RAVI KANT Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) THE applicants who are accused person in S.T. No. 53/82, State v. Ravi, Kant and another1 have come forward with a prayer that the entire proceedings against the applicants may be quashed. It would appear that a pardon was granted to one Naresh heating him as Approver. This pardon was granted by the Chief Judicial Magistrate before whom commitment inquiries started on 5.1.1982. I have obtained report from the Administrative office that actually notification for appointment of Special Judge under the U.P. Dacoity Affected Areas Ordinance 1981 Ravi Kant and another Vs. State of U.P. was made and the Special Judge took over there on 1-1-1982. It is submitted that such special court was created and started functioning it was the special Judge who could record any statement and grant any pardon to any approver. It is urged that such powers of pardon have been expressly conferred upon the Special Judge under Section 7(4) of the Ordinance. THE general provisions concerning pardon are contained in Section 306 Cr. P.C. Sub-Section (1) which empowers C.J.M., Metropolitan Magistrates or Magistrate of First Class to grant Pardon and Sub- clause (2) of Section 306 Cr. P.C. says that section is applicable to offences triable exclusively by court of Sessions or by court of special Judge appointed under the Criminal law. It is urged that once the court of special Judge came into existence and under Section 7(4) of the Ordinance he could grant pardon, C.J.M. should not do it. In fact, in view of the Supreme Court pronouncement, it is needless to enter into such controversy. In the Supreme Court case of THE State of Andhra Pradesh v. Cheemalpati Ganeswara Rao and another the inquiry was pending in the court of Distt. Magistrate Under Section 337(1) of the old Cr. P.C. corresponding to the present Section 306 and 307 provided for granting of pardon by the District Magistrate. It was urged before the Supreme Court that in that case as the pardon was granted by Additional District Magistrate while inquiry was pending before the District Magistrate the order granting pardon was illegal. It was also urged that the expression TDistrict Magistrate used in Section 337(1) did not include Additional District Magistrate. THE Supreme Court observed that a pardon bona fide is fully protected by the provisions of Section 529 Cr. P.C. It is a well settled law that what to say of direct observations even the obitors of the Supreme Court are binding upon all other courts. When that is the position, I must respectfully follow the proposition of law laid down in that case. I may observe further that it is not that C.J.M. was just an incompetent person not trusted by legislature to grant such pardon otherwise. In fact, he has been expressly empowered to do so under the provisions of Section 106 (1) Cr. P.C. True that later Special Court came into existence and that Special Court under the aforesaid provision had the power to grant pardon but if the C.J.M. had granted pardon bona fide, the case being then with him, irregularity, is any, will stand cured on the strength of decision of the Supreme Court under new Section 460 Cr. P.C. corresponding to old 529 Cr. P.C. and no interference is called upon.

(2.) IT was next urged that in any case the approver should not have been released from jail until the trial concluded. So far as that aspect is concerned, it will not go to the root of the matters, and if that point is in any way relevant, touching the weight of the statement of the approver, the applicants can well raise that point and argue it. That will simply concern the matter of appreciation of testimony by the trial court with which this Court is not concerned. No other point is involved. The application under Section 482 Cr. P.C. is, therefore, summarily rejected. Stay order is vacated. Petition dismissed.