C O N T E N T S

I N T R O D U C T I O N

The judgment in the above case written by Hon'ble Shri. Justice V. Ramasubramanian is one of the best written judgments I have ever come across. But, there is no rule or presumption of universal application that all well-written Judgments, including those of mine, are flawless. In the course of their judgments even great Judges unintentionally or unknowingly err. But that does not cause any blot on their name or fame.

2. Even though accused Nos: 1, 4 and 7 who were the appellants before the Supreme Court were all acquitted of all the offences charged against them, I think an illegality committed in the case by the CBI resulting in the consequential flaw in the curial procedure needs a probe for academic purposes. Hence this article which is confined only to –

• the procedural illegality in tendering pardon to the accomplice under Section 306 (1) Cr.P.C.,
• the failure by the CJM to examine the approver as a witness under Section 306 (4) (a) Cr.P.C.,
• the illegality committed by the CBI in filing the “charge-sheet” directly before the Special Judge, instead of the CJM,
• the unjustified explanation offered for not examining the approver as a witness under Section 306 (4) (a) Cr.P.C., and
• the faulty approach in appreciating the testimony of the approver.

With regard to the finding by the Apex Court in para 53 of the verdict that the prosecution of A1 (A2 in the FIR) for the IPC offences without a previous sanction under Section 197 (1) Cr.P.C. was bad and with regard to my view that the CJM to whom the CBI made the request to tender pardon to Bhaskar Rao (the accomplice) committed an illegality in forwarding the request for pardon to the Additional CJM who had no jurisdiction to tender pardon, the same have already been considered by me in an earlier article titled “ON THE VERDICT IN “SRINIVASULU”— A RECENTLY REPORTED CORRUPTION CASE”, dated 14-09-2023. Here, I am dealing with the other illegality in the tender of pardon and the non-examination of the approver under Section 306 (4) (a) Cr.P.C. after the pardon was tendered to the accomplice.

FACTS LEADING TO THE VERDICT OF THE

SUPREME COURT

3. The primary facts leading to the prosecution of the accused persons in the case have been meticulously stated by Shri. Justice V. Ramasubramanian. Those facts are as follows –

Altogether 7 accused persons (A2 to A8 in the FIR) faced trial, inter alia, for offences punishable under Sections 120 B r/w 420, 109, 468, 471, 193 IPC and Section 13 (1) (d) r/w 13 (2) of the Prevention of Corruption Act, 1988 (“P. C. Act, 1988” for short). After A1 in the FIR was made an approver, the remaining accused persons were re-arrayed as A1 to A7.

A1 to A4, being officers of the Bharath Heavy Electricals Ltd. (BHEL), Tiruchirappilly, were “public servants” both under Section 21 (Clause twelfth) of IPC and Section 2 (c) (Clause (iii) of P. C. Act, 1988 and, therefore, prima facie, they could be prosecuted for the IPC offences only after obtaining sanction under Section 197 Cr.P.C. and for the offence under the P. C. Act, 1988 also only after obtaining sanction under 19 (1) of P. C. Act, 1988.

A5 to A7 were alleged to be persons who obtained wrongful gain from the BHEL out of the transactions in question.

The offences were allegedly committed during the period between 1994 and 1996.

30-01-1997 - CBI registered the FIR for the aforementioned offences. (Vide para 6 (v) of the judgment)

16-11-1998 - Exhibit P44 Confession (164 statement) of K. Bhaskar Rao (A1 in the FIR) was recorded by PW.17, the XVIII Metropolitan Magistrate, Chennai. (Vide para 54)

22-06-2000 - CBI moved the CJM, Madurai for tendering pardon to K. Bhaskar Rao (A1 in the FIR) as per Exhibit P.51 application (M.P.No: 502/2000) filed under Section 306 (1) Cr.P.C.

CJM made over the application to PW.18, the Additional CJM (Vide para 6 (vi) and end of para 54) (According to me, the CJM abdicated his powers by making over the application to the Additional CJM who, in my opinion, had no jurisdiction to tender pardon.) (Vide my answer to Question 1 given towards the end.)

18-07-2000 – Additional CJM (PW.18) granted pardon to K. Bhaskar Rao under Section 306 (1) Cr.P.C. (Vide para 6 (vi). Exhibit P.52 is the order granting pardon.)However, Bhaskar Rao was not examined as a witness under Section 306 (4) (a) Cr.P.C.

16-07-2002 - CBI filed the charge-sheet against revised A1 to A7 for the aforementioned offences, directly before the Principal Special Judge for CBI Cases, Chennai. Exhibit P44 confession statement of Bhaskar Rao recorded under Section 164 Cr.P.C. was also produced along with the charge-sheet. (According to me, the CBI ought to have filed the charge-sheet before the CJM.)

04-07-2003 - The Special Court took cognizance of the offences on the charge sheet filed by CBI.

A5 and A6 died pending trial and hence the charge against them abated.

2006 - TRIAL The prosecution examined 44 witnesses and marked 94 documents. During the trial of the case K. Bhaskar Rao, the approver was examined as a prosecution witness (PW.16).

08-09-2006 - The Trial Court (the Principal Special Judgefor CBI cases, Chennai) acquitted A2, but convicted A1, A3, A4 and A7 of most of the IPC offences. A1 was additionally found guilty of the offence under Section 13 (1) (d) r/w Section 13 (2) of the P. C. Act, 1988. A4 must have been acquitted of the charge for the offence under the P.C. Act, 1988 by the Trial Court itself. As against the charge under Sections 13 (1) (d) r/w 13 (2) of the P. C. Act, 1988, A7 was convicted of an offence punishable under Section 13 (2) r/w Section 13 (1) (e) of the P. C. Act, 1988 for which there was no charge.

• For the above conviction A1, A3, A4 and A7 were sentenced to different terms of imprisonment and also fine.
• A1, A3, A4 and A7 filed appeals before the Madurai Bench of the Madras High Court.
• A3 died pending his appeal before the High Court and accordingly his appeal was dismissed as abated.
• As per common Judgment dated 17-09-2010 the High Court dismissed the surviving 3 appeals by A1, A4 and A7, confirming the conviction entered and sentence passed against them.
• Aggrieved by the common judgment passed by the High Court, A1, A4 and A7 preferred a further appeal to the Supreme Court of India.
• Para 28 of the verdict in question shows that the Apex Court divided the discussion and analysis of the matter under 3 different heads, namely –

1. The question of prosecution sanction under Section 197 Cr.P.C. (Considered in paras 28 to 53 of the verdict in question.)
2. The correctness of the procedure adopted while granting pardon under Section 306 Cr.P.C. to the accomplice (K. Bhaskara Rao, former DGM of BHEL, Tiruchirappalli) who was examined as PW 16. (Considered in paras 54 to 79 of the verdict in question.)
3. The merits of the case qua the culpability of each of the 3 appellants before the Supreme Court.
   (Considered in paras 80 to 138 of the verdict in question.)

• The Supreme Court disposed of the aforesaid appeal on 15-06-2023 acquitting all the 3 appellants of all the charges. (A4 was already acquitted of the charge under the P. C. Act, 1988 by the Trial Court itself.)

Finding of the Supreme Court regarding the Correctness of the grant of pardon to PW 16 under Section 306 Cr.P.C.

4. Even though the Supreme Court ultimately acquitted on merits all the three appellants before it, the reasoning given by the Court for holding in paragraph 79 of its verdict that there was no violation of the procedure prescribed by Section 306 (4) (a) Cr.P.C., does not, in my respectful opinion, appear to be legally sound. The legality of the procedure in tendering pardon to the accomplice (Bhaskar Rao) in the case was considered in paragraphs 54 to 79 of the judgment. In the course of the discussion, the Bench has in paragraph 61 enumerated some of the steps in the grant of pardon. In paragraph 64 of the verdict the Bench has noticed the Courts which are empowered to tender pardon at the stage of “investigation”, “inquiry” and “trial”. The Bench, according to me very rightly, converged on the exact point at issue in paragraph 69 as follows –

“For finding an answer to the said question, the Court in A. Devendran, first made a distinction between a case where tender of pardon was made before the commitment of the same to the Court of Session and a case where pardon is tendered after commitment. After making such a distinction, on the basis of whether pardon was tendered before or after the committal, this Court held in Devendran (para 11) as follows:-

“11. … A combined reading of sub-section (4) of Section 306 and Section 307 would make it clear that in a case exclusively triable by the Sessions Court if an accused is tendered pardon and is taken as an approver before commitment then compliance of sub-section (4) of Section 306 becomes mandatory and non-compliance of such mandatory requirements would vitiate the proceedings but if an accused is tendered pardon after the commitment by the Court to which the proceeding is committed in exercise of powers under Section 307 then in such a case the provisions of sub-section (4) of Section 306 are not attracted. …”

In paragraph 75 and 76 of the verdict the Bench taking note of State though CBI, Chennai v. V. Arul Kumar (2016) 11 SCC 733 observed (according to me very rightly) that it is only in those cases where the Special Court decides to tender pardon to an accomplice after taking cognizance of the offence that the procedure under Section 306 Cr.P.C. is by-passed. In this context, the Bench adverted to Harshad S. Mehta v. State of Maharashtra (2001) 8 SCC 257, Bangaru Laxman v. State though CBI (2012) 1 SCC 500, and P. C. Mishra v. State (CBI) (2014) 14 SCC 629 and State though CBI, Chennai v. V. Arul Kumar (2016) 11 SCC 733. In paragraphs 75 to 77 of the verdict, relying on Arul Kumar (Supra - (2016) 11 SCC 733) and Sardar Iqbal Singh v. State (Delhi Admn.) (1977) 4 SCC 536 and Yakub Abdul Razak Menon v. State of Maharashtra (2013) 13 SCC 1, the Bench held that since this case did not come through the “committal route” but instead cognizance was taken directly by the Special Judge under Section 5 (1) of the PC Act, 1988, Section 306 (4) stood by-passed dispensing with the examination of the approver (Bhaskar Rao) as a witness under Section 306 (4) (a) Cr.P.C. Finally, in paragraph 79 it was concluded that by the non-examination of the approver under Section 306 (4) (a) Cr.P.C. there was no violation of the procedure prescribed under Section 306 Cr.P.C., particularly since the confession statement of the approver was also produced along with the charge-sheet.

WHERE THE APEX COURT BUNGLED

5. After having noticed that Exhibit P.51 request of Bhaskar Rao to make him an approver was sponsored by the CBI, that Exhibit P44 confession (S.164 statement) of the accomplice was recorded by the Magistrate (PW 17) providing “the reasons” under Section 306 (3) (a) Cr.P.C. for tendering pardon, that the pardon was actually tendered by the Additional CJM as per Exhibit P.52 order (Here it is my view that “the CJM” himself ought to have tendered the pardon), the Apex Court, in my humble view, went wrong in holding that the stage of examination of the approver as a witness under Section 306 (4) (a) Cr.P.C. stood by-passed due to the fact that the Special Judge had directly taken cognizance of the offences on the charge-sheet filed before him by the CBI. What is startling is the observation in paragraph 78 of the verdict that the object of examination of the approver under Section 306 (4) (a) Cr.P.C. stands fulfilled in this case by the production of Exhibit P44 confession (164 statement) of Bhaskar Rao, the approver, recorded by the Magistrate prior to the grant of pardon. The Bench overlooked the fact that 164 statement of the accomplice recorded during investigation and prior to the tendering of pardon to him and also prior to the appearance of the other accused, is taken for a totally different purpose and it cannot be a substitute for the evidence of the approver to be recorded under Section 306 (4) (a) Cr.P.C. after the grant of pardon and after the appearance of the other accused in the case.

CBI WAS THE REAL VILLAIN

6. This was a case where the pardon was tendered to the accomplice (Bhaskar Rao) by a Magistrate under Section 306 (1) Cr.P.C. during the stage of investigation. If so, the case could not have by-passed the procedure under sub-sections (4) and (5) of Section 306 Cr.P.C. and the case ought to have taken “the committal route” under Section 306 (5) (a) (ii) Cr.P.C. as envisaged by the scheme under Section 306 Cr.P.C. and as held in V. Arul Kumar's case (Supra – (2016) 11 SCC 733). The false step in this case was taken by the CBI by filing the charge-sheet directly before the Special Court instead of before the CJM. This led to the Special Judge directly taking cognizance of the offences purportedly under Section 5 (2) of the P.C. Act, 1988. The observation in paragraph 65 of the verdict that Section 5 (2) of P. C. Act, 1988 does not speak of the stage at which pardon may be tendered by the Special Judge, overlooks the fact that the very establishment of the Special Court is for “trial” of cases involving corruption by public servants. It was by Section 7 (1) of the Criminal Law Amendment Act, 1952 that the Special Courts were first established “for trial” of “corruption cases” under the Prevention of Corruption Act, 1947. Since the Special Courts are established only for the trial of corruption cases, the role of such Special Courts starts with the “trial” which commences with the “framing of charge and the taking of the plea of the accused”. Such Special Courts have jurisdiction to tender pardon to an accomplice only after taking cognizance of the offence and have no jurisdiction to tender pardon to an accomplice at the pre-cognizance and pre-trial stages including investigation. (Vide para 10 of Commander Pascal Fernandes, Lt. v. State of Maharashtra AIR 1968 SC 594 = 1968 Cri.L.J. 550 – 3 Judges – M. Hidayatullah, V. Bhargawa, C.A. Vaidialingam – JJ; Para 7 of Anantha Narayana Bhatt v. CBI 2010 Cri.L.J. 926 = 2009 KHC 853 = 2009 (4) KLT 992 - Thomas P. Joseph – J; Para 17 of State through CBI, Chennai v. V. Arul Kumar AIR 2016 SC 2551 = (2016) 11 SCC 733 – A. K. Sikri, R. K. Agrawal – JJ.) That explains the special procedure under Section 306 Cr.P.C. during the pre-cognizance stage. There was similar procedure in Section 337 of the 1898 Code which has been given at page 5 of my Book on “Tendering Pardon to an Accomplice” published by Law and Justice Publishing Company. I am, therefore, of the considered opinion that in the case on hand it was the CBI which committed the unpardonable mistake of filing the charge-sheet directly before the Special Court. Instead of returning the charge-sheet to be filed before the CJM, the Special Judge by directly taking cognizance of the offences on the “charge-sheet” so filed by the CBI, committed the illegality of “by-passing” the examination of the approver as a witness under Section 306 (4) (a) Cr.P.C. Since pardon was tendered to the accomplice by a Magistrate during the course of investigation, this case should have taken the “committal route” under Section 306 (5) (a) (ii) Cr.P.C.

“HARSHAD MEHTA'S CASE” (Supra – (2001) 8 SCC 257) LAID DOWN A BAD JUDICIAL PRECEDENT

7. The verdict in Harshad Mehta's case was rendered by a Bench of three-Judges of the Supreme Court. It was to deal with the large scale irregularities and malpractices in relation to transactions in securities and to punish the guilty and also to ensure speedy trial that the Central Government enacted the Special Court (Trial of Offences Relating to Transactions in Securities) Act, 1992. The offences were to be tried by a Special Court. In a case before the Special Court the question was whether the Special Court could tender pardon to an accomplice. As a matter of fact, the said Act did not even contain a provision empowering the Special Court to tender pardon to an accomplice. Noticing the absence of such a power, the Supreme Court had to fall back upon the Cr.P.C. for locating such a power. Since the Act had a provision whereby the Special Court was deemed to be a Court of Session, the Apex Court found that the provision in Section 306 Cr.P.C. dealing with a Court of Session would be applicable to the Special Court. However, placing reliance on the verdict of a Constitutional Bench of the Supreme Court in A. R. Antulay v. R. S. Nayak AIR 1984 SC 684, the Bench in Harshad Mehta held that the Special Court has the power to tender pardon to an accomplice at any stage. Actually, A. R. Antulay's case was mainly dealing with the question as to whether the Special Court under the P.C. Act, 1988 had the jurisdiction to take cognizance of an offence on a “private complaint” in addition to a “Police Report”. The power of the Special Judge to tender pardon to an accomplice “at any stage of the proceedings” was not dealt with in A.R. Antulay. If the Special Court is a deemed Sessions Court, there is no power for the Sessions Court to tender pardon to an accomplice at the pre-committal/pre-cognizance stage or during the stage of investigation. The Sessions Judge can tender pardon to an accomplice only after taking cognizance of the offence and such pardon is granted under Section 307 Cr.P.C. The law as wrongly laid down in Harshad Mehta was being followed by the Supreme Court in Bangaru Laxman (Supra – (2012) 1 SCC 500), P. C. Mishra (Supra – (2014) 14 SCC 733) etc. This has been dealt with in detail in my book on Tendering Pardon to an Accomplice.

APPRECIATION OF THE TESTIMONY OF PW.16 (THE APPROVER) BY THE APEX COURT

8. Yet another aspect in the verdict in question is the appreciation of the testimony of the approver. Among other rulings, the Bench in paragraph 84 of its verdict, relied on M.O. Shamsudhin v. State of Kerala (1995) 3 SCC 351 = 1995 KHC 1305 – M. M. Punchhi, K. Jayachandra Reddy – JJ, wherein it was held in paragraph 15 that while considering the import of Section 133 of the Evidence Act the Court should also take note of the precautionary provision contained in Illustration (b) to Section 114 of the Evidence Act. I am afraid that such an approach towards the testimony of an approver is fallacious as can be seen at pages 115 to 125 of the second edition of my book “Tendering Pardon to an Accomplice” published in the year 2026 by Law and Justice Publishing Company. After giving vent to my apprehension in the Courts reading Section 133 and Illustration (b) to Section 114 side by side, I concluded in paragraph 100 (at page 125) of my book as follows –

MY CONCLUSION

102. Experience shows that in the majority of cases approvers and accomplices are disbelieved mainly for want of corroboration. The result is that notorious conspirators have gone unpunished. Now, with Section 138 of BSA on the statute book no conviction is possible on the uncorroborated testimony of an accomplice. Can any democratic society afford to allow such a state of affairs to be perpetrated ? “Illustration (b)” to Section 114 of the Evidence Act, as judicially interpreted, had done more harm than good to Section 133 of the Evidence Act although the insertion of the said “Illustration” in Section 114 was for a totally different purpose. Now, the framers of BSA have gone one step further by driving the last nail on the accomplices' coffin. This new provision under Section 138 of BSA will be a “boon for all conspirators” and a “nightmare for all victims” of organized crimes. Our nation has already suffered intra-country, inter-country and trans-border terrorism of the worst kind. Even under the old statutory regime really truthful accomplices were disbelieved for want of corroboration without the law insisting on the same. But now, the testimony of accomplice will never be accepted without sufficient corroboration which is a mirage, if not a virtual impossibility. Unmerited acquittals in “conspiracy cases” will hereafter be a regular feature emboldening the hard core criminals. Dishonestly obliging police officers will hereafter be busy manufacturing “tainted evidence” by way of fake corroboration calculated to secure sure acquittals for the conspirators. The Constitutional and statutory duty of every Judge in quest for truth, is to render justice without any “fear” or “favour” and “affection” or “ill will” rather than pleasing the conspirators with unmerited acquittals.

In fact, the above opinion of mine was a corroboration to the eye-opening article written by Justice P. N. Prakash, former Judge of the Madras High Court and published in (2025) MLJ (Crl.) 38 titled as “CONSPIRACY AND CORROBORATION”.

MY QUESTIONS ON “PARDON”

Q.1 Was there any defect in the Addl. CJM tendering pardon to the accomplice, K. Bhaskara Rao ?

Ans. According to me the Addl. CJM had no jurisdiction to tender pardon. Section 306 (1) Cr.P.C. empowers only “the CJM” and “a Metropolitan Magistrate” for tendering pardon to an accomplice. If the provision under Section 306 (1) Cr.P.C. were “a CJM”, then of course, an Addl. CJM also could tender pardon. But, in the case of CJM the Section clearly says “the CJM”. In the case of Metropolitan Magistrate, the Section says “a Metropolitan Magistrate”. Hence, if it were a Metropolitan Magistrate, then any Metropolitan Magistrate could tender pardon. In fact, in Srinivasulu's case the CBI had correctly moved “the CJM” for tendering pardon to the accomplice namely K. Bhaskara Rao. The CJM was actually abdicating his statutory duty by making over the case to the Addl. CJM for tendering pardon to the accomplice.

Q.2 Was there any impropriety on the part of the CBI in filing the charge-sheet before the Special Court ?

Ans. Yes. The CBI ought to have filed the charge-sheet before the Committal Magistrate and not before the Special Judge. When pardon is tendered by the CJM to an accomplice during the stage of investigation, Section 306 (4) (a) Cr.P.C. enjoins that the Magistrate taking cognizance of the offence should examine the accomplice as a witness. Thereafter Section 306 (5) (a) (ii) Cr.P.C. obligates the Magistrate after examining the approver under Section 306 (4) (a) Cr.P.C., to commit the case to the Court of the Special Judge. This means that in a case where pardon is tendered to an accomplice by a Magistrate during the stage of investigation, the agency conducting the investigation should submit the final report (charge-sheet) before the Magistrate concerned and not before the Special Judge. It is only in those cases where pardon is not tendered to an accomplice during the stage of investigation that the investigating agency is entitled to submit the final report (charge-sheet) before the Special Judge and after the Special Judge takes cognizance of the offence, it is the Special Judge who alone can tender pardon to an accomplice under Section 5 (2) of the P.C. Act, 1988, as in the case of a Sessions Judge at the post-committal stage. (Vide State of T. N. v. V. Arul Kumar AIR 2016 SC 2551 – S. M. Sikri – J.) See also pages 43 and 53 to 62 of the Book, “Tendering Pardon to an Accomplice” authored by me and published by Law & Justice Publishing Company.

Q.3 Was the Sessions Judge in “Suresh Chandra Bahri v. State of Bihar, 1995 Supp. (1) SCC 80”, right in setting aside the committal order and directing the committal Magistrate to commit the case again after rectifying the defect of non-examination of the approver under Section 306 (4) (a) Cr.P.C., as noted in paras 70 to 73 of the verdict in question ?

Ans. No. Actually, if after the committal of a case to the Court of Session, the Sessions Judge notices an illegality in the committal order, he cannot by himself set aside the committal order. This is because the case did not come to the Sessions Judge in a proceeding the record of which was not called for by himself for the purpose of exercising the revisional jurisdiction under Section 397 (1) Cr.P.C. The difference in the wording of Section 399 (1) and Section 401 (1) Cr.P.C. should be borne in mind. While both the High Court as well as the Sessions Judge can call for and examine the records of an inferior criminal court for the purpose of exercising the revisional Jurisdiction, in the case of the High Court, it can exercise the said jurisdiction when an illegality comes to its notice even without calling for the records if the record otherwise comes to its knowledge. But in the case of a Sessions Judge he can exercise the power of revision only in respect of the records of a proceeding called for by himself. (Vide State v. Baby 1981 KLT 27 (Kerala – DB) – Janaki Amma, Kader – JJ; John Samuel v. State of Kerala 1985 KLT 902 – S. Padmanabhan – J.)

NOTES BY THE AUTHOR: This question, however, does not arise in the case on hand since pardon was already tendered by a Magistrate to Bhaskar Rao, the approver even before the Special Judge directly took cognizance of the offences. The illegality in the case on hand was the non-examination of the approver under Section 306 (4) (a) Cr.P.C. on the erroneous justification that cognizance of the offence was taken by the Special Judge under Section 5 (2) of the P. C. Act, 1988 and that this would by-pass the need for complying with Section 306 (4) (a) Cr.P.C. (Vide para 76)

Q.4 Was the Bench in the case on hand justified in relying on Harshad Mehta, Bangaru Laxman and P. C. Mishra all of which held that the Special Court has power to tender pardon to an accomplice at all stages ?

Ans. No. Actually in Sreenivasulu's case, since the pardon was tendered to the accomplice during the stage of investigation, it was unnecessary for the Court to refer to “Harshad Mehta”, “Bangaru Laxman” and “Mishra P. C.” all of which had taken the wrong view that the Special Court can tender pardon to an accomplice at all stages of the case, i.e. even during the stage of investigation also. Harshad Mehta was not a case under the P. C. Act, 1988. Bangaru Laxman and Mishra P. C. were both under the P. C. Act, 1988 for which there is clear-cut provision made in Section 306 Cr.P.C. itself. With due respect Bangaru Laxman and Mishra P. C. to the extent they hold that the Special Judge under the P. C. Act has jurisdiction to tender pardon to an accomplice even during the stage of investigation, do not lay down the law correctly. (Vide pages 51, 52, 58 and 59 of the Book “Tendering Pardon to an Accomplice” authored by me and published by Law & Justice Publishing Company.)

If the Special Judge has jurisdiction to tender pardon to an accomplice even during the stage of investigation, it would render the procedure in Section 306 (1), 306 (3), 306 (4) and more particularly Section 306 (5) (a) (ii) Cr.P.C., nugatory, unworkable and illogical. The observation in paragraph 65 of the verdict that Section 5 (2) of the P. C. Act, 1988 does not speak about the stage at which pardon may be tendered by the Special Judge, overlooks the fact that the Special Court itself was constituted only for the trial of the offences and trial of a warrant case starts only with the framing of charge and recording of the plea of the accused and not before.

M Y C O N C L U S I O N

”

• In a case triable by a Special Judge under the Prevention of Corruption Act, 1988, if an accomplice has been tendered pardon by a Magistrate under Section 306 (1) Cr.P.C. prior to the curial act of taking cognizance of the offence by the Special Judge, the examination by the Magistrate of the approver as a witness under Section 306 (4) (a) Cr.P.C. is a must and thereafter the case has to take the “committal route” as envisaged by Section 306 (5) (a) (ii) Cr.P.C. Non-examination of the approver as a witness under Section 306 (4) (a) Cr.P.C. in such a case goes to the very root of the matter and will definitely vitiate the trial.
• In a case as above where an accomplice is tendered pardon by a Magistrate under Section 306 (1) Cr.P.C., it is not for the investigating agency to decide whether the case has to take the “committal route” or the “direct route” to the Special Court. It is already provided under the scheme of Section 306 Cr.P.C. In such a case, the charge-sheet is to be filed before the Magistrate and not before the Special Court.
• Where pardon to an accomplice has not been tendered in such a case during investigation, the charge-sheet can be filed directly before the Special Court which can take cognizance of the offence without a committal under Section 5 (1) of the Prevention of Corruption Act, 1988. If thereafter, a request is made to tender pardon to an accomplice, the Special Court alone can do so under Section 5 (2) of the P. C. Act, 1988 and in such an event, the examination of the approver as a witness under Section 306 (4) (a) Cr.P.C. will stand by-passed.

Author is Former Judge, High Court of Kerala. Views Are Personal.