LexLT. COMMANDER PASCAL FERNANDES versus THE STATE OF MAHARASHTRA & OTHERS
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,, LT. COMMANDER PASCAL FERNANDES v. THE STATE OF MAHARASHTRA & OTHERS September 28, 1967 (M. ffIDAYATULLAH, V. BHARGAVA AND C. A. VAIDIALINGAM, JJ.] B Criminal Law Amendment Act· (4'> of 1952), s. 8(2) and Criminal Procedure Code (Act 5 of 1898), ••· 337 and 338-Power to tender pardon under Criminal Law Amendment Act-If e.vercisable onlv on the application of prosecution-If governed bu •. 54-0, Cr.P.C.- Matters to be considered before tendering pardon. c Three sui;Rrior Government officers, an upper division clerk and four others were being tried before the Special Judge, appoint- ed under s. 6 of the Criminal Law Amendment Act, 1952, for various offences including criminal misconduct under s. 5 (2) of the Prevention of Corruption Act, 1947. The clerk applied to the Court praying that he should be made an approver and examined as a prosecution witness. The application was opposed by the other co. accused but the Special Judge, acting under s. 8(2) of the Criminal D Law Amendment Act. tendered a conditional pardon to him and ordered that he should be examined as an approver and witness for the prosecution. The appellant, who was one of the co-accused, filed a revision in the High Court. In the High Court, the prose- cution stated that it had no objection to the grant of pardon to the clerk and' that it even welcomed it. The High Court thereupon con- firmed the order of the Special J udg!a. E In appeal to this . Court; the appellant contended . that : (1) differences between ss. 337 and 338 Cr. P. C., and s. 8(21 of the Criminal Law Amendment Act, show that the powers of the Spe- cial Judge, in tendering pardon under s. 8(2), are limited to an application by the prosecution in that behalf .and that the Special Judge could not act soo motu; (2) the powers of the Special Judge under s. 8(2) are circumscribed by the considerations that under- F lie s. 54-0 Cr. P. C.,, and that therefore he could not acquit· one ac- cused so as to be able to convict another; and (3) the Special· Judge had not exercised his di•rr•"n" judicially and properly, Held: (1) Under s. 7(1) and (3) of the Criminal Law Amend, ment Act, notwithstanding anything contained in the Criminal Procedure Code, the offences under ss. 161 or 165 or 165A I.P.C., and s. 5(2) of the Prevention of Corruption Act, 1947, shall be tried G only by a Special Judge. Therefore, in the case of an offence under s. 5(2) of the Prevention of Corruption Act, under s. 337(11) Cr.P.C., a Magistrate, with a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in or privy to an offence, may tender pardon to him; but when that person has accepted the tender of pardon and has been examined under .s. 337(2), the Magistrate must, without making any further enquiry send the case to the Spacial Judge for trial under s .. 337(2B). The B provisions of s. 337(1) thus apply at the stage of investigation or inquiry before the case reaches the Special Judge. When there ii no such tender of pardon to any one, the case shall be forwarded for trial, to the Special Judge and his powers commence after he 60~ 696 8U'PllEllli COURT BBPOllTB [1968] 1 S ,C.B. .& bu taken cognizance of the case and are available to him through- out the trial, When the case is before him, a tender of pardon can only be by him. But where the offences are other than those under 11. 161, 166, ll!M, I.P.C. and s. 5(2) Prevention of Corruption Act, when there Is a committal by the Magistrate under s. 337(2A), s. 338 Cr.P.C. provides that the court' to which commitment is made could not only tender pardon itself, but could also order the com- mitting Magistrate or District Magistrate to do so. Such a power la not available to the Special Jiidge, because, there is no commit- B ment when he takes cognizance: These differences, In the powers of the Special Judge and the courts constituted under the Criminal Procedure Code do not, howe'1er, show that the powers of the Special Judge could only be exercised if the prosecution moved first. On the contrary, there is nothing in the language of the sec- tion to show that the Special Judge must be moved by the prose- cution. The section is enabling and its terms are wide. Therefore, a 'the Special Judge may consider an offer by one of the accused to turn approver. [701 F-G; 703 B-E, H; 704 A]. (2) Section 540, Cr.P.C., confers powers on the court to summon material witnes
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