Approver Need Not Be Examined As Witness By Magistrate When Cognizance Is Taken By Special Court Under PC Act : Supreme Court

The Supreme Court has held that when the Special Court chooses to take cognizance directly under Section 5(2) of the Prevention of Corruption Act, the question of Approver being examined as a witness in the Court of the Magistrate as required by Section 306 (4)(a) of the Code of Criminal Procedure does not arise.Section 306(4) CrPC contemplates that every person accepting a tender of pardon be examined as a witness both in the Court of the Magistrate taking cognizance and in the subsequent trial. The requirement of Section 306(4)(a) CrPC is relaxed in cases falling under Section 307 CrPC, which empowers the Court to which the case is committed for trial, itself to grant pardon. The Apex Court reiterated that where the Special Judge takes cognizance of offence directly, Section 306 of the Code would get by-passed it is Section 307 of the Code which would become applicable. A Bench comprising Justice V. Ramasubramanian and Justice Pankaj Mithal passed the judgment in a case pertaining to allegations of criminal conspiracy to cheat BHEL. The Apex Court acquitted the accused persons who were convicted by the Special Court for CBI and whose appeals were dismissed by the Madras High Court. Factual Background Seven persons were charged for offences punishable under Section 120B read with Sections 420, 468, Section 471 read with Section 468 and Section 193 of the Indian Penal Code and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act. Four of the accused persons were officers of BHEL, Trichy and three others were employed in private enterprises. The prosecution's case was that the accused persons entered into a criminal conspiracy to cheat BHEL in ward of contract for construction of desalination plants. Pursuant to the conspiracy, the then Executive Director of BHEL (ED), one of the accused, instructed the DGM to go for limited tenders flouting the procedure of pre-qualification of prospective tenderers before inviting bids. The ED dictated name of four bogus firms along with M/s. Entoma Hydro Systems for inviting limited tenders. Accordingly, the DGM proposed the names of five firms, which included the four bogus firms along with two companies. Eventually, the tender committee consisting of the DGM and two of the accused persons processed the name of the firms and recommended the award of contract to Entoma though the said firm did not have requisite expertise. The Committee also recommended sanction of interest free mobilisation in violation of existing practice. An interest free mobilisation advance of INR 4.32 crores was paid to the firm. A certain portion of the advance was diverted to a sister concern. The Special Court acquitted one and convicted four; two of the accused persons died during the pendency of trial. Four appeals were filed by the convicted persons before the Madras High Court. These appeals were eventually dismissed. The convicted persons approached the Supreme Court in four criminal appeals. During the pendency of the appeal one of the convicted persons passed away. Analysis by the Supreme Court Grant of pardon The FIR was filed against four persons. One of them (DGM) had turned Approver. He gave a confession statement under Section 164 of the CrPC before the Magistrate on the basis of which prosecution filed a petition under Section 306 CrPC for the grant of pardon before the Chief Judicial Magistrate. The Approver was summoned before the Additional Chief Judicial Magistrate, who informed him of the consequences of his action and adjourned the matter. On the next date of hearing the confession statement was read out to him and the Approver was asked if the statement was made by him voluntarily. Once he responded in the affirmative, the Additional Chief Judicial Magistrate granted pardon to the Approver and thereafter he was treated as a prosecution witness before the Special Court. One of the accused assailed before the Apex Court the procedure of grant of pardon followed in the present case. It was contended that the Approver should be examined twice, once as a court witness before committal and then as a prosecution witness at the time of trial, which is a mandatory requirement under Section 306(4)(a) CrPC. It was further argued that if the Magistrate, who grants pardon fails to examine him as a witness as soon as pardon is accepted by the approver, the evidence of the approver is liable to be shunned. It was also submitted that the requirement of Section 306(4)(a) CrPC is relaxed in cases falling under Section 307 CrPC, which empowers the Court to which the case is committed for trial, itself to grant pardon. However, in the present case Section 307 CrPC would not be applicable since the case was not committed by the Additional Chief Judicial Magistrate to the Special Court. The Court examined Section 306, 307 of the CrPC and Section 5 of the Prevention of Corruption Act in this regard. It noted that Section 306(1) divides a criminal case into three stages -...

Approver Need Not Be Examined As Witness By Magistrate When Cognizance Is Taken By Special Court Under PC Act : Supreme Court

Sohini Chowdhury

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