LexSTATE THROUGH CBI, CHENNAI versus V. ARUL KUMAR
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A B c D E [2016] 2 S.C.R. 486 STATE THROUGH CBI, CHENNAI v. V. ARUL KUMAR (Criminal Appeal No. 499of2016) MAY 13, 2016 [A. K. SIKRI AND R. K. AGRAWAL, JJ.] Code of Criminal Procedure, 1973 - s.306 - Tender of pardon to approver - Charge sheet filed against respondent and others before the Magislrate under Penal Code and Prevenlion of Corruption Act - Five individuals taken as approvers after recording !heir confessional stalements - Applicalion by prosecutor uls. 306 for gra/1/ of pardo11 - Grant of pardo11 by Magistrale and thereafter committal of case to Special Judge - Special Judge upheld !he order of granl of pardon - However, High Courl held thal the Special Judge is empowered to grant tender of pardon and such order passed by !he Magistrate is no/ lawful - On appeal, held: In cases where charge sheet is filed before /he Magistrale, 1he Magislrate is duly empowered lo gra11t tender of pardo11 uls. 306 even i11 respect of the cases which are friable by the Sessio11 Courl or by the Special Judge for !he offences under the PC Act - Preve11tion of Corruption Act, /988. Allowing the appeal, the Court HELD: 1.1 Sub-section (1) of Section 306 of the Code of Criminal Procedure, 1973 very categorically and unambiguously F mentions Metropolitan Magistrate as one of the Judicial Officers who can exercise the power of tender of pardon to accomplice. Thus, Metropolitan Magistrate is specifically given such a power under Section 306 of the Code. Suh-section (2) of Section 306 makes it clear that this Section applies even to those offences which are triable exclusively by the Court of Session or hy the G Court of a Special Judge appointed under the Criminal Law Amendment Act, 1952. Thus, even where the cases are triable by a Special Jildge, the Metropolitan Magistrate is authorised to grant tender of pardon. Sub-section (5) makes the position beyond any pale of doubt, that even when an offence is triable by a Session H Judge, the Magistrate has the requisite power to take cognizance 486 STATE THROUGH CBI, CHENNAI v. Y. ARUL KUMAR and grant tender of pardon and, thereafter, commit the case to the Special Judge for trial. Section 307 of the Code restricts the power to grant tender of pardon by conferring it in the hands of the Court to which the commitment is made, only after the commitment of a case. This provision, also lends support to the position taken by the appellant, as it makes it clear that after the committal of the case, it is only that Court to which the commitment is made has the power to tender a pardon, thereby implying that before the commitment of case, Magistrate is duly empowered. [Para 14) [496-E-H; 497-A-B] 1.2 On a plain reading of Section 306 in conjunction with Section 307 of the Code, it becomes manifest that Magistrate is duly empowered to grant tender of pardon even in respect of the cases which are triable by the Session Court or by Special Judge. [Para 15] [497-C] P.C. Mishra v. State (CBI) and Another 2014 (4) SCR 183 : (2014) 14 sec 629 - relied on. 1.3 Sub-section (1) of Section 5, while empowering a Special Judge to take cognizance of offence without the accused being conimitted· to him for trial, only has the effect of waiving the otherwise mandatory requirement of Section 193 of the Code. Section 193 stipulates that the Court of Session cannot take cognizance of any offence as a Court of original jurisdiction unless the case has been committed to it by a Magistrate under the Code. Thus, embargo of Section 193 of the Code. has been lifted. It, however, nowhere provides that the cognizance cannot be taken by the Magistrate at all. There is, thus, an option given to the Special Judge to straightway take cognizance of the offences and not to have the committal route through a Magistrate. However, normal procedure prescribed under Section 190 of the Code empowering the Magistrate to take cognizance of such offences, though triable by the Court of Session, is not. given a go-bye. Both the alternatives are available. In those cases where chargesheet is filed before the Magistrate, he will have to commit it to the Special Judge. In this situation, the provisions of Section 306 of the Code would be applicable and the Magistrate would be empowered to exercise the power under the said provision. In contrast, in those cases where Special Judge takes cognizance 487 A B c D E F G H 488 SUPREME COURT REPORTS [2016]
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