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National Investigation Agency, Hyderabad, Represented by its Superintendent of Police & Chief Investigating Officer, Bengaluru v/s Mohammed Ayub @ Minto Ayub


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    Criminal Appeal No. 454 of 2018

    Decided On, 07 December 2018

    At, High Court of Karnataka

    By, THE HONOURABLE MR. JUSTICE K.N. PHANEENDRA & THE HONOURABLE MR. JUSTICE K. SOMASHEKAR

    For the Appellant: Prasanna Kumar, Special Public Prosecutor for NIA. For the Respondent: Yaseen Saleha, Advocate.



Judgment Text

K.N. Phaneendra, J.

The Trial Court has passed an order under section 306 of Criminal Procedure Code, 1973 on an application filed by the appellant herein who was the complainant in Special C.C. No. 223/2017 on the file of the XLIX Additional City Civil Judge and Special Judge for NIA cases. Appeal provision is provided under section 21 of the National Investigation Agency Act, 2008, which reads as follows:

"21. Appeals. - (1) Notwithstanding anything contained in the Code, an appeal shall lie from any judgment, sentence or order, not being an interlocutory order, of a Special Court to the High Court both on facts and on law.

(2) Every appeal under sub-section (1) shall be heard by a Bench of two Judges of the High Court and shall, as far as possible, be disposed of within a period of three months from the date of admission of the appeal.

(3) Except as aforesaid, no appeal or revision shall lie to any Court from any judgment, sentence or order including an interlocutory order of a Special Court.

(4) Notwithstanding anything contained in sub-section (3) of Section 378 of the Code, an appeal shall lie to the High Court against an order of the Special Court granting or refusing bail.

(5) Every appeal under this section shall be preferred within a period of thirty days from the date of the judgment, sentence or order appealed from:

Provided that the High Court may entertain an appeal after the expiry of the said period of thirty days if it is satisfied that the appellant had sufficient cause for not preferring the appeal within the period of thirty days:

Provided further that no appeal shall be entertained after the expiry of period of ninety days."

Therefore, it clearly goes to show that an appeal shall lie from any judgment, sentence or order not being an Interlocutory order of Special Court to the High Court, both on facts and on law. Even sub-section (3) of Section 21 also says that except as aforesaid, no appeal or revision shall lie to any Court from any judgment, sentence or order including an Interlocutory order of a Special Court.

2. It is worth to mention here, a decision of the Full Bench of the Hon'ble Apex Court in the case of State of Uttar Pradesh v. Kailash Nath Agarwal and Others AIR 1973 SC 2210 :1973(3) SCR 728 :1973 Cri. L.J. 1196 (SC), (1973)1 SCC 751), wherein the Hon'ble Apex Court while dealing with the old provisions of sections 337 and 338 of Cr. P.C., 1973 which governs the procedure regarding tender of pardon by the Magistrates, has held that, any order passed by the Magistrate on the application for tendering pardon, is not an interlocutory order and the same is revisable. At paragraphs 20 and 21, the Hon'ble Apex Court has dealt with this particular aspect, which reads thus:

"20. The further question is whether the State should have filed a revision against the order of the Magistrate, dated September 27, 1965, refusing to grant pardon instead of approaching the District Magistrate for the same purpose. This raised the question whether an order refusing to grant pardon is revisable? The High Court has taken the view that the said order is revisable and that the State, if it was aggrieved, should have filed a revision before the Sessions Judge. We have already referred to the fact that the first respondent had filed a revision before the Sessions Court against the order of the District Magistrate, dated June 1, 1966. This revision has been held by the High Court to be a proper one. As we have held that the District Magistrate has got concurrent powers and that he can be approached under Section 337 even after the Magistrate enquiring into the offence has declined to grant pardon, the question whether the State should have filed a revision against the order of the Magistrate becomes really academic. On the view expressed by us, the State was justified in approaching the District Magistrate even after the Magistrate had refused to grant pardon.

21. However, the question regarding the revisability of an order granting pardon arises regarding the competency of the revision filed by the first respondent before the Sessions Court challenging the order of the District Magistrate, dated June 1,1965. Section 435, which deals with the power to call for the records of inferior Courts, takes in the High Court, Sessions Judge, District Magistrate and any Sub-Divisional Magistrate empowered by the State Government in that behalf. The power is given to call for and examine the records of any proceedings before any inferior Criminal Court for the purpose of satisfying itself as to the correctness, legality or propriety of "any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of such inferior Court "In our opinion, an order granting pardon under Section 337 or 338 is certainly an order recorded or passed and the Revisional Court has got jurisdiction to consider the correctness, legality or propriety of such an order. At any rate, tender of a pardon is certainly a proceeding of a Criminal Court. The revising authority can call for the records to satisfy itself as to the regularity of any proceedings of an inferior Criminal Court. It should also be noted that sub-section (1-A) of Section 337 imposes an obligation on the Magistrate tendering pardon to record his reasons for so doing. Whether a Revisional Authority will interfere with the order of an inferior Criminal Court tendering pardon, is altogether a different matter. That does not mean that Revisional Court has no jurisdiction to entertain a revision against an order granting pardon.”

3. On a plain reading of the above said provision, it clearly discloses that no appeal or revision shall lie against an interlocutory order passed by the Special Court. In an application filed under section 306 of Cr. P.C., 1973 a substantive right was claimed by the complainant to bring one of the witnesses as an approver to the case so as to prove its case during the course of the trial against the accused persons. This right of filing the application under Section 306, in our opinion is a substantive claim as per the provision under section 306 of Cr. P.C., 1973 The consequence of allowing the application or dismissing the application is a decisive factor so far as such right is concerned, to consider whether it is an interlocutory order or it really affects the right of any person. Dismissal of the application consequently, completely wash out the right of the complainant or the person who seeks to bring that man as an approver to the Court. Allowing of the said application also benefits the claimant, so that he will not become an accused in the given case.

4. Therefore, in either of the way, we are of the opinion that the right of the complainant and right of the proposed person who would like to tender pardon are taken away by passing any order on the application under section 306 of Cr. P.C., 1973 Therefore, we are of the considered opinion that the said order impugned in this appeal is not an interlocutory order and the said order affects the rights of the parties. Therefore, the appeal is maintainable.

5. Now coming to the merits of this particular case, the complainant in Special C.C. No. 223/2017 has in fact laid a charge-sheet against as many as 3 accused persons alleging serious offences under Sections 16,18,18-B and 20 of Unlawful Activities (Prevention) Act, 1967 Section 120B read with Sections 465, 468 and 471 of IPC and also Sections 3, 4 and 5 of Explosive Substances Act, 1908 read with section 23 of Unlawful Activities (Prevention) Act, 1967 and also under Section 120-B of IPC read with Section 4 of Prevention of Damage to Public Property Act, 1984. Serious allegations are made against all the accused persons. The application was filed stating that one Mohammed Ayub was also indulged in the above said activities with other accused persons and he also virtually participated in facilitating the commission of the offence by other accused persons. Further to some extent, he had also knowingly or unknowingly indulged himself in supporting the other accused persons in committing such offences. Therefore, the complainant-appellant wanted to bring this man as an approver, who has also readily accepted and agreed voluntarily for the same. Hence, the complainant requested the Court to treat that man as an approver under section 306 of Cr. P.C., 1973 and to record his evidence before the Court whether to treat him as an approver or not. The said application in fact was not contested by other accused persons and in fact the said Mohammed Ayub had also readily and voluntarily accepted to divulge all the truth before the Court with regard to the alleged offences by all the accused persons. Even before this Court, after filing of the petition, notice was ordered to the respondent-Mohammed Ayub and he is represented by his Counsel Sri Yaseen Saleha. The learned Counsel Sri Yaseen Saleha has fairly conceded before the Court that he has absolutely no objection to allow the application filed under section 306 of Cr. P.C., 1973 by the complainant and submitted that Mohammed Ayub would divulge all the truth before the Court while considering his application under section 306 of Cr. P.C., 1973

6. Though nobody has contested the application, the Trial Court after hearing in detail on two grounds, has rejected the said application. It is worth to note here that up to paragraph 11, the Trial Court has narrated the factual aspects of the case and has referred to a decision cited by the learned Counsel for the complainant in this regard. Ultimately at paragraph 13, the Court has observed that the said Mohammed Ayub in respect of whom the pardon is sought is said to have been involved in six similar cases, that is bomb blast cases which took place all over Southern India and it is also observed that the said Mohammed Ayub has also sent some messages to some people pertaining to the bomb blasting at Mysore, etc. The Court after appreciating the factual aspects, has come to the conclusion that the said Mohammed Ayub cannot be tendered with pardon for the reason that, he is involved in six other similar cases in the same modus operandi of bomb blast. The Court has observed that it was quite possible that he might not be able to tell the whole truth for the reason that, he may be under constant pressure of police. It is needless to mention that speaking of truth is sine qua non under section 306 of Cr. P.C., 1973

7. The above said observation, in our opinion, is baseless. It is but premature for the Court to come to such a conclusion that he may not divulge the whole truth. There is no compulsion by the Court or by the complainant to give evidence before the Court, even according to section 306 of Cr. P.C., 1973 It is virtually the voluntariness of one of the accused or any person who is directly or indirectly connected with the offence or having a privy to the alleged offences to give such statement. If he volunteers for the purpose of giving information about the alleged offences, in such an eventuality, the Court without examining him or providing an opportunity to give evidence before the Court, cannot jump to such conclusion that the said statement was not voluntary and he would not divulge any truth before the Court. Whether he divulges the whole truth or not, is a question of fact which would arise after looking into the evidence after providing opportunity to give such statement by the said person before the Court and, after giving him a pardon. In this context, the learned Counsel for the appellant has relied upon a decision in the case of State of Rajasthan v. Balveer alias Balli and Another AIR 2014 SC 1117 : 2014 Cri. L.J. 314 (SC): 2014(133) AIC 148 (SC): IX(2013) SLT 402, (2013)16 SCC 321. The relevant paragraphs are paragraphs 22, 23 and 24, which read as follows:

"22. The first question that we have to decide is whether the High Court is right in coining to the conclusion that for being an approver within the meaning of section 306 of Cr. P.C., 1973 a person has to inculpate himself in the offence and has to be privy to the crime, otherwise he removes himself from the category of an accomplice and places himself as an eye-witness. section 306 of Cr. P.C., 1973 provides that with a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in or privy to an offence, the Magistrate may tender a pardon to such person on condition of his making a full and true disclosure of the whole circumstances within his knowledge relating to the offence and to every other person concerned, whether as principal or abettor, in the commission thereof.

23. This Court in Suresh Chandra Bahri v. State of Bihar, 1995 Supp. (1) SCC 80, explained the object of section 306 of Cr. P.C., 1973 in the following words: (SCC p. 106, para 42)

"42.... The object of Section 306 therefore is to allow pardon in cases where heinous offence is alleged to have been committed by several persons so that with the aid of the evidence of the person granted pardon the offence may be brought home to the rest. The basis of the tender of pardon is not the extent of the culpability of the person to whom pardon is granted, but the principle is to prevent the escape of the offenders from punishment in heinous offences for lack of evidence. There can therefore be no objection against tender of pardon to an accomplice simply because in his confession, he does not implicate himself to the same extent as the other accused because all that Section 306 requires is that pardon may be tendered to any person believed to be involved direct or indirectly in or privy to an offence."

24. Thus, the High Court failed to appreciate that the extent of culpability of the accomplice in an offence is not material so long as the Magistrate tendering pardon believes that the accomplice was involved directly or indirectly in or was privy to the offence. The High Court also failed to appreciate that section 133 of the Indian Evidence Act, 1872 provides that an accomplice shall be a competent witness against an accused person and when the pardon is tendered to an accomplice under section 306 of Cr. P.C., 1973 the accomplice is removed from the category of co-accused and put into the category of witness and the evidence of such a witness as an accomplice can be the basis of conviction as provided in Section 133 of the Evidence Act."

8. On a meaningful reading and understanding of the observation made by the Apex Court, it is clear that the person who seeks for pardon need not be an accused or he need not inculpate himself in the offence but however, he has to be privy to the crime or he has any connection directly or indirectly concerning the offence. In such an eventuality, the Magistrate may tender pardon to such person on condition provided under section 306 of Cr. P.C., 1973 Normally, the tender of pardon has to be granted unless the Court comes to a conclusion that there is any external pressure on the said person to give such statement inculpating himself. Such factual aspects can only be ascertained after the Court examines that particular person to ascertain whether the statement made by that person is voluntary or it is prompted by any external coercion, or force by anybody, or he divulged the true facts of the case.

9. Before adverting to the particular aspects of this case, we also feel it necessary to find out what is the procedure that the Magistrates have to follow with regard to tender of pardon to accomplice.

10. It is worth to refer here to the provisions of sections 306,307 and 308 of Cr. P.C., 1973 which deal with the tender of pardon and trial of person not complying with the condition of pardon. The said provisions reads thus:

"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 anytime 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 Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to 1[imprisonment for life], or to such punishment as is hereinbefore mentioned. Attempts by life convicts. - 2[When any person offending under this section is under sentence of 1[imprisonment for life], he may, if hurt is caused, be punished with death. (Section 307 of IPC)

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 by wilfully concealing anything essential or by giving false evidence, not complied with 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."

11. On meaningful reading and understanding of the above said provision, it is clear that any person can seek for tender of pardon, but the condition is that, he should have been directly or indirectly concerned in or privy to an offence for which the tender of pardon is sought. If such application is filed either by the co-accused or by any such person, the Magistrate has to record his reasons for so tendering pardon and whether the tender of pardon was necessary in the said case or not. In that eventuality, he has to see only whether the said person was directly or indirectly concerned in or privy to an offence to which the provision applies and that the pardon can be granted with a condition that the said person should make a full and true disclosure of the whole of the circumstances within his knowledge relating to the offences and to every other person concerned, whether as principal or abettor, in the commission thereon. With such condition, the person who requests for pardon shall be examined under sub-section (4) of section 306 of Cr. P.C., 1973 in the Court and thereafter, the Magistrate has to ascertain whether the conditions imposed upon the accused are fulfilled on going through the statement made by the accused.

12. section 308 of Cr. P.C., 1973 also provides that if for any reason the person who has accepted the tender of pardon under section 306 of Cr. P.C., 1973 if the Public Prosecutor certifies that in his opinion, that the said person has willfully concealed anything or by giving false evidence not complied with the condition on which the tender was made in such an eventuality, the pardon granted to him can be cancelled and the said person may be tried as an accused in the said case and also he can be tried for giving false evidence. Further, if any statement is made by such person, accepting the tender of pardon and his statement is recorded, it can be used as evidence against him in such trial, as if evidence given by him in that particular case.

13. Therefore, it is clear from the above said provisions that if a person has sought for tender of pardon, if he knows directly or indirectly, the whole or part of truth of the said case and once he comes before the Court to disclose the same, generally, the Court should grant, the pardon as prayed for, subject to other conditions contained in the other provisions. Only after tender of pardon under section 306 of Cr. P.C., 1973 and recording his statement after examination, the Court can pass an appropriate order under section 308 of Cr. P.C., 1973 if necessary. Otherwise, the said tender of pardon shall be continued.

14. In this particular case, though the said person Mohammed Ayub was said to have been involved in six other similar bomb blast cases, that itself is not sufficient to draw an inference at this stage that he may not divulge the whole truth pertaining to this particular case. Therefore, in our opinion, the said observation made by the Trial Court is too premature and without any basis. The Court has to consider all those things, only after tendering pardon and examining the said person to ascertain whether tender of pardon can be continued to him or not. It is also worth to mention here that even after following the procedure under section 306 of Cr. P.C., 1973 if the Court comes to the conclusion that no truth has been revealed from the said person or during the course of following the procedure if the Court comes to the conclusion that there was any external pressure or coercion from any comer, then also the Court at any stage of the proceedings under section 308 of Cr. P.C., 1973 can withdraw that pardo

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n given to the said person and he can be cited either as an accused or as a witness to the case. 15. It is also a notable point in this particular case that this person has already been examined by the Court under section 164 of Cr. P.C., 1973 With all curiosity, in order to ascertain as to what statement he has given before Court, we have secured the statement recorded by the Trial Court, of the said Mohammed Ayub under section 164 of Cr. P.C., 1973 which was sent by the Trial Court in a sealed cover. After opening the sealed cover before this Court, we have carefully examined the contents of the said statement. On an overall reading of the entire statement, it revealed to us that Mohammed Ayub has given a statement that he has got direct and indirect connection with reference to the offences alleged against other accused persons. In one paragraph of the statement, he has gone to the extent of stating that one of the I accused had come to his house and stayed in a particular room and he I prepared bomb in the said room. Therefore, this clearly discloses that, he has I already divulged whatever he wanted to divulge before the Court under I section 164 of Cr. P.C., 1973 Therefore, even by tendering pardon, it makes no I difference, on the other hand, it would strengthen the case of the prosecution, I and if this witness deviates from his statement, a case for perjury can be I initiated against him, apart from citing him as an accused in connection with I the said case in which he has given such statement. 16. Under the above said circumstances, we do not find any strong reasons to sustain the order passed by the Trial Court. On the other hand, the Trial Court ought to have allowed the application by tendering pardon and followed the procedure as contemplated under section 306 of Cr. P.C., 1973 to find out whether conditions of tender of pardon have been complied or not. Prematurely dismissing the application in our opinion, is not proper and correct. In the above said circumstances, we proceed to pass the following: ORDER The appeal is allowed. The order passed by the Trial Court in Spl. C.C. No. 223/2017, dated 13-11-2017 by the XLIX Additional City Civil Judge and Special Judge for NIA cases, is hereby set aside. Consequently, the application filed under section 306 of Cr. P.C., 1973 is restored with a direction that the same has to be dealt with by the Trial Court, by providing an opportunity to the complainant and the person who sought for tendering of pardon, in accordance with law, in the light of the observations made in the body of this order. The statement under section 164 of Cr. P.C., 1973 sent to this Court in a sealed cover shall be transmitted back to the Trial Court in a sealed cover, forthwith.
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