NIA Court Can Entertain Application For Tender Of Pardon Preferred At Investigation Stage U/S 306 CrPC: Kerala High Court

The Kerala High Court on Tuesday held that a Special Court constituted under the National Investigation Agency Act can invoke the powers under Section 306 of the Code of Criminal Procedure (CrPC) to grant pardon to an accused at the post cognizance stage.

A Division Bench of Justice K. Vinod Chandran and Justice C. Jayachandran also opined that it is always advisable for a Special Court to consider an application for grant of pardon by itself if cognizance is taken directly, though it can be referred to the Chief Judicial Magistrate.

"Being a court of original criminal jurisdiction and having been specifically bestowed with the power to take congnizance, without a formal commitment of the case, a Special Court can exercise the powers to grant pardon, either under Section 306 or under Section 307, at any stage of the proceedings; of course subject to the propriety, good faith and bona fides of exercise of such power, which also has to be made judiciously."

The Court added that pardon can be granted at the post cognizance stage to any person who has not been arraigned as an accused in the final report, as long as they were privy to the offence. 

"The person to whom pardon is to be tendered need not necessarily be an accused; rather it is not a sine qua non. The fact that in many an occasion, pardon is being granted to an accused person, is no indication for a conclusion that such person should always be arraigned as an accused person."

A Srilankan fishing boat with huge quantities of narcotic drugs, AK-47 rifles and ammunition was seized by the Narcotic Control Bureau. A case was registered against the six Srilankan nationals found onboard and they were accordingly arrested. However, in the custodial interrogation, the role of the appellant, a member of the proscribed organisation Liberation Tigers of Tamil Eelam (LTTE), was revealed and he was soon arrested. 

The statements of the accused under S.164 CrPC were recorded by the Judicial First Class Magistrate. Later, the NIA sought tender of pardon to certain accused pointing out that they were neither arraigned as accused nor as witnesses in the final report. The NIA Special Court took cognizance of the case and allowed NIA's application. The appellant moved the High Court challenging the same. 

The appellant argued that an application preferred at the investigation/pre-cognizance stage ought to have been forwarded to the Chief Judicial Magistrate for the purpose of grant of pardon; and having failed to do so, the Special Court cannot consider such an application under Section 307 of CrPC, since that Section contemplates power only at the post committal stage.

The Court initially examined multiple precedents on the powers of a Special Court in the matter of grant of pardon. It was accordingly concluded that being a court of original criminal jurisdiction, the Special Court has all the powers of such a Court under the Code, including those of Sections 306 to 308, the same not having been excluded specifically or otherwise. 

The Bench thereafter analysed the relevant statutory provisions in this regard, particularly Section 16(3) of the NIA Act which provides that a Special Court shall have all the powers of a Sessions Court for the purpose of the trial. It was found that the absence of an enabling provision to grant pardon would not fetter a Special Court under the NIA Act in any manner.

Further, it was observed that uninfluenced by the stage of investigation, inquiry or trial, a Special Court can entertain an application for grant of pardon, since it has the powers under Sections 306 and 307 of CrPC. This confirmed the finding that an application for tender of pardon preferred at the investigation stage can be entertained by the Special Judge. 

Therefore, the appellant's argument that a Special Court lacks power under Section 306 to entertain an application for tender of pardon preferred during the investigation stage was repelled. 

Moreover, the language employed in Sections 306 and 307 is not 'an accused person' but 'any person', which implies that the person to whom pardon is to be tendered need only be 'directly or indirectly concerned in or privy to' the offence. The Court added that a conscious non-employment of the term "accused person" in Sections 306 and 307 abundantly explains that the person neither has to be an accused person nor requires to be arraigned as an accused in the final report.

Before concluding, the Court also clarified that a co-accused has no locus standi to challenge an order for considering the tender of pardon sought by the investigating agency. 

Advocate Sangeetha Lakshmana appeared for the appellant and ASG S.Manu represented NIA in the matter. 

Case Title: Suresh Raj v. National Investigation Agency 

Citation: 2022 LiveLaw (Ker) 277

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