Supreme Court has held that State Through CBI, Chennai Vs. V. Arul Kumar has held that a Magistrate is duly empowered to grant tender of pardon even in respect of the cases which are triable by the Session Court or by the Special Judge for the offences under Prevention of Corruption Act.
Setting aside the Judgment of the High Court which had held that a magistrate is not empowered to grant tender of pardon in cases triable by Special Judge for offences under Prevention of Corruption Act, the Apex Court bench comprising of Justices A.K. Sikri and R.K. Agrawal observed that in those cases where charge sheet is filed before the Magistrate, Magistrate would be empowered to exercise the power under Section 306 CrPC to grant tender of pardon.
MAGISTRATE CAN GRANT TENDOR OF PARDON IN PRE COMMITTAL STAGES
Referring to provisions of Criminal procedure code, the bench observed “Sub-section (1) of Section 306 of the Code very categorically and unambiguously 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 12 Section 306 of the Code. Sub-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 by the Court of a Special Judge appointed under the Criminal Law Amendment Act, 1952. Thus, even where the cases are triable by a Special Judge, the Metropolitan Magistrate is authorised to grant tender of pardon. Sub-section (3) and sub-section (4) outline the procedure that is to be followed in discharging this function. Sub-section (5), which is material for our purpose, stipulates that after the person has accepted a tender of pardon made under sub-section (1) and has been examined under sub-section (4), the Magistrate taking cognizance of the offence will not make any further inquiry in the case and commit it for trial to a Court of Special Judge, if the offence is triable exclusively by that Court. This sub-section makes the position beyond any pale of doubt, that even when an offence is triable by a Session Judge, the Magistrate has the requisite power to take cognizance and grant tender of pardon and, thereafter, commit the case to the Special Judge for trial.”
POSITION DIFFERENT IN POST COMMITTAL STAGE
The Court further said “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. Section 308 of the Code is of no consequence to decide the controversy before us as it deals with the trial of person not complying with conditions of pardon.”
PC ACT DOES NOT LIMIT THE POWER OF MAGISTRATE TO TAKE COGNIZANCE
Observing that Section 5(1) of the Prevention of Corruption Act does not limit the power of Magistrate to take cognizance, said that it only waives mandatory requirement of Section 193 of the Criminal Procedure Code. The Court said "Sub-section (1) of Section 5, while empowering a Special Judge to take cognizance of offence without the accused being committed to him for trial, only has the effect of waiving the otherwise mandatory requirement of Section 193 of the Code. Section 193 of the Code 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.”
MAGISTRATE CAN GRANT TENDOR OF PARDON WHEN CHARGESHEET IS FILED BEFORE HIM
Holding that magistrate would not be powerless to decide on applications under Section 306 CrPC, the Court said “In those cases where charge sheet 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 of offence directly, as he is authorised to do so in view of Section 5(2) of PC Act, Section 306 of the Code would get bypassed and as the Special Judge has taken cognizance, it is Section 307 of the Code which would become applicable. Sub-section (2) of Section 5 of PC Act makes this position clear by prescribing that it is the Special Judge who would exercise his powers to tender of pardon as can clearly be spelled out by the language employed in that provision. Section 5(2) is to be read in conjunction with Section 5(1) of the PC Act. In those cases where charge sheet is filed before the Magistrate, he will have to commit it to the Special Judge. “
WRONG QUESTION OF LAW FRAMED BY HIGH COURT
The question framed by High Court was Whether the Special Judge is competent to Tender of Pardon under Section 306 Cr.P.C. And Section 5(2) of P.C. Act. Setting aside the judgment, theApex court said: “The question was not as to whether Special Judge is competent to tender of pardon. The question was as to whether Magistrate rightly passed the order of tender of pardon. The High Court took circuitous route by answering that Special Judge was competent and from that concluded that Magistrate was not competent.”
Read the Judgment here.