 Criminal Procedure Code which states