Second Application Seeking Pardon U/S 306 CrPC Maintainable Only On Changed Circumstances: Karnataka HC
Justice M. Nagaprasanna, Karnataka High Court
The Karnataka High Court has summarised the principles on pardon.
The Court held that there can be no Order directing recording of statement under Section 164 of the Criminal Procedure Code (CrPC) by the Magistrate, in the presence of an Advocate and after the case has been committed to the Sessions Court.
The Court held thus in a batch of Criminal Petitions challenging a solitary Order passed by the Sessions Judge by which pardon was granted to the accused and the Court considered him as an approver under Section 306 of CrPC.
A Single Bench of Justice M. Nagaprasanna summarised the findings as below –
(a) The second application seeking pardon under Section 306 of Cr.P.C. is maintainable, only on changed circumstances, as also, in the kind of circumstance that is projected in the case at hand.
(b) Recording of a statement under Section 164 of Cr.P.C., prior to grant of pardon, is illegal and such procedure cannot be adopted in any case, while granting pardon.
(c) The procedure of examination and cross-examination will be only after grant of pardon, and not any time earlier to the grant of pardon.
(d) The co-accused do have a right to question the order granting pardon under Section 306 of the Cr.P.C., only insofar as it pertains to any procedural aberration and not the order granting pardon on its merit.
The Court observed, “The Apex Court clearly holds that it is settled principle of law that if an act under the statute is to be performed in a particular manner, it shall be only in that manner. The rule, the Apex Court observes, has since been applied to exercise of jurisdiction by Courts, it therefore becomes a jurisdictional issue. The order of the concerned Court directing the learned Magistrate to record statement under Section 164(1) of the Cr.P.C., is quoted hereinabove. The trial, in the case at hand, has commenced long ago, admittedly. Therefore, there can be no order directing recording of statement under Section 164 of the Cr.P.C., that too at the hands of the learned Magistrate, above all, in the presence of the advocate for accused No.1 and after the case has been committed to the Court of Sessions, and here the Special Court.”
The Bench said that the action of the Special Court in directing recording of statement under Section 164 of the CrPC, is on the face of it, illegal and contrary to the statute.
Senior Advocates C.V. Nagesh, Sandesh J Chouta, Kiran S. Javali, and Advocate Sudhanva D.S. appeared for the Petitioners while Special Public Prosecutor (SPP) P. Prasanna Kumar appeared for the Respondents.
Factual Background -
The Petitioners were the accused persons in a 2016 case. A Complaint was registered by a woman alleging offence punishable under Section 302 of the Indian Penal Code (IPC) on the murder of her husband who was a member of Zilla Panchayat, Dharwad, against unknown persons. The Police conducted an investigation and filed a chargesheet against 6 persons and the concerned Court took cognizance of the offences punishable under Sections 143, 147, 148, 120B, 302, 201 read with Section 149 of the IPC and committed the case to the Sessions Court. The trial continued for 2 years during which 63 witnesses were examined. The mother and brother of the deceased preferred Writ Petitions before the High Court, seeking further investigation from the hands of the Central Bureau of Investigation (CBI).
The aforesaid Petitions came to be dismissed and the Apex Court also dismissed the same. During the pendency of the trial, an Application was filed by the brother of the deceased under Section 319 CrPC to array additional accused into the web of trial. However, this was also dismissed. Thereafter, CBI came into the picture and it registered a fresh FIR against the accused persons. Pursuantly, the accused preferred a Writ Petition seeking quashment of the Order entrusting the matter to the CBI but the same was dismissed. In the proceedings, the accused filed an Application under Section 306 CrPC, seeking pardon and transposing him as a witness by considering him as an approver in the case. The Special Court directed the Magistrate to record his statement and then a pardon was granted to him. Challenging this Order, the Petitions were preferred before the High Court.
The following issues arose before the High Court –
(i) Whether a second application seeking pardon under Section 306 of the Cr.P.C., is maintainable?
(ii) Whether recording of Section 164 Cr.P.C. statement, prior to grant of pardon, would vitiate the order granting pardon under Section 306 of the CrPC?
(iii) What should be the procedure for grant of pardon under Section 306 of the Cr.P.C.?
(iv) Whether the co-accused have a right to question the order granting pardon?
The High Court while considering the first issue, noted, “Whether the second application was maintainable or otherwise need not detain this Court for long or delve deep into the matter. The application under Section 306 of the Cr.P.C. is akin to seeking enlargement on bail, where a second application would be maintainable, but only on changed circumstances.”
The Court added that the issue is no longer res integra that a second application is maintainable, but only on changed circumstances and whether there was a changed circumstance or not in the case, requires to be noticed.
“There was no changed circumstance that would be in the strict sense of the term, but the accused No.1 throughout has been making a hue and cry about threat to his life, the threat according to his application looms large. This threat if would be continuous or continues in real time, and not imaginary, it becomes a changed circumstance. In such circumstances only, the second application would be maintainable before the concerned Court, other than the factual or actual changed circumstance”, it remarked.
While dealing with the second issue, the Court said, “The order impugned does not bear independent consideration, or independent application of mind for passage of the impugned order. It is founded only upon Section 164 Cr.P.C. statement recorded by the learned magistrate pursuant to the direction, blatantly contrary to law.”
The Court added that the illegalities galore in granting pardon of the accused and the impugned Order is thus unsustainable, as it stems from procedure adopted contrary to law.
With regard to the third issue, the Court observed, “The communication of accused No.1 to the Investigating Officer does not bear a date, but it does bear eference in the additional response of the CBI. … It is verbatim reproduction of the communication. Based on the said report, it was always open to the Court to consider and pass necessary orders. But, the present order foundations itself completely on Section 164 statement. Even the additional response refers to 164 statement. Therefore, the order that has a veneer of illegality covered on it, cannot be sustained.”
The Court further held that the recording of Section 164 CrPC. statement for the purpose of consideration of grant of pardon under Section 306 of the CrPC, is an action unknown to the mandate of the statute and, therefore, the action is illegal and contrary to law.
Coming to the fourth issue, the Court said, “… this Court cannot and has not tied the hands of accused No.1 to file an application seeking pardon or otherwise. The Court has only found fault with the procedure adopted by the concerned Court. It is now necessary to notice the serious objection taken by the learned senior counsel Sri C.V.Nagesh for averments made in the statement of objections, with particular reference to paragraphs 18 and 19.”
The Court noted that the objection of the CBI that every now and then the Petitioners are approaching the Court which has contributed to gross delay in the proceedings is completely contrary to all the Orders of the concerned Court which is repeatedly passing Orders against the prosecution in delaying completion of trial.
“Therefore, the delay has not occasioned due to the petitioners approaching this Court every now and then, but the prosecution has also contributed the delay. In that light, I again reiterate expeditious conclusion of trial and at any rate within 2 months from the date of receipt of a copy of this order, if not earlier. Needless to observe that parties would cooperate with the conclusion of trial expeditiously”, it concluded.
Accordingly, the High Court allowed the Criminal Petitions and quashed the impugned Order.
Cause Title- Vinay Rajashekharappa Kulkarni v. Central Bureau of Investigation & Anr.
Appearance:
Petitioners: Senior Advocates C.V. Nagesh, Sandesh J Chouta, Kiran S. Javali, Advocates Sudhanva D.S., Gaurav N., Sunil Kumar S., and Vipin Kumar Jain.
Respondents: SPP P. Prasanna Kumar
