# LT. COMMANDER PASCAL FERNANDES v. THE STATE OF MAHARASHTRA & OTHERS

- **Citation:** [1968] 1 S.C.R. 695
- **Court:** Supreme Court of India
- **Decided:** 1967-09-28
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/lt-commander-pascal-fernandes-v-the-state-of-maharashtra-others-4159
- **Pages:** 10

## Headnote

,,
LT. COMMANDER PASCAL FERNANDES
v.
THE STATE OF MAHARASHTRA & OTHERS
September 28, 1967
(M. ffIDAYATULLAH, V. BHARGAVA AND C. A. VAIDIALINGAM, JJ.] B
Criminal Law Amendment Act· (4'> of 1952), s. 8(2) and Criminal
Procedure Code (Act 5 of 1898), ••· 337 and 338-Power to tender
pardon under Criminal Law Amendment Act-If e.vercisable onlv
on the application of prosecution-If governed bu •. 54-0, Cr.P.C.-
Matters to be considered before tendering pardon.
c
Three sui;Rrior Government officers, an upper division clerk
and four others were being tried before the Special Judge, appointed under s. 6 of the Criminal Law Amendment Act,
1952, for
various offences including criminal misconduct under s. 5 (2) of the
Prevention of Corruption Act, 1947. The clerk applied to the Court
praying that he should be made an approver and examined as a
prosecution witness. The application was opposed by the other co.
accused but the Special Judge, acting under s. 8(2) of the Criminal D
Law Amendment Act. tendered a conditional pardon to him and
ordered that he should be examined as an approver and witness
for the prosecution. The appellant, who was one of the co-accused,
filed a revision in the High Court. In the High Court, the prosecution stated that it had no objection to the grant of pardon to the
clerk and' that it even welcomed it. The High Court thereupon confirmed the order of the Special J udg!a.
E
In appeal to this . Court; the appellant contended . that : (1)
differences between ss. 337 and 338 Cr. P. C., and s. 8(21 of the
Criminal Law Amendment Act, show that the powers of the Special Judge, in tendering pardon under s. 8(2), are limited to an
application by the prosecution in that behalf .and that the Special
Judge could not act soo motu; (2) the powers of the Special Judge
under s. 8(2) are circumscribed by the considerations that underF
lie s. 54-0 Cr. P. C.,, and that therefore he could not acquit· one accused so as to be able to convict another; and (3) the Special· Judge
had not exercised his di•rr•"n" judicially and properly,
Held: (1) Under s. 7(1) and (3) of the Criminal Law Amend,
ment Act,
notwithstanding anything contained in the Criminal
Procedure Code, the offences under ss. 161 or 165 or 165A I.P.C.,
and s. 5(2) of the Prevention of Corruption Act, 1947, shall be tried G
only by a Special Judge. Therefore, in the case of an offence under
s. 5(2) of the Prevention of Corruption Act, under s. 337(11) Cr.P.C.,
a Magistrate, with a view to obtaining the evidence of any person
supposed to have been directly or indirectly concerned in or privy
to an offence, may tender pardon to him; but when that person
has accepted the tender of pardon and has been examined under
.s. 337(2), the Magistrate must, without making any further enquiry
send the case to the Spacial Judge for trial under s .. 337(2B). The B
provisions of s. 337(1) thus apply at the stage of investigation or
inquiry before the case reaches the Special Judge. When there ii
no such tender of pardon to any one, the case shall be forwarded
for trial, to the Special Judge and his powers commence after he
60~
696
8U'PllEllli COURT BBPOllTB
[1968] 1 S ,C.B.
.& bu taken cognizance of the case and are available to him throughout the trial, When the case is before him, a tender of pardon can
only be by him. But where the offences are other than those under
11. 161, 166, ll!M, I.P.C. and s. 5(2) Prevention of Corruption Act,
when there Is a committal by the Magistrate under s.
337(2A),
s. 338 Cr.P.C. provides that the court' to which commitment is made
could not only tender pardon itself, but could also order the committing Magistrate or District Magistrate to do so. Such a power
la not available to the Special Jiidge, because, there is no commitB ment when he takes cognizance: These differences, In the powers
of the Special Judge and the courts constituted under the Criminal
Procedure Code do not, howe'1er, show that the powers of the
Special Judge could only be exercised if t

## Text

,,
LT. COMMANDER PASCAL FERNANDES
v.
THE STATE OF MAHARASHTRA & OTHERS
September 28, 1967
(M. ffIDAYATULLAH, V. BHARGAVA AND C. A. VAIDIALINGAM, JJ.] B
Criminal Law Amendment Act· (4'> of 1952), s. 8(2) and Criminal
Procedure Code (Act 5 of 1898), ••· 337 and 338-Power to tender
pardon under Criminal Law Amendment Act-If e.vercisable onlv
on the application of prosecution-If governed bu •. 54-0, Cr.P.C.-
Matters to be considered before tendering pardon.
c
Three sui;Rrior Government officers, an upper division clerk
and four others were being tried before the Special Judge, appointed under s. 6 of the Criminal Law Amendment Act,
1952, for
various offences including criminal misconduct under s. 5 (2) of the
Prevention of Corruption Act, 1947. The clerk applied to the Court
praying that he should be made an approver and examined as a
prosecution witness. The application was opposed by the other co.
accused but the Special Judge, acting under s. 8(2) of the Criminal D
Law Amendment Act. tendered a conditional pardon to him and
ordered that he should be examined as an approver and witness
for the prosecution. The appellant, who was one of the co-accused,
filed a revision in the High Court. In the High Court, the prosecution stated that it had no objection to the grant of pardon to the
clerk and' that it even welcomed it. The High Court thereupon confirmed the order of the Special J udg!a.
E
In appeal to this . Court; the appellant contended . that : (1)
differences between ss. 337 and 338 Cr. P. C., and s. 8(21 of the
Criminal Law Amendment Act, show that the powers of the Special Judge, in tendering pardon under s. 8(2), are limited to an
application by the prosecution in that behalf .and that the Special
Judge could not act soo motu; (2) the powers of the Special Judge
under s. 8(2) are circumscribed by the considerations that underF
lie s. 54-0 Cr. P. C.,, and that therefore he could not acquit· one accused so as to be able to convict another; and (3) the Special· Judge
had not exercised his di•rr•"n" judicially and properly,
Held: (1) Under s. 7(1) and (3) of the Criminal Law Amend,
ment Act,
notwithstanding anything contained in the Criminal
Procedure Code, the offences under ss. 161 or 165 or 165A I.P.C.,
and s. 5(2) of the Prevention of Corruption Act, 1947, shall be tried G
only by a Special Judge. Therefore, in the case of an offence under
s. 5(2) of the Prevention of Corruption Act, under s. 337(11) Cr.P.C.,
a Magistrate, with a view to obtaining the evidence of any person
supposed to have been directly or indirectly concerned in or privy
to an offence, may tender pardon to him; but when that person
has accepted the tender of pardon and has been examined under
.s. 337(2), the Magistrate must, without making any further enquiry
send the case to the Spacial Judge for trial under s .. 337(2B). The B
provisions of s. 337(1) thus apply at the stage of investigation or
inquiry before the case reaches the Special Judge. When there ii
no such tender of pardon to any one, the case shall be forwarded
for trial, to the Special Judge and his powers commence after he
60~
696
8U'PllEllli COURT BBPOllTB
[1968] 1 S ,C.B.
.& bu taken cognizance of the case and are available to him throughout the trial, When the case is before him, a tender of pardon can
only be by him. But where the offences are other than those under
11. 161, 166, ll!M, I.P.C. and s. 5(2) Prevention of Corruption Act,
when there Is a committal by the Magistrate under s.
337(2A),
s. 338 Cr.P.C. provides that the court' to which commitment is made
could not only tender pardon itself, but could also order the committing Magistrate or District Magistrate to do so. Such a power
la not available to the Special Jiidge, because, there is no commitB ment when he takes cognizance: These differences, In the powers
of the Special Judge and the courts constituted under the Criminal
Procedure Code do not, howe'1er, show that the powers of the
Special Judge could only be exercised if the prosecution moved
first. On the contrary, there is nothing in the language of the section to show that the Special Judge must be moved by the prosecution. The section is enabling and its terms are wide. Therefore,
a 'the Special Judge may consider an offer by one of the accused to
turn approver. [701 F-G; 703 B-E, H; 704 A].
(2) Section 540, Cr.P.C., confers powers on the court to summon
material witnesses at any stage of any inquiry or trial or other
proceeding under the Code. The considerations for summoning
persons as court witnesses are different from the considerations on
which a tender of pardon is made. It is not, therefore, PQISfble to
D read s. 540 either with ss. 337 and 338, Cr. P.C., or with s. 8(2} of the
Criminal Law Amendment Act. [704 B-D].
(3) Ordinarily, it is for the prosecution to ask that a particular
accused out of several may be tendered pardon. But when the
accused applies directly, the Special Judge must first refer the request to the prosecution, because, the State may not need an ap..
prover's testimony and tnerefore may not desire that any accused
B should be pardoned; or, it may not like the tender of pardon to the
pertlcular accused who may be the worst offender. It is only when
the prosecution joins in the request that the Special Judge should
exercise his powers. In exercising his. discretion, the Special Judge
must bear in mind that the interests of the accused are just as
important as those of the prosecution, and, no procedure or action
can be in the interest of justice if it is prejudicial to an accused.
p Also, before he tenders pardon he must know the nature of the
evidence that the person seeking the pardon is likely to give, the
nature of his complicity and the degree of his culpability in relation to the offence and the other co-accused. In this case, the Spe.
cial Judge made no effort to find out what the applicant had to
dlsclOlle. But since the Public Prosecutor stated in the High Court
that the prosecution
also considered favourably the tender of
pardoo to the applicant, this Court would not interfere with the
& order of the High Court. (704 D-E. H; 705 B-FJ.
Reg v. Robert Dunne, 5 Cox Cr. Cases 507, referred to.
CRIMINAL APPELLAiTE JURISDICTION:
Criminal Appeal No
148 of 1967.
Appeal by special leave from the judgment and order dated
II July 20, 1967 of the Bombay High Court in Criminal Revision
Application No. 439 of 1967.
/. C. Bhatt, and B. R. Agarwala, for the appellant ..
H. R. Khanna and R. N. Sochthey, for respondent No. 1.
•
1
FERNANDES V. MAHARASHTRA (HidayaJJullah, J.)
697
A .K. Sen, Bishamber Lal and H.K. Puri, for respondent A
No. 8.
The Judgment of the Court was delivered by
Hidayatullah, J.-This is an appeal by special leave against
an order of the High Court of Bombay dated July 20, 1967 dismissing a criminal revision application filed by the
appellant
against an order of the Special Judge, Bombay tendering pardon B
to a co-accused under sec. 8(2) of the Criminal Law Amendment
Act of 1952. The appellant is being tried before the Special Judge,
Bombay along with seven
others for conspiracy to cheat the
officers of the Naval Dockyard and under s. 5(2) of the Prevention of Corruption Act, 1947. The substantive charges
against
the several accused are different but it is not necessary to mention C
them here. The gist of the accusation is that the several accused
had entered into criminal conspiracy to che<it the authorities of
the Naval Dockyard. Material purchased locally was certified to
be of superior quality while it was, in fact, inferior. In this and
in diverse ways the Naval Dockyard Authorities were cheated to
the tune of Rs. 3,65,000 and odd. Among the array of the accusD
ed in the case are three contractors (accused Nos. 5, 6 and 7) and
their servant (accused No. 8). and four Government servants of
whom accused No. 1 is the appellant before us. Of the remaining
three Government servants, accused No. 4 (M. M. Jagasia) was
'lll Upper Division Clerk working as Office Supdt. at the material
time drawing a salary of Rs. 200 per month. Against Jagasia there E
is yet another charge, namely, that he is in possession of property
disproportionate to his known sources of income which fact, if
proved. is likely to lead to a presumption under the Prevention
of Corruption Act. Evidence has
already
been
accumulated,
which is calculated to show that he is in possession of three motor
cars, a building valued at Rs. 28,000 and odd and currency notes F
in a locker of the value of Rs. 16,400 in addition to gold and other
ornaments and his bank balance.
The case appears to have been previously before Mr. R. K.
Joshi. Special Judge, Greater Bombay and he framed charges
against the accused in the case, on the basis of material furnished
by the prosecution under the provisions of s. 173 of the Code G
of Criminal Procedure. The case then went before the present
Special Judge, Mr. N. M. Indurkar. The case was fixed for trial
from April 24, 1967. On April 20. 1967, Jagasia made an application to the Court praying that he should be tendered pardon
and made an approver and examined as a prosecution witness.
The reason given by Jagasia was that he had full and complete
knowledge of all that had taken place between the officers and H
the contractors and that he was in a position to disclose how the
conspiracy was formed and the several offences committed. He
said that he was making this offer "in order to unburden the
mental tension and in order to help the cause of justice". He also
698
SUPREME COURT REPORTS
[1968] 1 s.o .•.
A stated that he had not been given any threat, promise or any
inducement by any police officer and that he was
making the
application voluntarily.
The application of Jagasia was stoutly opposed by his coaccused, particularly the appellant before us. It was contended
on his behalf thait the granting of pardon to secure evidence,
whether under the Code of Criminal Procedure or under s. 8(2)
B of the Criminal Law Amendment Act, 1952, was essentially for
the prosecution to consider in the first instance; that the application being made after the framing of the charges was not legally
tenable; tha,t the prosecution considered the evidence sufficient
for the successful prosecution of all the a.ccused including Jagasia
himself; that the evidence against Jagasia was likely to be fortiC fied by the presumption under the Prevention of Corruption Act
and that the grant of pard\Jn to him would be an act of favour
to him and highly prejudicial to the defence of other accused. The
Special Judge, Grea.ter Bombay, after hearing arguments tendered
a conditional pardon to Jagasia
and
ordered that he shall be
examined as an approver and witness for the prosecution. SimulD taneously the learned Judge ordered that Jagasia's statement be
recorded by the police under s. 162(161) of the Code of Criminal
Procedure and copies thereof supplied to the other accused in
good time before the hearing next started.
The appellant herein filed revision in the High Court and
urged the same grounds which we have set out above. The proE secution in the High Court stated that it had no objection to the
grant of pardon and that it even welcomed the opportunity of
having the evidence of an approver, through tender of conditional
pardon to Jagasia. The High Court, after hearing the arguments,
passed the order, now under appeal, upholding the tender of
conditional offer of pardon to Jagasia.
F
In this appeal Mr. J. C. Bhatt contends that the powers of
the Special Judge in tendering conditional pardon under s. 8(2)
of the Criminal Law Amendment Act are limited to an application by the prosecution in that behalf and the Special Judge
cannot act suo motu without being invited by the prosecution to
consider the tender of pardon to one of the accused before him.
G Mr. A. K. Sen in supplementing the arguments on behalf of one
of the respondent co-accused further mged that the powers of
the Special Judge in securing additional evidence are circumscribed by considerations that underlie s. 540 of the Code and
therefore he can act in the interests of justice only and not with
a view to granting an acquittal to one of the accused so as to be
able to convict another. Both the learned counsel a:lso urge that
H in the present case the discretion, if any, vested in the Special
Judge under s. 8(2) of the Criminal Law Amendment Act has
not been judicially or even properly exercised. On behalf of the
State, Mr. H. R. Khanna contends that the powers of the Special
Judge to grant pardon are untrammelled and that the sections
•
•
699
,,. 'r
FERNANDES v. MARARASllTJ\A [Hirlayatllllah, Jj.
,,,I
both in the Code and in the Criminal Law Amendment Act bearA
ing upon the tender of pardon with a. view. to securin.g evidence
are not conditioned by any of the considerations on which learned
•
Counsel on the other side rely. He also submits that the discretion
is properly exercised because Jagasia is an insignificant person
compared with the contractors and the superior officers and they
are mainly responsible for defrauding the Government of much of
the money alfoged by the prosecution.
B
Before we discuss the validity or propriety of the tender of
pardon to Jagasia we shall refer briefly to the statuory provisions
on the subject of the tender of pardon. The topic of tender of
pardon to an accomplice is treated in the twenty-fourth chapter
of the Code as part of the general provisions as to inquiries and C
trials. Sections 337 to 339 and 339A contain all the provisions
which refer to courts of criminal jurisdiction established under
the Code. The Special Judge created under the Criminal Law
Amendment Act, 1952 (Act 46 of 1952) is not one of them. For
the cases triable by Special
Judges under the Criminal Law
Amendment Act a special provision is to be found in s. 8(2) of D
that Act, for tender of pardon to an accomplice, as part of the
procedure and powers of Special Judges. The section is set out
helow*. The second sub-section necessarily differs in some respects
from the provisions of the Code because the procedure of trial
before the Special Judge is different, but on the tender of pardon
by the Special Judge the provisions of ss. 339 and 339A of the E
Code apply. The tender of pardon by the Special Judge is deemed by fiction to be one tendered under
s.
338 of the Code for
*"8. Procedure and powers of special judges-(1) A special judge
may take cognizance of offences without the accused being committed to him for trial, and in trying the accused persons, shall follow F
the procedure prescribed by the Code of Criminal Procedure, 1898
(Act V of 1898). for thle trial of warrant cases by magistrates.
(2) A special judge may, with a view to obtaining the evidence
of any person supposed to have been directly or indirectly concerned in, or privy to an offence, tender a pardon to such person on
condition of his making a full and true disclosure of the whole
circumstances within his knowledge relating to the offence and to G
every other person concerned, whether as principal or abettor in
the commission thereof; and any pardon so tendered shall, for 'the
purposes of sections 339 and 339A of the Code of Criminal Procedure,
1898, be deemed to have been tendered under section 338 of that
Code.
(3) Save as provided in sub-section (1\ or sub-section (2) the
provisions of the Code of Criminal Procedure, 1898 shall. so f~r as
they are not inconsistent with this Act, apply to the proceedings H
before a special judge; and for the purposes of the said provisions
the court of the special judge shall be deemed to be a court of
session trying cases without a jury or without the aid of assessors
and the person conducting a prosecution before a special judge
shall be deemed to be a public prosecutor.
(4) . . . . . . . . "
7UU
SUl'REME COUR'l' REPORTS
[1968] l s.c.R.
A purposes of sections 339
and
339A. That section is set out
below**.
Mr. J. C. Bhatt contends on the basis of differences between
s. 8(2) of Act 46 of 1952 and ss. 337 and 338 of the Code that
the powers of the Special Judge are different and can only be
exercised if the prosecution moves first. We shall consider if the
B differences such as they are lead to any such
conclusion. To
begin with it may be noticed that the action of the Special Judge
is deemed to be action under s. 338 of the Code for purposes of
ss. 339 and 339A which apply equally. It is not necessary to refer
to ss. 339 a)1d 339A in detail. The former provides that where a
pardon has been tendered under s. 337 or 3'38 and the Public
c Prosecutor certifies that the person who accepted it has not wilfully complied with the conditions. the peroon may be tried for
the offence for which pardon was tendered but not jointly with
the co-accused and the prosecution must in that trial prove that
the conditions had not been complied with. The statement made
by the person may be tendered in evidence against him but a
D prosecution for the offence of giving false evidence in respect of
such statement is entertainable only w;th the High Court's sanction. Section 339A lays down the procedure for trial.
The sections being applicable equally to tender of pardon under the Code
and under the Criminal Law Amendment Act, no inference can
be drawn as suggested.
E
We next proceed to consider the differences between s. 338
of the Code and s. 8(2) of the Criminal Law Amendment Act.
The fiction in the latter part of s. 8(2) is ody this that the tender
of pardon is to be deemed to be one under s. 338 for purposes
of applying ss. 339 and 339A. The whole of s. 338 is not applic<tble. The power to order the Committing Magistrate
or the
F District Magistrate to tender pardon is not available to the Special
Judge because the fiction does not cover that part of s. 338.
Similarly. the opening words of s. 338 "at any
time after the
commitm,.,nt" are inappropriate to trials before Special Judges
because there is no commitment. Jt is obvious that the powers of
the Special Judge commence only after he has taken cognizance
G of the case, and they are available to him throughout the trial.
H
No conclusion such as is suggested by counsel can be drawn.
We may now proceed to consider the differences between s.
337 a11d s. 8(2). To do this we must look at some sections bf the
Criminal Law Amendment Act. Special Judges are appointed by
**"338. Power to direct tender of pardon-At any time after
commitment, but before judgment is passed, the Court to which the
commitment is made may, with the view of obtaining on the trial
the evidence of any person supposed to have been directly or indirectly concerned in, or priV)I to. any such offence. tender. or order
the committing Magistrate or the District Magistrate to tender a
pardon on the same condition to such person."
'
'
•
~·
..
FERNANDES v.
MAHARASHTRA (Hidaytu/Jah, J.)
701
the State Governments under s. 6 of the Criminal Law Amend- A
ment Act to try the following offences, namely: -
(a) an offence punishable under s. 161, section 165 or
section 165A of the Indian
Penal Code
(Act
XL V of 1860) or sub-section (2) of section 5 of
the Prevention of Corruption Act, 1947 (II of
1947);
B
(b) any conspiracy to commit or any attempt to
commit or any abetment of any of the offences
specified in clause (a).
Sub-section
(!) of s. 337 provides that "in the case of C
an offence triable exclusively by the High Court or Court of
Session or any offence punishable with imprisonment which may
extend to seven years or any offence under ss. 161, 165, 165A,. ..
the District Magistrate, a Presidency Magistrate, a Sub-divisional
Magistrate or any Magistrate of the first class ma.y, at any stage
of the investigation or inquiry into or trial of the offence, with a D
view to obtaining the evidence of any person supposed to have
been directly or indirectly concerned in or privy to the offence,
tender a pardon to such person on condition of his making a full
and true disclosure of the whole circumstances within his knowledge relative to the offence and to every other person concerned,
whether as principal or abettor, in the commission thereof". The E
proviso makes provision for situations where the offence is under
enquiry or trial. The section applies when the offence is not before
the Special Judge for trial. This will appear presently. The remaining sub-sections of s. 337 aTe procedural. Sub-section
(1 A\
enjoins the recording of reasons for tendering pardon and the
giving of a copy on payment or free of cost to the accused. Sub- F
section (2) lays down that a person accepting 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.
Sub-section (2Al requires thait if the Magistrate has reason to
believe that the accused is guilty of an offence, the accused shall
be committed to the Court of Session. Sub-section (2B) is an G
exception to sub-section (2A). It. provides:
"(2B) 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 Special Judge appointed under
the Criminal Law Amendment Act, 1952."
H
70:2
SUPREME COURT REPORTS
(1968) ] S.C.R
A Pausing here it may be mentioned that s. 7(1) and (3) of the
Criminal Law Amendment Act require that notwithstanding anything contained in the Code of Criminal Procedure or in any
other law, the offences specified in s.
6(1) shall be tried by a
Special Judge only and the Special Jud~ may also try any other
offence with which the accused may be charged under the Code
of Criminal Procedure at the same trial. These provisions between
B them establish two periods of time in relation to the tender of
pardon in so far as offences mentioned in ss. 6(1) and 7 (I) and
(3) of the Criminal Law Amendment Act are concerned. Before
the case reaches the Special Judge the provisions of s. 337(1) of
the Code of Criminal Procedure apply at the stage of investigation
or inquiry. If any Magistrate therein mentioned tenders pardon
C and the person who is tendered pardon is examined under subsection (2),
the Magistrate must, without making any further
inquiry, send the case to the Special. Judge, if the offence is one
of those mentioned in sub-section (2B) above set out.
In other
words. just as under sub-section (2A) the Magistrate has no option
but to commit the accused to the Court of Session or the High
D Court, under sub-section (2B), he has no option but to stop further inquiry and send the case to the Special Judge. When the
case is before that Special Judge the tender of pardon can only
be by the Special Judge and it is deemed to be one under s. 338
for purposes of s. 339 and 3'39A as explained above. The fiction
is necessary because no committal proceeding is necessary before
E a case is sent to a Special Judge. The words underlined by us
in s. 337(1) cannot apply to tender of pardon by Special Judges
as some of the words of s. 338 do not apply to them.
It follows that the powers of the Special Judge are not circumscribed by any condition except one. namely. that the action
F must be with a view to obtaining the evidence of any person
supposed to have been directly or indirectly concerned in, or
privy to an offence. The pardon so tendered is also on condition
of his making a full and true disclosure of the whole circumstances
within his knowledge relating to the offence and to every other
person concerned, whether as principal or abettor. The disclosure
must be complete as to himself and as to any other person concerned
G as principal or abettor. There is no provision for the recording
of reasons for so doing, nor is the Special Judge required to fur.
nish a copy to the accused.
There is no provision for recording
3 preliminary statement of the person.
There can be no doubt that the section is enabling and its
terms are wide enough to enable the Special Judge to tender a. parH don to any person who is supposed to have been directly or indireGt·
ly concerned in, or privy to an offence.
This must necessarily include a person arraigned before him. But it may be possible to
tender pardon to a person not so arraigned. The power so conferred can also be exercised at any time after the case is received for
trial and before its conclusion. There is nothing in the language
\.
..
'
~.
)
•
FERNANDES v.
MAHARASHTRA (lfidayatull111t, .!.)
70~
of the section to show that the Special Judge must be moved by A
the prosecution. He may consider an offer by an accused as in
this case. The action, therefore. was not outside the jurisdiction
of the Special Judge in this case.
There is no merit in the contention that s. 540 of the Code
of Criminal Procedure governs either ss. 337 or 338 of the Code
or s. 8(2) of the Criminal Law Amendment Act. That section only B
confers powers on the Court to summon material witnesses at any
stage of any inquiry oc trial or other proceeding under the Code.
That power is not to be confused with the power to tender pardon
to an accused. The considerations for summoning witnesses as
court witnesses are somewhat different from the considerations on
which a tender of pardon should be made. It is no doubt necessary
to bear in mind the interests of justice in either case but there the C
common factor ceases and other considerations arise. It is not,
therefore, possible to read s. 540 with ss. 337 and 338 of the Code
or with s. 8(2) of the Criminal Law Amendment Act.
The next question is whether the Special Judge acted with due
propriety in his jurisdiction. Here the interests of the accused are D
just as important as those of the prosecution. No procedure or
action can be in the interest of justice if it is prejudicial to an
accused. There are also matters of public policy to consider Before
the Special Judge acts to tender pardon, he must. of course, know
the nature of the evidence the person seeking conditional pardon
is likely to give, the nature of his complicity and the degree of his E
culpability in relation to the offence and in relation to the co-accused. What is meant by public policy is iJlustrated by a case
from Dublin Commission Court (Reg v. Robert Dunne, 5 Cox Cr.
cases 507) in which Torrens, J. on behalf of himself and Perrin, J.
observed as follows : -
"From what I can see of this case, this witness Bryan,
who has been admitted as an approver by the Crown is
much the more criminaJ of the two on his own showing............ I regret that this witness, Bryan, has been
admitted as evidence for the Crown and thus escaped
being placed upon his trial. It is the duty of magistrates
to be very cautious as to whom they admit to give
evidence as approvers, and they should carefully inquire
to what extent the approver is mixed up with the transaction, and if he be am accomplice. into the extent of
his guilt.. .......... ".
F
G
In this case the Special Judge made no effort to find out what
Jagasia had to disclose.
The English law and practice is (a) to H
omit the proposed approver from the indictment, or (b) to take
his plea of guilty on arraignment, or (c) to offer no evidence and
pemfa his acquittal, or (d) to enter a no/le proseqlli. In our
criminal jurisdiction there is a tender of a pardon on condition
of full disclosure. Section 8(2) of the Criminal Law Amendment
SUPREM~ COUHT REPORTS
(!9G8] l 8.C.R,
A Act is enabling. Without recourse to it an accused person cannot
be examined as a witness in the same case against another accused. To determine whether the accused's testimony as an approver
is likely to advance the interest of justice. the Special Judge must
· have material before him to show what the nature of that
testimony will be. Ordinarily it is for th e prosecution to ask that
a particular accused, out of several may be tendered pardon. But
B even where the accused directly applies to the Special Judge, he
msut first refer the reqquest to the prosecuting agency. It is not
for the Special Judge to enter the ring as a veritable director of
prosecution. The power which the Special Judge exercises is not
on his own behalf but on behalf of the prosecuting agency and
must;. therefore, be exercised only when the prossecuting joins
C tendered pardon because it does not need approver's testiminy.
It may also not
like the tender of pardon to the
the crime or the worst offender. The proper course for the Special
Judge is to ask for a statement from the prosecution on the request
of the prisoner. If the prosecution thinks that the tender of pardon
will be in the interests of a successful prosecution of the other
D offenders whose conviction is not easy without the approver's
testimony, it will indubitably agree to the tendering of pardon.
The Special Judge (or the Magistrate) must not take on himself
the task of determining the propriety of tendering pardon in the
circumstances of the case. The learned Special Judge did not bear
these considerations in mind and took on himself something from
E which he should have kept aloof. All that he should have done
was to have asked for the opinion of the public prosecutor on the
proposal. But since the Public Prosecutor,. when appearing in the
High Court, stated that the prosecution also considered favourably
the tender of pardon to Jagasia we say no more than to caution •
Magistrates and Judges in the matter of tender of pardon suo motu ·
F at the request of the accused. This practice is to be avoided. Since
the prosecution in this case also wants that the tender of pardon
be made it is obvious that the appeal must fail. Tt will accordingly
be dismissed.
V.P.S.
Appeal dismissed.
)