Co-Accused Lacks Legal Right To Be Heard At Pre-Trial Stage Of Tender Of Pardon U/S 306 CrPC: Delhi High Court
The Bench noted proceedings remain strictly bilateral between Court, prosecution, and applicant-accused; statutory protection of co-accused limited to cross-examination during trial.
Justice Jasmeet Singh, Delhi High Court
The Delhi High Court has held that the grant of pardon under Sections 306 and 307 CrPC is exclusively a matter between the Court, the prosecution, and the applicant-accused. The Court noted that the scheme of the CrPC does not contemplate any right of hearing for a co-accused during the pre-trial stage when an application for turning an approver is under consideration.
The Court clarified that since a co-accused has no legal right to raise a grievance against an order granting pardon, the question of affording them an opportunity of being heard during the consideration of such an application does not arise. The statutory right of a co-accused is limited to cross-examining the approver once the trial commences, ensuring that the principles of natural justice are preserved at the appropriate procedural juncture.
Justice Jasmeet Singh while dealing with an application seeking the recall of its prior judgment, observed, “…the co-accused has no right to oppose the application for granting pardon. He has no legal right to raise a grievance against an order granting pardon, though the Court may, in an appropriate case, examine the legality or propriety of such order in exercise of Revisional or Inherent Jurisdiction. Hence, the apprehensions raised by the applicant are premature. The applicant and the other co accused will have ample opportunity during the trial to challenge and cross examine the approver, petitioner herein, and shake the credibility of his testimony”.
“The applicant pleads that there has been gross violation of Principles of Natural Justice as he has not been heard before passing the order of pardon. Principles of Natural Justice cannot be construed as a rigid and abstract framework that has a straitjacket application in every scenario. The application of Principles of Natural Justice also has to be in consonance with the legal statutes. A criminal procedure code permits locus of different parties to a trial at different stages”, the Bench further observed.
Advocate Rajeev Awasthi appeared for the petitioner, Zoheb Hossain, Special Counsel appeared for the respondent, while Advocate Vijay Aggarwal appeared for the applicant.
The factual matrix arises from an ECIR registered by the Directorate of Enforcement on July 6, 2022, following a predicate corruption case initiated by the CBI.
The applicant, M/s NKG Infrastructure Ltd., was accused of securing a Delhi Jal Board tender using a forged performance certificate and sharing proceeds of crime totaling over ₹10.62 crores. Tajinder Pal Singh, a co-accused, moved the Rouse Avenue Special Court seeking a tender of pardon under Sections 306 and 307 CrPC.
Thereafter, the applicant had filed an impleadment application before the Special Judge to oppose Singh’s pardon request, which was dismissed on July 30, 2024. Subsequently, on August 22, 2024, the Special Judge rejected Singh’s application for pardon.
Singh challenged this rejection through a Criminal Revision Petition before the High Court. On December 3, 2024, the High Court set aside the Special Judge’s order and granted Singh the status of an approver.
The applicant then moved the High Court under Section 482 of the CrPC seeking a recall of this judgment on the grounds that it was passed without hearing them, violating Section 401(2) CrPC and the principles of natural justice.
Considering the statutory mandate, the Court observed that while Section 362 of the CrPC bars a criminal court from reviewing its final judgment on merits, a procedural review for lack of procedural propriety or a violation of natural justice is permissible under Section 482.
“To my mind, the scheme of Section 306 CrPC does not confer a right to be heard on every co-accused. The Court at the stage of granting a pardon, either before the filing of chargesheet or after the chargesheet has been filed and stage of inquiry has commenced but before the trial, does not adjudicate upon the guilt of the other co-accused. The grant of pardon is not an act which itself causes prejudice to the co-accused and does not by itself lead to their conviction. The approver is rather to be examined at the stage of trial and then further cross examined, before his/her testimony can become an admissible evidence. The opportunity at the stage of trial to cross examine the approver and impeach his/her credibility is sufficiently afforded to the co-accused. Thus, the only effective opportunity to the co-accused to question the reliability of the approver can be granted at the stage of trial”.
However, turning to the applicant's locus standi, the Bench emphasized that the applicant had failed to challenge the Special Judge's July 30, 2024 order rejecting its impleadment, thereby allowing it to attain finality. The current recall application was thus barred by res judicata, as the applicant could not pursue indirectly what it failed to challenge directly.
Accordingly, the Court dismissed the application, holding that there was no procedural lapse or violation of natural justice since the co-accused lacked any statutory or legal right to be heard at this stage.
Cause Title: Tajinder Pal Singh v. Directorate of Enforcement (Neutral Citation: 2026:DHC:5353)
Appearances:
Petitioner: Rajeev Awasthi, Advocate.
Respondent: Zoheb Hossain, Special Counsel, Vivek Gurnani, Pranjal Tripathi, Advocates. Vijay Aggarwal, Advocate for the Applicant.