'Non-Cooperation During Investigation Is Irrelevant In Plea For Revocation Of Pardon': Delhi HC Dismisses ED's Plea Against Grant Of Pardon To Rajiv Saxena [Read Judgment]

The Delhi High Court has held that the condition of pardon of a court approver- to make "full and true disclosure"- applies to the proceedings before the Court, and do not encompass the proceedings during investigation. "Where the purpose of tendering pardon is obtaining of the evidence of the person, by, and before, the Court, the "full and true disclosure", required to be made by the person, to whom pardon is being tendered, has also, necessarily, to be before the Court," it was held. On this ground, the single-Judge bench of Justice C. Hari Shankar on Monday dismissed the Enforcement Directorate's plea for revocation of pardon granted to Rajiv Saxena, one of the accused in the VVIP Chooper Scam case. The court observed that the Dubai-based businessman was yet to be examined by the Trial Court, and merely because the Public Prosecutor had issued a "Certificate for revocation of pardon" under Section 308 (1) of CrPC, on the basis of investigation, would not lead to revocation of pardon. "Non-co-operation, during investigation, is not one of the circumstances contemplated, by Section 308 (1), as justifying issuance of certificate by the Public Prosecutor. Quite obviously, this is because the condition, whereunder pardon is granted to the accomplice, is candour before the court, and not candour before the investigating officer," the court held while terming the certificate of the Public Prosecutor to be a "futility". Background A Special CBI Court in Delhi had allowed Saxena to turn approver and had granted him pardon on March 25, 2019. The ED had thereafter moved the Special Court in Rouse Avenue Court against the grant of pardon contending that Saxena had exhibited bad faith, and had demurred from making a full and true disclosure of the facts and circumstances of the case, which was one of the essential conditions, subject to which pardon had been granted to him, by the Special Judge. The application however came to be dismissed on March 5 this year as premature, for Saxena was yet to depose before the court as a witness. The present judgment, which in the words of Justice Hari Shankar bears an interplay between Section 306 and Section 308 of CrPC, has been passed in ED's plea for quashing of the aforesaid order of the Special Court and for revocation of Saxena's approver status. Legal Provisions Section 306 of IPC empowers a Chief Judicial Magistrate or a Metropolitan Magistrate to tender pardon to an accused at any stage of the investigation or inquiry, on condition of his making a full and true disclosure of the whole of the circumstances within his knowledge relative to the offence. Sub-section 4(a) thereunder stipulates that every person accepting a tender of pardon shall be examined as a witness in the Court of the Magistrate taking cognizance of the offence and in the subsequent trial, if any. Section 308(1) of the Code contemplates trial of a person who has accepted a tender of pardon but in the opinion of the Public Prosecutor has either by willfully concealing anything essential or by giving false evidence, not complied with the condition on which the tender was made. Examination by court is mandatory The High Court has held that both the above provisions, i.e. Section 306(4) and 308(1) are essential for revocation of pardon. It was clarified that examination of the approver, under Section 306 (4) is, "ex-facie, mandatory". "Examination of the approver, under Section 306 (4) is, ex-facie, mandatory. Thereafter, the proceeding may follow one of two paths. Absent any infraction, by the approver, of the conditions of pardon, the trial of the main offence continues, and the approver is liable to be arraigned as a prosecution witness therein. If, however, the approver breaches the conditions of pardon, by concealing material facts or tendering false evidence, the Public Prosecutor is empowered to so certify, in which case the approver becomes an accused, in respect of the offence for which pardon had been tendered to him, and becomes liable to be tried for the said offence," the court expounded. Certificate of Public Prosecutor u/s 308(1) CrPC is irrelevant before examination of approver in court The High Court held that concealment of essential facts, or tendering of false evidence, by the approver, has necessarily to relate to his evidence, as recorded "during trial" under Section 306 (4), and cannot relate to his conduct during investigation. Accordingly it held that the certificate of the Public Prosecutor, issued in the present case, was an exercise in "futility", inasmuch as it was not preceded by the recording of the evidence of the approver, under Section 306 (4), Cr PC. The court held, "Tendering of pardon, to an accomplice, under Section 306 (1), Cr PC, and his conversion, thereby, into an approver, has, inexorably, to be succeeded by his examination, as a...

'Non-Cooperation During Investigation Is Irrelevant In Plea For Revocation Of Pardon': Delhi HC Dismisses ED's Plea Against Grant Of Pardon To Rajiv Saxena [Read Judgment]

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