B M LAMBA Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) ON 6-12-1962, J. N, Shukla, Manager of the Premier Credit and Instalment Corporation (P) Limited carrying on business at Lucknow, lodged a report against the revisionist B. M. Lamba before the Superintendent of Police, Lucknow alleging that he alone with his brothers Harish Chandra Lamba, Kailash Chandra Lamba, Ratan Lai, Kun-dan Lai, Narain Das and Krishna Kumar had committed offences punishable Under Sections 420, 4. 67, 468, 471 and 120-B of the Indian Penal Code; upon which a charge sheet was filed against B. M. Lamba and others by the police in the court of the Special Magistrate, Lucknow on 13-5-1965. In the months of April or May, 1963, B. M. Lamba was enlarged on bail. Thereafter on 2-3-1965 one Om Prakash filed a complaint in the court of the Additional District Magistrate III (Judicial), Delhi against Prithvi Nath, Kundan Lai, Prem Tandon, Smt. Swaran Lata Tandon, J. N. Shukla, S. P. Langer, Grish Chandra Gupta, M. M. Agarwal and A. K. Ganjoor. It was alleged that the said persons along with B. M. Lamba had committed offences punishable Under Sections 467, 468, 471, 420 and 120-B of the Indian Penal Code read with Section 109 of the Code. This case was transferred by the Additional District Magistrate III (Judicial), Delhi the same day to the Sub-Divisional Magistrate Karolbagh 'for inquiry and report Under Section 202 of the Code of Criminal Procedure'. Before the Sub-Divisional Magistrate Karolbagh, B. M. Lamba was summoned by the said complainant as a witness. During the course of his deposition B. M. Lamba refused to answer questions on the ground that the same may criminate him. The Magistrate was thereupon moved by the complainant Om Prakash with a prayer that pardon may be tendered to B. M. Lamba Under Section 337 (1) of the Code of Criminal Procedure and his evidence may be recorded treating him as an approver and it was further urged that the protection contemplated by Section 132 of the Evidence Act may also be granted to him. The Sub Divisional Magistrate tendered pardon to B. M. Lamba Under Section 337 (1) of the Code of Criminal Procedure and gave him protection against criminal prosecution not only under that provision of the Code of Criminal Procedure but Under Section 132 of the Evidence Act also. Thereafter the statement of B. M. Lamba was recorded before the Sub Divisional Magistrate. The statements of Om Prakash complainant and some other witnesses produced on his side were also recorded by the said Magistrate. On a consideration of this evidence the Sub Divisional Magistrate, however, came to the conclusion that no prima facie case had been made out against the persons charged in the complaint showing that they were guilty of commission of the said offences. This report was forwarded by him to the Additional District Magistrate III (Judicial), Delhi who concurred in the finding of the Sub Divisional Magistrate that no prima facie case in support of the complaint had been made out and dismissed the complaint of Om Prakash on 21-81967. When the trial arising out of the report of J. N. Shukla proceeded before the Special Magistrate at Lucknow, B. M. Lamba raised an objection that he could not be prosecuted as protection against prosecution had been granted to him by the Delhi Court Under Section 337 (1) of the Code of Criminal Procedure. This contention was rejected by the Lucknow Court. A revision was filed by B. M. Lamba before the Sessions Judge, Lucknow which was heard and decided by Sri Gur Sharan Lai Srivastava as he then was (now Gur Sharan Lai, J. ). This revision was dismissed holding that B. M. Lamba could not claim protection against prosecution in the case arising before the Lucknow Court on the report of J, N. Shukla and that there was no substance in his claim for an order of discharge by the Special Magistrate, Lucknow. One of the points raised in the revision before the Sessions Judge was that the pardon granted by the Sub Divisional Magistrate, Karolbagh was itself invalid and illegal because within the meaning of Section 337 (1) of the Code of Criminal Procedure such a pardon could be granted only in the course of an inquiry contemplated by Chapter XVIII of the Code of Criminal Procedure and not a limited inquiry envisaged by Section 202 of the Code of Criminal Procedure. This contention, however, was not accepted by the learned Sessions Judge who held that the pardon could be validly granted by a Magistrate holding an inquiry Under Section 202 of of the Code of Criminal Procedure and its scope was not limited to an inquiry contemplated under Chapter XVIII of the Code. This point is canvassed before this Court also and for reasons which I shall shortly outline I am in agreement with the view taken by the learned Sessions Judge in this respect.

(2.) UPON rejection of the revision by the learned Sessions Judge B. M. Lamba comes to this Court in revision. The revision is resisted on behalf of opposite parties firstly on the ground that the pardon granted by the Sub Divisional Magistrate, Karolbagh was invalid, being without jurisdiction as the inquiry contemplated by Section 337 (1) of the Code of Criminal Procedure is the inquiry held under Chapter XVIII of the Code and does not cover an inquiry Under Section 202 of the Code of Criminal Procedure. Another submission made on behalf of the opposite parties is that even if the pardon granted by the Sub Divisional Magistrate to Lamba may be held to be valid Under Section 337 (1) of the Code it afforded him protection against a criminal prosecution only with respect to the offence in the inquiry of which the pardon was granted and did not provide immunity against prosecution with respect to the criminal case pending before the Special Magistrate at Lucknow. To take up the first argu- ment first, the wordings of Section 337 (1) of the Code of Criminal Procedure-are as follows; 337 (1), In the case of any offence triable exclusively by the High Court or Court of Session, or any offence punishable with imprisonment which may extend to seven years or any offence under any of the following sections of the Indian Penal Code, namely, Sections 161, 165, 165-A. 216-A, 369, 401, 435 and 477-A, the District Magistrate, a Presidency Magistrate, a Sub-Divisional Magistrate or any Magistrate of the first class may, at any stage of the investigation or inquiry into, or trial of the offence, with a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in or privy to the offence, tender a pardon to such person on condition of his making a full and true disclosure of the whole of the circumstances within his knowledge relative to the offence and to every other person concerned whether as principal or abettor, in the commission thereof. Inquiry' has been defined Under Section 4 (k) of the Code as including every inquiry other than a trial conducted under this Code by a Magistrate or Court. Section 202 (1) of the Code reads:

(3.) IN the case of Queen-Empress y. Ganga Charan (1889) ILR 11 All 79 it was observed that the wordings of Sub-section (2) of Section 337 'every person accepting a tender under this section shall be examined as a witness in the case' mean that for all purposes (subject to failure to satisfy the conditions of the pardon as provided for by Section 339) such a person ceases to be triable for the offence or offences under inquiry or (with reference to Section 339) for 'any other offence of which he appears to have been guilty in connection with the same matter. ' This question was considered by the Supreme Court also in the case of The State v. Hiralal Girdharilal Kothari I am respectfully of the view having regard to the language of Section 339, which to my mind provides the cue to the scope of the pardon granted Under Section 337 (1) of the Code, that such a pardon protects the person concerned not only against prosecution for the offence in which the pardon was granted but also from prosecution for any other offence of which he appears to have been guilty in connection with the same matter. The question therefore is whether the offence with which B. M. Lamba is charged before the Special Magistrate, Luck-now can be regarded as an offence connected with the same matter in which the pardon was granted to him by the Delhi Court. The prosecution case with regard to the case pending in the Lucknow Court has been summarised in the charge sheet as follows: