Jharkhand High Court: A Division Bench of H.C. Mishra, Rajesh Kumar, JJ., while dismissing the present appeal, discusses the power of Court to tender pardon under Sections 306 and 307 Criminal Procedure Code, 1973.
- That the case relates to an occurrence dated 9-07-2008, when in a prize distribution function in a high school at village Bundu, the local MLA and three persons were killed, including a child of the school, in indiscriminate firings made by the extremists belonging to CPI (M) Party.
- That a case was registered under Sections 302 / 34 of the Penal Code, 1860, read with Section 120-B of the Penal Code, 1860, Sections 18,19 and 20 of the Unlawful Activities (Prevention) Act, 1967 and Section 25(1-B) of the Arms Act.
- That subsequently the investigation was handed over to the National Investigation Agency (NIA) and a chargesheet was submitted by it.
- That the appellant was apprehended, who confessed his guilt and also consented to making a full and true disclosure of the whole of the circumstances relating to the offence and about the involvement of the other culprits belonging to CPI (M) Party, by whom the offence was committed.
- That the appellant has also been made approver in the present case and was tendered pardon by the NIA Court, which he voluntarily accepted.
- That the appellant prayed for bail, but the NIA Court, taking into consideration the provisions under Section 306 (4) (b) of the CrPC, rejected the application of the appellant by the impugned order dated 06-07-2019. Hence this appeal under Section 21(4) NIA Act, 2008.
Counsel for the appellant, Jitendra Shankar Singh has submitted that the impugned order passed by the NIA Court is absolutely illegal and cannot be sustained in the eyes of law, in as much as, the NIA Court is a Court of Session and in the present case, Section 306 of the CrPC, has no application, rather the case of the appellant shall be governed by Section 307 of the CrPC, in which there is no embargo as in Section 306 (4) (b) of the CrPC Counsel for the appellant accordingly submitted that since the appellant has already been tendered pardon by the Court, he is entitled to be released on bail.
Counsel for the NIA, Rohit Ranjan Prasad, on the other hand, has opposed the prayer and submitted that the NIA Court is the original Court and accordingly, the case of the appellant shall be governed by Section 306 of the CrPC, wherein sub-Section (4)(b) provides that the person accepting the tender of pardon, if in custody, shall be detained in custody, until the termination of the trial, and as such, there is no illegality in the impugned order passed by the NIA Court, and the appeal is fit to be dismissed.
The Court reproduced Section 306 and Section 307 CrPC, 1973 and simplified the same by stating,
“Section 306 lays down the procedure to be followed while tendering the pardon when the case is pending in the original Court of trial, i.e., the Court of the Chief Judicial Magistrate or a Metropolitan Magistrate or the Magistrate of first class, as the case may be.” and the person accepting such tender of pardon, if in custody, shall retain such status until the termination of trial. With respect to Section 307 CrPC, the Court said, “this provision relates to the Courts to which the case is committed by the original Court, and this power can be exercised only after the case is committed to that Court by the Magistrate. (…) It separately does not lay down the detailed procedure to be followed while tendering the pardon, as has been done in Section 306 of the CrPC nor does it mention about the Court of Session, rather it only refers to the Courts to which the commitment is made. However, since the cases are committed to the Court of Session by the Magistrate, it is submitted by learned counsel for the appellant that Section 307 of the CrPC, relates to the Court of Session, and since the NIA Court is also a Court of Session, the pardon tendered by it shall be governed by Section 307 of the CrPC, and not by Section 306 (4) (b) of the CrPC” With respect to the said argument the Court conclusively remarked, “(…) since this is a special offence triable before the Special Court of NIA, there is no question of commitment of the case to that Court, rather the NIA Court exercises the original jurisdiction for trial of the offence, and accordingly, the NIA Court exercises the power under Section 306 of the CrPC, while tendering pardon”
The Court said that, even otherwise, the Court to which the commitment is made has to abide by the procedure laid down under Section 306 CrPC as clarified by the expression “tender a pardon on the same condition to such person”. Additionally, the Court observed that in the given facts and circumstances, NIA Court operated both as a Court of Sessions Judge and that of a Magistrate.
In pursuance of its above-mentioned observation, the Court cited the case of; Bangaru Laxman v. State, (2012) 1 SCC 500, “Thus, on a harmonious reading of Section 5(2) of the PC Act with the provisions of Section 306, specially Section 306(2)(a) of the Code and Section 26 of the PC Act, this Court is of the opinion that the Special Judge under the PC Act, while trying offences, has the dual power of the Sessions Judge as well as that of a Magistrate. Such a Special Judge conducts the proceedings under the court both prior to the filing of charge sheet as well as after the filing of charge-sheet, for holding the trial.”
The Court further placed reliance on the case of; Suresh Chandra Bahri v. State of Bihar, 1995 Supp (1) SCC 80, so to emphasize the object of not granting bail in the given facts, “The dominant object of requiring an approver to be detained in custody until the termination of the trial is not intended to punish the approver for having come forward to give evidence in support of the prosecution but to protect him from the possible indignation, rage and resentment of his associates in a crime whom he has chosen to expose as well as with a view to prevent him from the temptation of saving his one time friends and companions after he is granted pardon and released from custody. It is for these reasons that clause (b) of Section 306(4) casts a duty on the court to keep the approver under detention till the termination of the trial and thus the provisions are based on statutory principles of public policy and public interest, violation of which could not be tolerated.
While dismissing the present appeal on lack of merits, the Court emphasized the settled precedents and the role of Special Courts while exercising power under Section 306 CrPC. [Tipru Buruma v. National Investigation Agency, Cr. Appeal (DB) No. 790 of 2019, decided on 10-10-2020]
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