KAUSHAL KUMAR PATHAK Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) THE petitioner was one of the five accused persons who was being tried before the learned Judge, 1st Special Court at Alipore in Special Case No. 6 of 1998 under Section 120B/420/467/468/471 IPC and under Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988. Before the learned Magistrate the petitioner made a statement inculpatory under Section 164 Cr.P.C. and thereafter prayer was made before the learned Magistrate by the petitioner under Section 306 Cr.P.C. for grant of pardon. The learned Magistrate granted pardon but the order was set aside by this court in CRR No. 628 of 2000 with CRR No. 1159 of 2000 and CRR No. 1160 of 2000 on 6th of December, 2001 holding that when a case is triable by a Special Judge the Metropolitan Magistrate has no jurisdiction to grant pardon. The case was then forwarded to the learned Judge, First Special Court, Alipore for trial after the charge sheet was submitted. Now, before the learned Judge the petitioner again made an application for grant of pardon. The petition was objected to by the learned advocate for the CBI in the trial court on the ground that the prosecution was not agreeable to the grant of pardon to the petitioner because petition was filed after a gap of six years only on 28th of April, 2008. Learned Judge observed that such delay was not on account of the petitioner but was on account of one accused Arun Agarwal moving the Hon'ble Supreme Court for discharge in his favour and the learned Judge could not proceed with the case further on that ground. However, the learned Judge observed that in view of 'dogmatic approach' of the CBI he was not allowing the prayer of the petitioner for grant of pardon.

(2.) THE petitioner has come up with the application under Section 482 Cr.P.C. to challenge this order of the learned Judge, 1st Special Court, Alipore contending that the learned Judge committed illegality in refusing to grant pardon because the petitioner was granted pardon by learned Magistrate earlier but only because of the fact that the learned Magistrate was incompetent to accept the pardon the order was set aside. The petitioner made a fresh application before the learned Special Judge and furthermore in his 164 Cr.P.C. statement the petitioner made full disclosure about the commission of the offence which is absolutely inculpatory and in view of these circumstances refusal of the prayer for grant of pardon was unjustified. Further it is submitted by Mr. S.S. Roy, learned advocate appearing for the petitioner that the provision of Section 306 of the Cr.P.C. does nowhere say that the grant of pardon is dependent upon the objection or no objection of the prosecution. Mr. Roy further submits that the period of six years as has been ventilated by the learned advocate for the CBI in the trial court was not a period of silence made by the petitioner.

(3.) IN view of the learned Public Prosecutor opposing the application for grant of pardon the learned Judge rightly rejected the prayer although it could not be understood what the learned Judge means to convey by the word 'dogmatic approach'. Accordingly, application is dismissed.