PRABHAT RANJAN SARKAR Vs. STATE OF BIHAR

JUDGEMENT

(1.) THESE two criminal miscellaneous petitions arise out of one commitment order dated the 22nd November. 1972, passed by Shri R. P. Srivastava. Special Munsif -- Magistrate. Patna. Both these petitions were heard together, and therefore this Judgment will govern both these cases.

(2.) BY an order dated the 22nd November. 1972 the committing Magistrate committed the petitioners in both these cases that is. in Criminal Miscellaneous Nos. 5 and 26 of 1973. to stand their trial before the Sessions Court. Against that order the petitioners have moved these two petitions for quashing the commitment order under Section 561A of the Code of Criminal Procedure (hereinafter referred to as 'the Code').

(3.) THE other contention of the learned Counsel for the petitioners is that the impugned order of the District Magistrate is illegal because he failed to record his reasons while granting pardon, In the above mentioned case, the Supreme Court held that Sub-section (1A) of Section 337 of the Code makes it obligatory on the Magistrate tendering pardon to record his reasons for so doing. In my opinion, it is imperative on the part of the Magistrate granting pardon to record the reasons for so doing. If the reasons are not recorded the order of the Magistrate will not be a 'speaking order. If it is not a 'speaking order', it will be difficult for the revising Court to revise the order in the absence of the reasons. In my opinion Sub-section (1A) of Section 337 is a mandatory provision. If the Magistrate granting pardon does not assign any reason the whole order of the Magistrate can be quashed on this ground alone. If the validity of the pardon is challenged at a very early stage, it is the duty of the Court to get the illegality cured. In this connection, the decision of the Supreme Court in H. N. Rishbud v. State of Delhi is relevant. In that decision, the Supreme Court held as follows at p. 1164: When the attention of the Court is called to such an illegality at a very early stage it would not be fair to the accused not to obviate the prejudice that may have been caused thereby by appropriate orders at that stage but to leave him to the ultimate remedy of waiting till the conclusion of the trial and of discharging the somewhat difficult burden under Section 537 of the Code of Criminal Procedure of making out that such an error has in fact occasioned a failure of Justice. It is, therefore clear that if the breach of such a mandatory provision is challenged at the earliest stage it is the duty of the Court to rectify such error. THE decision would be quite different if such an error is pointed out in an appeal or revision after conviction.