BHANSINGH JUBARSINGH Vs. STATE

JUDGEMENT

(1.) THIS is a revision against an order passed by the Special Judge, Dhar on 29-11-1955.

(2.) THE petitioner, who is under suspension, is a Sub-Divisional Officer in the Public Works Department of Madhya Bharat State. He was in charge of famine relief work on the Tanda-Zirnbad road. As Sub-Divisional Officer he was entrusted with Government funds for payment to labourers. One Jai Gopal Shukla was the Sectional Officer and Nasirali was the time-keeper, both being subordinates of the petitioner. The petitioner is being prosecuted along with Jaigopal Shukla and Nasirali for misappropriating a sum of Rs. 94-8-0 by preparation of false muster-rolls. It is said that all the three had engaged in a conspiracy to misappropriate Government funds and all of them were challanged for offences under Sections 467, 471, 477a, 120-B, I. P. C. , and also under Section 5 (2) of the Prevention of Corruption Act. Accused Nasirali was produced before the Special Judge who was requested for tendering pardon to him under Section 337 of the Criminal Procedure Code. The Special Judge, Dhar tendered pardon and recorded that it was tendered under Section 337 Cr. P. C. It was contended before his successor that the pardon so tendered, being under Section 337 Cr. P. C. , is illegal as Section 337, Criminal P. C. does not empower a Special Judge to grant pardon, but empowers only a Magistrate to tender pardon. It was also pointed out that below the signatures of the Special Judge, the seal of the Sessions Judge was impressed and this also makes the pardon illegal. These contentions were repelled on 29-11-1955 by Shri R. N. Shingal, who succeeded Mr. Atal who had tendered pardon to Nasarali. The petitioner has come in revision to this Court against this order.

(3.) MR. Bhargav, learned Counsel for the petitioner, contended that the prosecution made an application for tendering pardon under Section 337, Criminal P. C. and Mr. Atal also tendered pardon under Section 337, Criminal P. C. As the section empowers only a Magistrate and not a Special Judge, this pardon must be held to be illegal. The learned Counsel also contended that the Sessions Judge is not empowered to tender pardon, and so the other mistake of putting the seal of the Sessions Judge below his signatures also makes the pardon illegal. The learned Government Advocate, in his reply, justified the order of Mr. Shingal on the ground that Section 8 (2) of the Criminal Law Amendment Act empowers a Special Judge to tender pardon; so it should be taken that the pardon was tendered by the Special Judge, Dhar, under that section and an erroneous mention of a provision of law in the order cannot invalidate the order. He also urged that Shri Atal was also the Sessions Judge at that time when he tendered pardon, and so using the seal of the Sessions Judge will not be able to vitiate the order. The learned Government Advocate also argued that in the case law under Section 337, Criminal P. C. dealing with the Magistrates it had been held practically by every High Court that even though the, tender of pardon was illegal, an approver would be considered to be a competent witness. He, therefore, emphasised the point that inasmuch as a criminal revisional Court is not a correcting Court, the revision should be dismissed.