# IQBAL SINGH v. STATE (DJ;\Llli ADMINISTRATION) & ORS

- **Citation:** [1978] 2 S.C.R. 174
- **Court:** Supreme Court of India
- **Decided:** 1977-11-09
- **Bench:** A. C. Gupta, P. S. Kailasam
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/iqbal-singh-v-state-dj-llli-administration-ors-7337
- **Pages:** 4

## Headnote

Cri!nina.l Law A1nendment Act, 1952, s. S(l)-Jurisdiction of Special Judge~
whether limited by a grant of pardon by Magistrate u/s. 337(1), Cr.P.C., 1898Post-pardon application of s. 8(1), whether violatire of .4r!icle 14, Constitution of India.
A charge-sheet agamst the appellant and two others, \Vas filed before
the
Special Judge, Delhi u/s. 120-B I.P.C. read with ss. 161 and 165-A, 1.P.C.
and s. 5(2) of the Prevention of Conuption Act,
1947. Earlier,
at the
investigation stage, the Chief Judicial Magistrate, Delhi, bad granted pardon to
an approver u/s. 337(1) Cr. P.C., 1898. The appellant applied for
getting
the proceeding quashed, but his application was dismissed, first by the Special
Judge, ·and thereafter by the High Court u/ Art. 227 of the Constitution anct
'· 482. Cr.P.C .. 1898.
The appellant contended before this Court,
that, on the
grant of such apardon, the application of s. 8(1) of the Criminal Law Amendment Act, 1952
ceases for the reason that on the chargesheet being filed before a Magistrate,
the accused can have the approver's evidence at the trial tested
against his
statement before the Magistrate, while he is denied this opportunity where thechargesheet is filed before the
Special Judge, thus rendering s. 8(1) of ithe
Criminal Law Amendment Act if applied to such a case discriminatory, and
violative of Art. 14 of the Constitution.
Dismissing the appeal the Court,
HELD: (! J Section 337 (2-B), under which the Magislrnte is required to
send the case for trial to the Special Judge, after examining the approver,
does not in any way affect the jurisdiction of the Special Judge.
BY _enacting
sub-section (2B) in 1955, if the legislature sought to curb the power given to
the Special Judge by s. 8(1) of the Criminal Law Amendment Act. 1952. it
\vould have expressed its intention clearly. [177 B·C]
(2): The fact that the approver's evidence cannot be tested agairut any
previous statement does not make any material difference to the detriment of
the accused, transgressing Article 14 of the Constitution. The Special Judge.
in any case., v,;11 have to apply the well established tests for the appreciation
of the acco.mplice's evidence. The mere availability of two procedures woUld
not justify the quashing of a provision as being violative of
~.\rt. 14, unles:'j
there is substantial and qualitative difference between the two procedures
!!O
that one is really and substantially more drastic and
prejudicial
than the
other. [177 D-F]
G
Maganlar Chag[!anlal (P) Ltd. v. Mt1nicipal Corporatiqn of Greater Botnf')(IJ
and Ors. [1975] 1 SCR l, applied.
H
CRIMINAL APPELLATE JURISDICATION : Criminal Appeal No. 60 di.
1977.
Appeal by special leave from the Judgment and Order dated 10.9.76
of the Delhi High Court in Criminal Mis. (Main) N(). 84 of 1976.
A. K. Sen, Bishamberlal and B. B. Lal for the Appella11t.
P. N. Lekhi and R. N. Sachthey for Respondent No. 1.
' .
IQBAL SINGH v. STATE (Gupta, J.)
175

## Text

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174
IQBAL SINGH
v.
STATE (DJ;\Llli ADMINISTRATION) & ORS.
November 9, 1977
[A. C. GUPTA AND P. S. KAILASAM, JJ.]
Cri!nina.l Law A1nendment Act, 1952, s. S(l)-Jurisdiction of Special Judge~
whether limited by a grant of pardon by Magistrate u/s. 337(1), Cr.P.C., 1898Post-pardon application of s. 8(1), whether violatire of .4r!icle 14, Constitution of India.
A charge-sheet agamst the appellant and two others, \Vas filed before
the
Special Judge, Delhi u/s. 120-B I.P.C. read with ss. 161 and 165-A, 1.P.C.
and s. 5(2) of the Prevention of Conuption Act,
1947. Earlier,
at the
investigation stage, the Chief Judicial Magistrate, Delhi, bad granted pardon to
an approver u/s. 337(1) Cr. P.C., 1898. The appellant applied for
getting
the proceeding quashed, but his application was dismissed, first by the Special
Judge, ·and thereafter by the High Court u/ Art. 227 of the Constitution anct
'· 482. Cr.P.C .. 1898.
The appellant contended before this Court,
that, on the
grant of such apardon, the application of s. 8(1) of the Criminal Law Amendment Act, 1952
ceases for the reason that on the chargesheet being filed before a Magistrate,
the accused can have the approver's evidence at the trial tested
against his
statement before the Magistrate, while he is denied this opportunity where thechargesheet is filed before the
Special Judge, thus rendering s. 8(1) of ithe
Criminal Law Amendment Act if applied to such a case discriminatory, and
violative of Art. 14 of the Constitution.
Dismissing the appeal the Court,
HELD: (! J Section 337 (2-B), under which the Magislrnte is required to
send the case for trial to the Special Judge, after examining the approver,
does not in any way affect the jurisdiction of the Special Judge.
BY _enacting
sub-section (2B) in 1955, if the legislature sought to curb the power given to
the Special Judge by s. 8(1) of the Criminal Law Amendment Act. 1952. it
\vould have expressed its intention clearly. [177 B·C]
(2): The fact that the approver's evidence cannot be tested agairut any
previous statement does not make any material difference to the detriment of
the accused, transgressing Article 14 of the Constitution. The Special Judge.
in any case., v,;11 have to apply the well established tests for the appreciation
of the acco.mplice's evidence. The mere availability of two procedures woUld
not justify the quashing of a provision as being violative of
~.\rt. 14, unles:'j
there is substantial and qualitative difference between the two procedures
!!O
that one is really and substantially more drastic and
prejudicial
than the
other. [177 D-F]
G
Maganlar Chag[!anlal (P) Ltd. v. Mt1nicipal Corporatiqn of Greater Botnf')(IJ
and Ors. [1975] 1 SCR l, applied.
H
CRIMINAL APPELLATE JURISDICATION : Criminal Appeal No. 60 di.
1977.
Appeal by special leave from the Judgment and Order dated 10.9.76
of the Delhi High Court in Criminal Mis. (Main) N(). 84 of 1976.
A. K. Sen, Bishamberlal and B. B. Lal for the Appella11t.
P. N. Lekhi and R. N. Sachthey for Respondent No. 1.
' .
IQBAL SINGH v. STATE (Gupta, J.)
175
The Judgment of the Court was delivered by
GUPTA J.,
This appeal by special leave is directed against an
-0rder of the Delhi High Court refusing to quash a proceeding pending
.against the appellant in the Court of the Special Judge, Delhi.
On or about November 28, 1973 a chargesheet against the appellant
and two others was filed before the Special Judge, Tis Hazari, Delhi,
1lllegiii1g facts constituting offences pumshable under section 120-BI
Indian
Penal
Code
read
with
sections
161
and
165A of
the
Indian Penal Code and
section
5 (2)
of the Prevention
of
Corruption
Act,
1947.
One Martin
Joseph
Fernandez had been arrested in com)ection with the case when it was
.at the stage of investigation.
He was produced before the Chief Judicial Magistrate, Delhi, who tendered a pardon to him under section
337(1) of the Code of Criminal Procedure, 1898 (hereinafter referred
to as the Code).
On December 12, 1975 the appellant applied to
the Special Judge for quashing the proceeding for want of sanction
under section l 97 of the Code and also on the ground of failure to
examine the said Martin Joseph Fernandez as a witness as required by
~uh-sections (2) and (2B) of section 337 of the Code.
The Special
Judge having dismissed the application, the appellant moved the Delhi
High Court under Art. 227 of the ConstiQition and section 482 of the
Code of Criminal Prncedure, 1973 for setting aside the order passed by
the Special Judge and quashing the proceeding.
On September 10,
1976 the High Court dismissed the appellant's petition and upheld the
prder of the Special Judge rejecting the prayer for quashing the proceeding.
Mr. A. K. Sen appearing for the appellant has not pressed the
ground of want of sanction and has confined his argument to the other
ground.
His contention is that once a pardon has been tendered to
a ·person at the stage of the investigation under section 337(1) of the
Code, the provision of section 8(1) of the Criminal Law Amendment
Act, 1952 empowering a Special Judge to take cognizance of offences
without the accused being committed to him for trial, ceases to apply
and the clmrgesheet in such a case mnst be filed before a competent
magistrate.
It is argued that in such a case letting the Special Judge
take cognizance of the offence under section 8 (I) of the Criminal Law
Amendment Act would make the, provision discriminatory offending
Article 14 of the Constitution.
The argument is built on sub-section
(2B) of section 337 of the Code nnder which the magistrate taking
cogtrizance of the o~ence has to examine the approver as a witness
before sendin~ the case for trial to the Court of the Special Judge.
To test this argument we may refer briefly to the relevant provision~
of 1he Code.
Section 337 ( 1) of the Code provides that in the case of
any offence specified therein, the District Magistrate, a Presidency
Magistrale. a Sub-Divisional Magistrate or any Magistrate of the first
class may at any stage of the investigation or enquiry into, or th!! tnal
of the offence may tender a pardon to any person supposed to have been
concernc(] .in the offence in any way on condition of his making a full
and true disclosure of the whole of the cricumstances within his knowledge relative to the offence.
Sub-section (2) of the section requires
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176
SUPREME COURT REPORTS
[1978] 2 S.C.R.
every person accepting a tender of pardon under this section to be
examined as a witness in the Court of the Magistrate taking cognizance of the offence and in the subsequent trial, if any. Under subsection (2A) where a person has accepted a tender of pardon and
has been examined under sub-section (2), the Magistrate before whom
the proceedings are pending if he finds reasonable grounds for belie,ving that the accused is guilty of an offence shall commit him for
trial to the Court of Sessions or' High Court as the ca,,e may be. Subsection (2B) on which the appellant relies reads :
"In every case where the offence is punishable under section 161 or section 165 or section 165A of the Indian Penal
Code or sub-section (2) of section 5 of the Prevention of
Corruption Act, 1947, and where a person has accepted a
tender of pardon and has been examined under sub-section
(2), then, notwithstanding anything contained in sub-section
(2A) ,_a Magistrate shall, without making any further inquiry, send the case for trial to the Court of the Spe:ial Judge
appointed under the Criminal Law Amendment Act, 1952."
Thus under sub-section (2B) in the case of an offence mentioned in the
sub-section the Magistrate has to send the case for trial to the Court of
the Special Judge without making any further inquiry as to whether
there are reasonable grounds for believing that the accused is guilty,
but after the approved has been examined under sub-section (2).
From these provisions it would appear that where a person has
accepted a tender of pardon under sub-section ( 1) of section 337 at the
stage of investigation in a case involving any of the offences specified.
in sub-section (2B), the prosecution can file the chargesheet either in
the court of a competent Magistrate or before the Special Judge wh•>
under section 8(1) of the Criminal Law Amendment Act, 1952 has
power to take cognizance of the offence without the accused being committed to him for trial.
It follows that if the Magistrate takes cognizance of the offence, the approver will have to be examined as a wit·
ness twice, once in the court of the Magistrate and again in the court of
the Special Judge to whom the Magistrate has to send the case for trial,
but if the chargesheet is filed directly in the court of the Special Judge,
he can be examined once only before the Special Judge.
This means.
that in a case where the chargesheet is filed in the, court of o. M.agistrate,
the accused gets an opportunity o~ having the evidence of the approver
at the trial tested against what he had said before the Magistrate the
accused is denied this opportunity where the chargesheet is filed in the
court of the Special Judge. Whether the accused will gs:t the advantage of the procedure which according to the appellant is more beneficial to the accused thus depends on the court in which the proceeding
is initiated, and, it is contended, if the choice of forum is left to the
prosecution, it will result in discrimination. Mr. Sen submits that the
only way to avoid this position is to read sub-section (1), (2) and
(2B) of section 337 of the, Code and section 8(1) of the Criminat
Law Amendment Act, 1952 together and to construe them in a way
to require that in every case where an accomplice is granted pardon,
the chargesheet must be filed in the court of a Magistrate.
T
IQBAL SINGH v. STATE (Gupta, J.)
177
We are unable to accept the contention.
It is clear from
the
A
scheme of section 337 that what is required is that a person who accepts
a tender of pardon must be examined as a witness at the different stage;
of the proceeding.
Where, however, a Special Judge takes cognizance
of the case, the occasion for examining the approver as a witness ames
only once. It is true that in such a case there would be no previous
evidence of the approver against which his evidence at the tr\al coultl
be tested. which would have been available to the accuseJ had the
B
proceeditig been initiated in the court of a Magistrate who under subsection (2B) of section 337 of the Code is required to send the case tm
trial to the special Judge after examining the approver.
But we do not
find anything in sub-section (ZB) of section 337 to suggest that it
affects in any way the jurisdiction of th.e Special Judge to take cognizance of an offence without the accused being committed to him for
trial.
Sub-section (2B) was inserted in section 337
in
1955
by
C
AmenJinent Act 26 of 1955.
If by enacting sub-section (2B) in 1955
the legislature sought to curb the power given to the Special Judge by
•ection 8(1) of the Criminal Law Amendment Act, 1952, there is no
reason why the legislature should not have expressed its intention
dearly.
Also, the fact that the approver's evidence cannot be tested
against any previous statement does not seem to us to make any material
difference to the detriment of the accused transgressing Article 14 of
D
the Constitution.
The special Judge in any case wilJ have to apply
the well established tests for the appreciation of the accomplice's
evidence. This Court in Magan/al Chhagganlal (P) Ltd. v. Municipal
Corporation of Greater Bombay and others(') held that mere availability of two procedures would not justify the quashing of a provision
as being violative of Article 14 and that "what is necessary to
attract the Inhibition of the Article is that there must be substantial
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and qualitative difference between the two procedure so that one is
really and substantially more drastic and pre.judicial than the other ... "
In our opiniol), there is no such qualitative difference in the two
procedures whether a witness is examined once or twice .does not in our
opinion make any such substantial difference here that one of them
couli! be described as more drastic than the other.
The appeal is
accordingly dismissed.
F
M.R.
Appeal dismissed.
(I) [1975] l S.C.R. 1