93 Bomb Blast Case: Yakub Memon Death Sentence Appeal Supreme Court Judgement: Part 009

Grant of Pardon under Section 306 of the Code to Mohammed Usman Ahmed Zan Khan/(PW-2) / Approver

185) It was submitted by learned senior counsel for A-1 that TADA is a complete Code containing provisions for setting up of Designated Courts, conduct of trials, awarding of punishment etc. The said Act does not contain any provision for the grant of pardon as contained in the Code, namely, Sections 306, 307 and 308. It was submitted by learned senior counsel that the power to grant pardon is a substantive power and not a procedural power, and as such, the same has to be conferred specifically and cannot be assumed to be an inherent power of a Court. In the instant case, pardon has been granted by the Chief Metropolitan Magistrate, Bombay to PW-2 though there was no specific power of grant of pardon in TADA with the Chief Metropolitan Magistrate, and as such, the said pardon is ultra vires the scheme of TADA and the evidence of the said persons cannot be relied upon against the appellant.

186) In reply to the above contention, learned senior counsel for the CBI placed reliance on a three-Judge Bench decision of this Court in Harshad S. Mehta & Ors. vs. State of Maharashtra (2001) 8 SCC 257 wherein an identical objection was raised, namely, in the absence of specific provisions for grant of pardon, the Special Court has no power to grant pardon under Special Court (Trial of offences relating to prosecutions in Securities), Act, 1992. Taking note of various provisions of the Code, particularly, Chapter XXIV, this Court repelled the said contention. Chapter XXIV of the Code deals with general provisons as to inquiries and trials. Sections 306 and 307 of the Code deal with tender of pardon to an accomplice. Section 306 confers power upon the Magistrate and Section 307 on the Court to which commitment is made. Section 308 provides for the consequences of not complying with the conditions of pardon by a person who has accepted tender of pardon made under Section 306 or Section 307. The relevant provisions of the Code read as under:

“306. Tender of pardon to accomplice.–(1) With a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in or privy to an offence to which this section applies, the Chief Judicial Magistrate or a Metropolitan Magistrate at any stage of the investigation or inquiry into, or the trial of, the offence, and the Magistrate of the first class inquiring into or trying the offence, at any, stage of the inquiry or trial, may tender a pardon to such person on condition of his making a full and true disclosure of the whole of the circumstances within his knowledge relative to the offence and to every other person concerned, whether as principal or abettor, in the commission thereof. (2) This section applies to-

 (a) Any offence triable exclusively by the Court of Session or by the Court of a Special Judge appointed under the Criminal Law Amendment Act, 1952 (46 of 1952).

(b) Any offence punishable with imprisonment, which may extend to seven years or with a more severe sentence.

 (3) Every Magistrate who tenders a pardon under sub-section (1) shall record-

 (a) His reasons for so doing;

(b) Whether the tender was or was not accepted by the person to whom it was made, and shall, on application made by the accused, furnish him with a copy of such record free of cost.

(4) Every person accepting a tender of pardon made under sub-section (1)-

(a) Shall be examined as a witness in the court of the Magistrate taking cognizance of the offence and in the subsequent trial, if any;

(b) Shall, unless he is already on bail, be detained in custody until the termination of the trial.

(5) Where a person has accepted a tender of pardon made under sub- section (1) and has, been examined under sub-section (4), the Magistrate taking cognizance of the offence shall, without making any further inquiry in the case.

 (a) Commit it for trial-

(i) To the Court of Session if the offence is triable exclusively by that court or if the Magistrate taking cognizance is the Chief Judicial Magistrate;

(ii) To a court of Special Judge appointed under the Criminal Law Amendment Act 1952 (46 of 1952), if the offence is triable exclusively by that court;

(b) In any other case, make over the case to the Chief Judicial Magistrate who shall try the case himself.

307. Power to direct tender of pardon.–At any time after commitment of a case but before Judgment is passed, the court to which the commitment is made may, with a view, to obtaining at the trial the evidence of any person supposed to have been directly or indirectly concerned in, or privy to, any such offence, tender a pardon on the same condition to such person.

308. Trial of person not complying with conditions of pardon.(1) Where, in regard to a person who has accepted a tender of pardon made under section 306 or section 307, the Public Prosecutor certifies that in his opinion such person has, either the condition on which the tender was made, such person may be tried for the offence in respect of which the pardon was so tendered or for any other offence of which he appears to have been guilty in connection with the same matter, and also for the offence of giving false evidence:

Provided that such person shall not be tried jointly with any of the other accused:

 Provided further that such person shall not be tried for the offence of giving false evidence except with the sanction of the High Court, and nothing contained in section 195 or section 340 shall apply to that offence.

(2) Any statement made by such person accepting the tender of pardon and recorded by a Magistrate under section 164 or by a court under sub- section (4) of section 306 may be given in evidence against him at such trial.

(3) At such trial, the accused shall be entitled to plead that he has complied with the condition upon which such tender was made, in which case it shall be for the prosecution to prove that the condition has not been complied with.

(4) At such trial the court shall-

(a) If it is a Court of Session, before the charge is read out and explained to the accused;

(b) If it is the court of a Magistrate before the evidence of the witnesses for the prosecution is taken, ask the accused whether he pleads that he has complied with the conditions on which the tender of pardon was made.

(5) If the accused does so plead, the court shall record the plea and proceed with the trial and it shall, before passing judgment in the case, find whether or not the accused has complied with the conditions of the pardon, and, if it finds that he has so complied, it shall notwithstanding anything contained in this Code, pass judgment of acquittal.

In the case on hand, it was also contended that grant of pardon being a special power has to be conferred specifically. After adverting to the above mentioned provisions of the Code and in the absence of any specific exclusion or bar for the application for grant of pardon by Special Courts in the Code, in Harshad S. Mehta (supra), this Court has concluded “but it does not necessarily follow therefrom that the power to tender pardon under Sections 306 and 307 has not been conferred on the Special Court”. In para 22, the Court has held as under:

“22. The Special Court may not be a criminal court as postulated by Section 6 of the Code. All the same, it is a criminal court of original jurisdiction. On this count the doubt, if any, stands resolved by the decision of the Constitution Bench of this Court in A.R. Antulay v. Ramdas Sriniwas Nayak. In Antulay case the Constitution Bench said that shorn of all embellishment, the Special Court is a court of original criminal jurisdiction and to make it functionally oriented some powers were conferred by the statute setting it up and except those specifically conferred and specifically denied, it has to function as a court of original criminal jurisdiction not being hidebound by the terminological status description of Magistrates or a Court of Session. Under the Code, it will enjoy all powers which a court of original criminal jurisdiction enjoys save and except the ones specifically denied.”

187) Posing these questions, the Bench analysed to see whether power to grant pardon has been specifically denied to the Special Court established under the Act. The contention of the learned senior counsel was that the Act does not postulate commitment of the case to the Special Court and no provision having been inserted in the Act to empower the Special Court to tender pardon, hence, the impugned order granting pardon is without jurisdiction. In para 35, the Court has observed as under:

“35. There cannot be any controversy that there is no express provision in the Act excluding therefrom the applicability of Sections 306 and 307 of the Code. Can it be said to be so, by necessary implication, is what we have to determine.” The following conclusions are also relevant:

“51. The Code has been incorporated in the Act by application of the doctrine of legislation by incorporation. The power to grant pardon has not been denied expressly or by necessary implication. As earlier stated after decision in the case of A.R. Antulay it was not necessary to make specific provision in the Act conferring power on the Special Court to grant pardon at trial or pre-trial stage. The Special Court is a court of original criminal jurisdiction and has all the powers of such a court under the Code, including those of Sections 306 to 308 of the Code, the same not having been excluded specifically or otherwise.

52. There is no provision in the Act which negates the power of the Special Court to grant pardon. The Special Court has power to grant pardon at any stage of the proceedings. The power under Section 307 cannot be denied merely because no commitment of the case is made to the Special Court. Learned Solicitor-General, in our view, rightly contends that the other statutes are only an external aid to the interpretation and to rely upon the omission of a provision which is contained in another different enactment, it has to be shown that the two Acts are similar which is not the position here. The scheme of the two Acts is substantially different as has been earlier noticed by us. It is also evident from Fernandes case as well”.

188) After arriving at such a conclusion, the Bench, in para 55 held as under:

“55. In the present case, we are unable to find either any inconsistency or any provision which may indicate expressly or by necessary implication the exclusion of the provision of the Code empowering grant of pardon.” After saying so, the Bench concluded as under:

“62. Our conclusion, therefore, is that the Special Court established under the Act is a court of exclusive jurisdiction. Sections 6 and 7 confer on the court wide powers. It is a court of original criminal jurisdiction and has all the powers of such a court under the Code including those of Sections 306 to 308.” The above conclusion fully supports the stand taken by CBI and the ultimate decision arrived at by the Designated Court.

189) It was argued by learned senior counsel appearing for the CBI that the word ‘notwithstanding’ appearing in various provisions of TADA shows that the Code would apply to all cases unless specifically provided for in the TADA. He placed reliance on Section 4(2) of the Code which provides as follows:

“All offences under any other law shall be investigated, inquired into, tried and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences.” The other decision relied upon by learned senior counsel for the CBI to support his contention that the power of pardon does exist by necessary implication to cases under TADA is Lt. Commander Pascal Fernandes vs. State of Maharashtra & Ors. (1968) 1 SCR 695 in which question relates to tendering pardon to a co-accused under Section 8(2) of the Criminal Law Amendment Act of 1952. A three-Judge Bench of this Court, even after finding that Special Judge created under the Criminal Law Amendment Act, 1952 (Act 46 of 1952) is not one established under the Code held, “For the cases triable by Special Judges under Criminal Law Amendment Act, a special provision is to be found in Section 8(2) of that Act, for tender of pardon to an accomplice, as part of the procedure and powers of Special Judges”……….On the tender of pardon by the Special Judge the provisions of Sections 339 and 339-A of the Code will apply”.

190) It was submitted on behalf of the appellant that even if Section 306 of the Code is held to be applicable, power to grant pardon could be exercised only by the Designated Judge and not by the Chief Judicial Magistrate and as in the present case the power was exercised by the Chief Metropolitan Magistrate and not by the Deisgnated TADA Judge, the said exercise of power was illegal and renders the grant of pardon bad in law. The above contentions of Mr. Jaspal Singh, learned senior counsel for A-1 are not acceptable since several provisions in TADA clearly show that Code would apply to all cases. In view of Section 4 of the Code, trial of all offences under the Indian Penal Code or any other laws including TADA have to be investigated, enquired into, tried and dealt with according to the provisons contained in the Code which read as under:

“4.Trial of offences under the Indian Penal Code and other laws. -(1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.

(2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences.” Section 4(2) of the Code makes it clear that all the offences under any other law shall be investigated, inquired into, tried and dealt with according to the provisons of the Code but subject to specific clause/reference of the Special Act. It is also clear from Section 5 of the Code that in the absence of specific provisons in any enactment, the provisions of the Code shall govern for the purpose of investigation, enquiry etc. As per Section 2(1)(b) of the TADA, ‘Code’ means the Code of Criminal Procedure, 1973 (2 of 1974). Section 7(3) of TADA makes it clear that the provisions of the Code shall, sofaras may be and subject to such modification made in the Act, apply to the exercise of powers by the officer under sub-Section 1. Section 7(1) of TADA makes it futher clear that notwithstanding anything contained in the Code or in any other provision of this Act (TADA), the Central Government, for proper implementation of the provisions of the Act confers upon any officer, the power to investigate and proceed under the Act. As per Section 9, the Central Government or the State Government may, by notification in the Official Gazette, constitute one or more Designated Courts for such area or areas or for such class or classes or group of persons by specifying in the Notification. Procedure and power for Designated Courts have been mentioned in Section 14 of TADA. Section 14(2) makes it clear that if any offence is punishable with imprisonment for a term not exceeding three years or with fine or with both, the Designated Court may, notwithstanding anything contained in sub-Section 1 of Sections 260 or 262 of the Code, try the offence in a summary way in accordance with the procedure prescribed in the Code and the provisions of Sections 263 to 265 of the Code shall apply to such trial. Section 14(3) of TADA specifically confers upon the Designated Court all the powers that can be exercised by a Court of Sessions under the Code which includes the power to grant pardon under Section 306 of the Code. Section 14 of TADA provides as follows:

“14. Procedure and powers of Designated Courts. — A Designated Court may take cognizance of any offence, without the accused being committed to it for trial, upon receiving a complaint of facts which constitute such offence or upon a police report of such facts.

(2) Where an offence triable by a Designated Court is punishable with imprisonment for a term not exceeding three years or with fine or with both, the Designated Court may, notwithstanding anything contained in sub-section (1) of Section 260 or Section 262 of the Code, try the offence in a summary way in accordance with the procedure prescribed in the Code and the provisions of Sections 263 to 265 of the Code, shall, so far as may be, apply to such trial:

Provided that when, in the course of a summary trial under this sub- section, it appears to the Designated Court that the nature of the case is such that it is undesirable to try it in a summary way, the Designated Court shall recall any witnesses who may have been examined and proceed to re-hear the case in the manner provided by the provisions of the Code for the trial of such offence and the said provisions shall apply to and in relation to a Designated Court as they apply to and in relation to a Magistrate:

Provided further that in the case of any conviction in a summary trial under this section, it shall be lawful for a Designated Court to pass a sentence of imprisonment for a term not exceeding two years.

(3) Subject to the other provisions of this Act, a Designated Court shall, for the purpose of trial of any offence, have all the powers of a Court of Session and shall try such offence as if it were a Court of Session so far as may be in accordance with the procedure prescribed in the Code for the trial before a Court of Session.

(4) Subject to the other provisions of this Act, every case transferred to a Designated Court under sub-section (2) of Section 11 shall be dealt with as if such case had been transferred under Section 406 of the Code to such Designated Court.

(5) Notwithstanding anything contained in the Code, a Designated Court may, if it thinks fit and for reasons to be recorded by it, proceed with the trial in the absence of the accused or his pleader and record the evidence of any witness, subject to the right of the accused to recall the witness for cross-examination.

Section 18 also makes it clear that after taking congnizance of any offence, if the Designated Court is of the opinion that the offence is not triable by it or it shall notwithstanding that it had no jurisdiction to try such offence, transfer the case for the trial of such offence to any Court having jurisdiction under the Code and the Court to which the case is transferred may proceed with the trial of offence as if it had taken cognizance of the offence. Section 20 of the Act makes it clear that certain provisions of the Code are automatically applicable and the Designated Court is free to apply those provisions from the Code for due adjudication of the cases under the Act. So, from the above, it is clear that no provision of TADA is inconsistent with the provisions of the Code of Criminal Procedure, 1973, for grant of pardon as envisaged under Sections 306 to 308. While upholding the power of the special courts established under a Special Courts Act to grant pardon under Section 306 of the Code, this Court, in Harshad S. Mehta (supra) held thus:

“61. … It is also not possible to accept that it was intended by necessary implication that the Special Court under the Act shall not have the power to grant pardon. All powers of Sections 306 to 308 to the extent applicable and can be complied are available to the Special Court under the Act. The provisions of the Act and the Code can stand together. There is no inconsistency. The two statutory provisions can harmoniously operate without causing any confusion or resulting in absurd consequences and the scheme of the Code can, without any difficulty, fit in the scheme of the Act….” Further, TADA does not preclude the applicability of Section 306 of the Code. As observed earlier, Section 306(2)(b) is clear in that it is specifically applicable to instances where the offence for which an accused is being tried is punishable with imprisonment extending to seven years or more. In the instant case, the approver was accused of offences which carried the maximum punishment as capital punishment.

191) The object of Section 306 is to tender pardon in cases where a grave offence is alleged to have been committed by several persons so that the offence could be brought home with the aid of evidence of the person pardoned. The legislative intent of this provision is, therefore, to secure the evidence of an accomplice in relation to the whole of circumstances, within his knowledge, related to the offence and every other person concerned. In the light of the above analysis, we hold that the power to grant pardon under Section 306 of the Code also applies to the cases tried under the provisions of TADA and there was no infirmity in the order granting pardon to the approver (PW-2) in the facts and circumstances of the present case.

192) It is further contended on behalf of the appellant (A-1) that the deposition of PW-2 cannot be relied upon since the procedure laid down in Section 306(4)(a) of the Code was not followed. In the instance case, the CMM granted pardon to PW-2 on 28.09.1993 in compliance with the provisions of Section 306. Section 306(4)(a) requires that the Court of Magistrate taking cognizance of the offence shall examine the witness. In the instant case, where appellant has been charged with the offences under TADA, the Designated Court established under TADA alone has the jurisdiction to take cognizance of the offences under TADA. Section 14 of TADA provides that a Designated Court may take cognizance of any offence, without the accused being committed to it for trial, upon receiving a complaint of facts which constitute such an offence or upon a police report of such facts. Section 306(5) contemplates committal of a case by the Magistrate taking cognizance of the offence to the court of appropriate jurisdiction. In the instant case, there did not arise an occasion for the Magistrate to commit the case to the Designated Court by virtue of above-said provision contained under Section 14 of TADA whereby the Designated Court had jurisdiction to take cognizane and try the offences in TADA. 193) This Court, in Sardar Iqbal Singh vs. State (Delhi Admn.) (1977) 4 SCC 536 while dealing with a case where the offence was triable by the Special Judge who also took cognizance of the offence and like the present case, no committal proceedings were involved, held as under:

“5. From these provisions it would appear that where a person has accepted a tender of pardon under sub-section (1) of Section 337 at the stage of investigation in a case involving any of the offences specified in sub-section (2-B), the prosecution can file the chargesheet either in the Court of a competent Magistrate or before the Special Judge who under Section 8(1) of the Criminal Law Amendment Act, 1952 has power to take cognizance of the offence without the accused being committed to him for trial. It follows that if the Magistrate takes cognizance of the offence, the approver will have to be examined as a witness twice, once in the Court of the Magistrate and again. in the Court of the Special Judge to whom the Magistrate has to send the case for trial, but if the chargesheet is filed directly in the Court of the Special Judge, he can be examined once only before the Special Judge. This means that in a case where the chargesheet is filed in the Court of a Magistrate, the accused gets an opportunity of having the evidence of the approver at the trial tested against what he had said before the Magistrate; the accused is denied this opportunity where the chargesheet is filed in the Court of the Special Judge. Whether the accused will get the advantage of the procedure which according to the appellant is more beneficial to the accused, thus depends on the Court in which the proceeding is initiated, and, it is contended, if the choice of forum is left to the prosecution, it will result in discrimination. Mr Sen submits that the only way to avoid this position is to read sub-sections (1), (2) and (2-B) of Section 337 of the Code and Section 8(1) of the Criminal Law Amendment Act, 1952 together and to construe them in a way to require that in every case where an accomplice is granted pardon, the chargesheet must be filed in the Court of a Magistrate.

6. We are unable to accept the contention. It is clear from the scheme of Section 337 that what is required is that a person who accepts a tender of pardon must be examined as a witness at the different stages of the proceeding. Where, however, a Special Judge takes cognizance of the case, the occasion for examining the approver as a witness arises only once. It is true that in such a case there would be no previous evidence of the approver against which his evidence at the trial could be tested, which would have been available to the accused had the proceeding been initiated in the Court of a Magistrate who under sub- section (2-B) of Section 337 of the Code is required to send the case for trial to the Special Judge after examining the approver. But we do not find anything in sub-section (2-B) of Section 337 to suggest that it affects in any way the jurisdiction of the Special Judge to take cognizance of an offence without the accused being committed to him for trial. Sub-section (2-B) was inserted in Section 337 in 1955 by Amendment Act 26 of 1955. If by enacting sub-section (2-B) in 1955 the Legislature sought to curb the power given to the Special Judge by Section 8(1) of the Criminal Law Amendment Act, 1952, there is no reason why the Legislature should not have expressed its intention clearly. Also, the fact that the approver’s evidence cannot be tested against any previous statement does not seem to us to make any material difference to the detriment of the accused transgressing Article 14 of the Constitution. The Special Judge in any case will have to apply the well established tests for the appreciation of the accomplice’s evidence. This Court in Maganlal Chhagganlal (P) Ltd. v. Municipal Corporation of Greater Bombay held that the mere availability of two procedures would not justify the quashing of a provision as being violative of Article 14 and that “what is necessary to attract the inhibition of the article is that there must be substantial and qualitative difference between the two procedures so that one is really and substantially more drastic and prejudicial than the other . . .”. In our opinion, there is no such qualitative difference in the two procedures; whether a witness is examined once or twice does not in our opinion make any such substantial difference here that one of them could be described as more drastic than the other. The appeal is accordingly dismissed.

194) In view of the above discussion and the ratio decidendi of the decisions of this Court, we are of the view that the provisions of sub- Section 4 of Section 306 have not been violated and there is no illegality in not having examined the approver twice by the Designated Court. Other witnesses:

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93 Bomb Blast Case: Yakub Memon Death Sentence Appeal Supreme Court Judgement:

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