HARCHAND Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This petition under Sec. 482 Crimial P.C. has been preferred for preventing abuse of the process of the Court of learned Additional Sessions Judge, Kishangarhbas, Alwar and to secure ends of justice in the following circumstances:

(2.) On May 9, 1993 one Shri Harchand lodged a report requesting the police to conduct an enquiry into the causes of death of one shri Himmat. Thereafter, on May 13,1993 another F.I.R. was lodged by one Shri Babu Lal who happened to be the brother of the deceased Shri Himmat aforesaid. On the basis of the First Information Report lodged by Shri Babu Lal, Crime No. 69/93 was registered at Police Station Tijara, Dist. Alwar. In the said case, 6 persons including Shri Bahadur respondent No. 2 herein were arrayed as accused. The case was investigated and a report under Sec. 173 Crimial P.C. for commission of the offence punishable under Sec. 302 read with Sec. 147 and 149 Penal Code was submitted that in the court of Munsif and Judicial Magistrate Tijara. It further appears that during the pendency of the enquiry proceedings before the learned Magistrate, the prosecution requested the learned Magistrate to grant pardon to Bahdur, co-accused under Sec. 306 Crimial P.C. The learned Magistrate granted pardon without recording the statement of the said co-accused Bahdur, committed the case to the court of learned Sessions Judge. Such an order of committal passed by the Magistrate was challenged in this Court by way of a petition under Sec. 482 Crimial P.C. bearing S.B. Cr. Misc. Petition No. 1572/93. This court vide its order, in Dharamveer Vs. State, R.C.C. Nov. 1994 p. 613 set-aside the committal proceedings and directed the learned Magistrate to proceed in accordance with law. Thereafter, the learned Magistrate examined Shri Bahadur under Sec. 306 Crimial P.C. and again committed the case to the Court of Session. The Court of Session took cognizance of the case and examined all the prosecution witnesses including Shri Bahdur co-accused as approver in this case. It is reported that the trial has been concluded and the parties have also been heard finally and judgment is to be pronounced in the case. It was of this point of time that the learned Additional Sessions Judge appears to have passed the impugned order whereby he granted pardon to Bahdur as per provisions of Sec. 307 Crimial P.C. and directed his examination to be recorded afresh as approver. Not only the legality and validity of such an order passed by the learned Additional Sessions Judge has been seriously challenged by the learned counsel for the petitioner but also it has been vehemently urged that the impugned order as passed by the learned Additional Sessions Judge clearly amounts to the abuse of the process of the Court and in order to secure the ends of justice, the said order ought to be set aside by this Court in exercise of the powers under Sec. 482 Crimial P.C.

(3.) It is well settled principle that the powers under Sec. 482 Crimial P.C. should be exercised by the High Court sparingly in rarest of rare cases. Such powers are to be exercised with a view to prevent the abuse of the process of the court and where it is necessary to exercise such powers to secure the ends of justice. In the instant case, it is the undisputed position that on the basis of pardon having been granted to Bahadur by the committing Magistrate in accordance with the provisions of Sec. 306 Crimial P.C. he was examined as a witness at the trial by the learned Additional Sessions Judge. Once Shri Bahadur had been examined as a witness in the case after having being granted pardon under Sec. 306, the learned Additional Sessions Judge had no jurisdiction again to consider the question of granting pardon to him under Sec. 307 Crimial P.C. The question of exercising powers by the Court of Session to whom the case has been committed by the Magistrate arises only when pardon had not been granted by the Magistrate under Sec. 306 Crimial P.C. It may happen that at the stage of trial, the prosecution may satisfy the trial court that in order to arrive at the truth. In the case, It was necessary to grant pardon to a co-accused and the trial court, being the Sessions Court, may grant pardon to one of the accused. But when such pardon had already been granted to Bahadur by the learned Magistrate under Sec. 306 Crimial P.C. and Bahadur had also been examined as approver in the case on the basis of pardon so granted to him, the learned Sessions Judge had no powers to be exercised under Sec. 307 Cr.P.C for doing the same thing which had already been done by the learned Magistrate in the case. To consider the question of granting pardon to Bahadur under Sec. 307 Crimial P.C. at a stage when the trial had already been concluded and the parties were heard by the learned Additional Sessions Judge Certainly amounts to the abuse of the process of the Court and in order to secure the ends of justice, it is necessary that the impugned order should be quashed. Therefore, the impugned order is hereby quashed and the learned Sessions Judge is directed to pronounce the judgment when he had already heard the parties. Petition allowed.