BANGARU LAXMAN versus STATE (THROUGH CBI) & ANOTHER

Citation: [2011] 13 S.C.R. 268 · Decided: 22-11-2011 · Supreme Court of India · Bench: A.K. GANGULY · Disposal: Dismissed
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Judgment (excerpt)

A 
B 
c 
[2011] 13 (ADDL.) S.C.R. 268 
BANGARU LAXMAN 
v. 
STATE (THROUGH CBI) & ANOTHER 
(Criminal Appeal No. 2164-65 of 2011) 
NOVEMBER, 22, 2011 
[ASOK KUMAR GANGULY AND 
GYAN SUDHA MISRA, JJ.] 
PREVENTION OF CORRUPTION ACT, 1988: 
s. 5(2) - Power of Special Judge to grant pardon at 
investigation stage - Held: On a harmonious reading of s. 5 
(2) of the P. C. Act with the provisions of s. 306, specially s. 
306 (2) (a) of the Code and s. 26 of the P. C. Act, the Special 
0 Judge under the P. C. Act, while trying offences, has the dual 
power of the Sessions Judge as well as that of a Magistrate, 
and conducts the proceedings under the Code both prior to 
as well as after the filing of charge she2t, for holding the trial 
""' Therefore, the power of granting pardon, prior to the filing 
of the charge sheet, is within the domain of judicial discretion 
E of the Special Judge before whom such a prayer is made, as 
in the instant case, by the prosecution - Code of Criminal 
Procedure, 1973 - s. 306 (2) (a) - Interpretation of Statutes. 
F 
CRIMINAL LAW: 
Grant of pardon to one of the several accused involved 
in an offence - Purpose of - Explained. 
INTERPRETATION OF STATUTES; 
G 
Deeming provision - .HELD: Is a legal fiction and an· 
admission Of the non-existence Of the fact deemed -
Therefore, while interpreting a provision creating a legal 
fiction, the court has to ascertain the purpose for which the 
fiction is created- Prevention of Corruption Act, 1988- s.5(2). 
H 
268 
BANGARU LAXMAN v. STATE (THROUGH CBI) & 269 
ANR. 
On 21.04.2005, the confessional statement of A 
respondent no. 2 was recorded u/s 164 Cr. P. C., wherein 
he admitted his and appellant's involvement in the 
incident. The prosecution formed an opinion that the 
evidence of respondent no. 2 would be of great value 
·and, therefore, it moved an application before the Court 
B 
of the Special Judge for grant of pardon to respondent 
No. 2, so that he could be examined as an approver in 
the case against the appellant. By an order dated 
17.7.2006, pardon was granted by the Special Court. On 
18.7.2006 charge sheet in the case was filed against the c 
appellant and another. The order granting pardon to 
respondent no. 2 was challenged before the High Court, 
which declined to interfere. 
In the instant appeals it was contended for ~he 
appellant, inter-alia, that the Special Court had no D 
jurisdiction and authority to grant pardon at the 
investigation stage before the filing of the charge sheet 
and, as such, the pardon was not granted after following 
the proper procedure. 
Dismissing the appeals, the Court 
HELD: 1.1 Under s. 5(2) of the Prevention of 
Corruption Act, 1988, the power of the Special Judge to 
grant pardon is an unfettered power subject to stipulation 
made in the section itself. Such power can be exercised 
at any stage and there is no stipulation that power can 
E 
F 
be exercised by the Special Judge only at the stage of 
trial. The deeming clause which has been introduced in 
s.5(2) is for a very limited purpose mentioned therein. It 
is not for fettering the power of the Special Judge to grant G 
pardon in terms of s. 306 of the Code of Criminal 
Procedure, 1973. The purpose.of introducing the deeming 
provision in s. 5(2) is manifest from its text, namely, the 
same is introduced only for the purposes of sub-ss. (1) 
to (5) of s. 308 of the Code and it is only for the said 
H 
270 
SUPREME COURT REPORTS (2011) 13 (ADDL.) S.C.R. 
A purpose that the sanction is deemed to have been 
tendered u/s. 307 of the Code. Sub-ss. (1) to (5) of s. 308 
of the Code make it clear that the said provisions have 
been enacted for a different purpose, namely, for holding 
trial of a person for not complying with the conditions of 
B pardon. [Para 21 and 25] [280-G-H; 281-A-B; 282-D-E] 
c 
State of U.P. vs. Singhara Singh AIR 1964 SC 358; 
Taylor vs. Taylor (1876) 1 Ch. D.426; Queen Empress vs. 
Batera & Ors. Crl. Judgment No. 3 (Case No. 2838 of 1897) 
- referred to. 
1.2 It is well known that a deeming provision is a legal 
fiction and an admission of the non-existence of the fact 
deemed. Therefore, while interpreting a provision 
creating a legal fiction, the court has to ascertain the 
D purpose for which the fiction is created. [para 22] [281-
C-D] 
Mis. J.K. Cotton Spinning and Weaving Mills Ltd. and 
another vs. Union of India and others - 1988 SCR 700 =AIR 
E 1988 SC 191; Travancore Cochin and others vs 
Shanmugha Vilas Cashew nut
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