# STATE OF U. P v. KAILASH NATH AGARWAL & ORS

- **Citation:** [1973] 3 S.C.R. 728
- **Court:** Supreme Court of India
- **Decided:** 1973
- **Case number:** Criminal Appeal No. 193 of 1969
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-u-p-v-kailash-nath-agarwal-ors-5928
- **Pages:** 14

## Headnote

728
STATE OF U. P.
v.
KAILASH NATH AGARWAL & ORS.
March 16. 1973
[A. ALAGIIUSWAMI, I. D. DUA AND C. A, V AIDIALINOAM, JI,]
Cr. P.C.-s. 331(1)-Whether a District Mqlstratt is competent to
grant pardon under the section when a Firs~ Class
Magistrate, .before
whom the enquiry proceedings wert pending, had rejected such a request.
Respondent entered into a conspiracy as a result of which they defrauded the railway administration during the year 1958-59, very large
amounts. A char~heet was filed against them under s. 120(B), 420,
467, 468 and 471 I.P.C.
The enquiry proceedings were started in the court of the 1st Class
Magistrate, Kanpur.
The 2nd and 3rd respondents gave confessional
statements and both of them made applicatiom& under s. 337 of Cr.P.C ..
praying for grant of pardon. The Magistrate passed an order declining
to grant pardon and rejected the applications. However, on behalf of
the State, an application was lied before the District Ma,istrate, Kanpur,
to grant pardon to ·reapondcnt 2 and 3 on c:ondition of their making a
full disclosure of the whole caae. In the application, reference was made
to the 'fact that a requeat made by tbele two acctJied for arant of pll'don
was rejected by the Magistrate enquiring into the oft'ence.
The applica·
tion was oppoeed by re~pclf3deata No, 1 IDd 4 te 6 on the JfOUDd that the
District · MQistrate had no power to grant pardon when the enqulrina
Magistrate liad declined a limilar requat. The Diatrict Magiatrate r&o
jected this contention and lfl!lted pardon to the 2nd: rapondent on con·
dition of hiJ making a full dilcloeure of the whole case.
The first responlleqt filed a criminal revi&ioo before
the Diatrlet
Judge K~J,npur, challenging this order. Ultimately it was heard bv a Civil
and Sessions Judge, Kanpur.· It wu held that the District ·Magistrate
was not competent to grant pardon to respondent No. 2. The Civil and
Sessions Judge 'further held that the order of the Diatrict Magistrate was
wholly without jurisdiction and therefore, referred the. matter to the Hiah
Court with a recommendation that the order of the District Magistrate
granting pardon to the second resl.'ondent should be quashed. The High
Court held that the District MagiStrate ~d no power to grant pardon
after it had been once refused by the 1st Class Magistrate enquiring into
the matter and that the order of the Diatrict Magistrate was revisable by
the Civil and Sessions Judge and quashed the order of the District Magistrate, Kanpur. The question was whether the District Magistrate
is
competent under s. 337(1) of the Cr.P.C. tc, grant pardon to an accused
when a 1st Class Magistrate before whom the enquiry proceedings had
been pending had rejected such a request.
Partly allowing the appeal,
HELD: (i) A perusal of s. 337(1) shows that the District Magistrate,
a Presidency Magistrate, a Sub-Divisional Magistrate or any Magistrate
of the First Class may tender pardon in the clrc;umstances mentioned
therein at any stage of the investigation or enquiry into or trial of the
offence.
But under the proviso if the offence is under enquiry or trial,
only the District Magistrate and only the Magistrate making the enquiry
or holding the trial, can exercise the power. Similarly where the offence
A
B
c
D
G
H
··*·
A
B
c
D
··~
G
H
U.P. STATB v. K. N. AGARWAL (Vaidialingam, /.)
729
is under investigation, it is only a Magistrate having jurisdiction in
the
place where the offence might be enquired into or tried that can exercise
the power. Even such a Magistrate can exercise that power only if the
sanction of the District Magistrate has been obtained.
While there is
a restriction on the powers of the Magistrate of the First Class,
no
such restriction is to be found in the proviso on the powers of the District
Magistrate either at the stage of investigation or enquiry into or trial of
the offence. Emphasis is to be laid on the fact that the proviso to
s. 337 which contemplates concurrent jurisdiction in the District Magis·
trate and

## Text

728
STATE OF U. P.
v.
KAILASH NATH AGARWAL & ORS.
March 16. 1973
[A. ALAGIIUSWAMI, I. D. DUA AND C. A, V AIDIALINOAM, JI,]
Cr. P.C.-s. 331(1)-Whether a District Mqlstratt is competent to
grant pardon under the section when a Firs~ Class
Magistrate, .before
whom the enquiry proceedings wert pending, had rejected such a request.
Respondent entered into a conspiracy as a result of which they defrauded the railway administration during the year 1958-59, very large
amounts. A char~heet was filed against them under s. 120(B), 420,
467, 468 and 471 I.P.C.
The enquiry proceedings were started in the court of the 1st Class
Magistrate, Kanpur.
The 2nd and 3rd respondents gave confessional
statements and both of them made applicatiom& under s. 337 of Cr.P.C ..
praying for grant of pardon. The Magistrate passed an order declining
to grant pardon and rejected the applications. However, on behalf of
the State, an application was lied before the District Ma,istrate, Kanpur,
to grant pardon to ·reapondcnt 2 and 3 on c:ondition of their making a
full disclosure of the whole caae. In the application, reference was made
to the 'fact that a requeat made by tbele two acctJied for arant of pll'don
was rejected by the Magistrate enquiring into the oft'ence.
The applica·
tion was oppoeed by re~pclf3deata No, 1 IDd 4 te 6 on the JfOUDd that the
District · MQistrate had no power to grant pardon when the enqulrina
Magistrate liad declined a limilar requat. The Diatrict Magiatrate r&o
jected this contention and lfl!lted pardon to the 2nd: rapondent on con·
dition of hiJ making a full dilcloeure of the whole case.
The first responlleqt filed a criminal revi&ioo before
the Diatrlet
Judge K~J,npur, challenging this order. Ultimately it was heard bv a Civil
and Sessions Judge, Kanpur.· It wu held that the District ·Magistrate
was not competent to grant pardon to respondent No. 2. The Civil and
Sessions Judge 'further held that the order of the Diatrict Magistrate was
wholly without jurisdiction and therefore, referred the. matter to the Hiah
Court with a recommendation that the order of the District Magistrate
granting pardon to the second resl.'ondent should be quashed. The High
Court held that the District MagiStrate ~d no power to grant pardon
after it had been once refused by the 1st Class Magistrate enquiring into
the matter and that the order of the Diatrict Magistrate was revisable by
the Civil and Sessions Judge and quashed the order of the District Magistrate, Kanpur. The question was whether the District Magistrate
is
competent under s. 337(1) of the Cr.P.C. tc, grant pardon to an accused
when a 1st Class Magistrate before whom the enquiry proceedings had
been pending had rejected such a request.
Partly allowing the appeal,
HELD: (i) A perusal of s. 337(1) shows that the District Magistrate,
a Presidency Magistrate, a Sub-Divisional Magistrate or any Magistrate
of the First Class may tender pardon in the clrc;umstances mentioned
therein at any stage of the investigation or enquiry into or trial of the
offence.
But under the proviso if the offence is under enquiry or trial,
only the District Magistrate and only the Magistrate making the enquiry
or holding the trial, can exercise the power. Similarly where the offence
A
B
c
D
G
H
··*·
A
B
c
D
··~
G
H
U.P. STATB v. K. N. AGARWAL (Vaidialingam, /.)
729
is under investigation, it is only a Magistrate having jurisdiction in
the
place where the offence might be enquired into or tried that can exercise
the power. Even such a Magistrate can exercise that power only if the
sanction of the District Magistrate has been obtained.
While there is
a restriction on the powers of the Magistrate of the First Class,
no
such restriction is to be found in the proviso on the powers of the District
Magistrate either at the stage of investigation or enquiry into or trial of
the offence. Emphasis is to be laid on the fact that the proviso to
s. 337 which contemplates concurrent jurisdiction in the District Magis·
trate and in the Magistrate making an enquiry or holding the trial
to
tender pardons. The mere fact that a Magistrate of the first class enquiring into an offence has declined to grant pardon, as in the present case,
does not take away the power or jurisdiction of the District Magistrate to
entert.ain a fl.!fther apP.licati?n for ~t of pardo!l·
However, judicial
propnety reqwres that 1f a higher authonty had dechned to tender pardon,
a lower authority should not grant pardon except on fresh facts.
The
above prinojple will apply even to proceedings under s. 338. [735B]
(ii) The question whether
the State
should have filed a revision
against the order of refusal of the Magistrate, does not require an answer,
because of the fact that the District Magistrate has got concurrent powers
and that pe can be approached under s. 337 even after the Magistrate
enquiring into the offence had declined to grant pardon.
[739D]
(iii) An order granting pardon is open to revision but whether the
court whose powers are invoked for that purpose will interfere or not is
a matter depending upon the circumstances in each case. Therefore, the
first respondent's revision before the Sessions Court, was competent and a
revision petition lies before this Court,
[740A]
(iv) A pardon granted bona fide is fully protected by the provisions
df s. 529 of the Cr.P.C., but in view of the District Magistrate's power to
grant pardon, it is not necessary that the State should rely on s. 529
Cleuse (g) of the Cr. P. C. [741A]
Kanta Prasad v. Delhi Administration [1958] S.C.R. 1218, A.!., Peiris
v. State of Madras [1954] Cr.L.J. 1638, State of Andhra Pradesh v. Che~
malapati Ganeswara & Anr. [1964] 3 S.C.R. · 297 and M. M. Kochar v.
The State A.I.R. 1969, De_lhi 21, ref~ed to.
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
193 of 1969.
Appeal by certificate from the judgment and order dated Sep4
tember 11, 1968 of the Allahabad High Court in Criminal Refer·
ence No. 284 of 1967.
0. P. Rana, for lfhe appellant.
B. P. Maheshwari and Saresh Sethi, for respondents Nos. 5
and 6.
The Judgment of the Court was delivered by
VAIDIALINGAM, J. The question that arises for consideration
in this appeal by the State of U.P. on certificate is-
"whether a District Magistrate is competent under
section 3 3 7 ( 1) of the Code of Criminal Procedure to
730
SUPREME COURT REPORTS
[1973] 3 s.c.B..
grant pardon to an accused person when a First Class
A
Magistrate, before whom the inquiry proceedings had
been pending, had rejected such a request".
Before we proceed to state the facts, it has to be mentioned
that it has been brought to our no~ce that Sarwan Lal, the 4th
respondent, died after the appeal was filed in this Court by the
State. In consequence the appeal has abated against him. How4
ever, in the course of the judgment, we will have to refer to him
also when we state the case of the prosecution.
The prosecution case against the accused was as follows :-
The first respondent, Kailash N atli, along with Sarwan Lal,
Moti Chandra and Smt. Shanti Devi, respondents 4 to 6 respectively, were the Directors of M/s M. K. Brothers (P) Ltd., Kanpur
and were doing business in cotton in Kanpur.
In the course of
their business, they used to purchase cotton from out stations and
sell them to the textile mills at Kanpur. The second respondent,
Kesardeo Budhia, was an employee of M/s M. K. Brothers (P)
Ltd. and used to look after the work of taking delivery of cotton
bales from the Kanpur railway station. The third respondent,
Devi Prasad Agarwal, was a representative of J. K. Cotton Mills
Kanpur.
In 1958 the financial position of M/s M. K. Brothers
(P) Ltd. became very precarious and in consequence they com·
mitted considerable delay in clearing the consignments of cotton
from the station premises and this resulted in their being liable for
heavy arrears of demurrage and wharfage.
As the textile industry itself was facing a cri~is in 1958, the
Government, with a view to give some assistance, granted several
concessions. One such was that the consignees, who had their
own railway sidings, were granted remission in respect of demur~
rage and wharfage payable to the railway authorities.
This enabled the consignees to take delivery of goods according to their
convenience. In the said year, as M/s M. K. Brothers (P) Ltd.
had received a large number of consignments of cotton bales, they
evolved a scheme to avail themselves of the benefit granted to the
textile industry by the Government.
For this purpose, they hatched a plan by which they misrepresented that the consignments
of cotton bales received at Kanpur railway station, though in their
name. actually belonged to M/s J. K. Cotton Mills Kanpur. The
second respondent, an employee of M/ s M. K. Brothers, the third
respondent, an employee of J. K. Cotton Mills and respondents 1
a
c
D
E
F
G
and 4 to 6, the Directors of M/s M. K. Brothers, entered into a
conspiracy in furtherance of their object and as a result thereof
they submitted false applications to the railway authorities on
H
behalf of J. K. Cotton Mills for remission on the representation
that the goods had been consigned to J. K. Cotton Mills. In
..
(.
f
U.P. sTATE V. K. N. AGARWAL (Vaidialingam, J.)
731
urtherance of the obj~ct of this. conspiracy, they also made false
!ndorsements on the ~atlway recetpts for transfer of the bales. As
a result _of the conspuacy, they defrauded the railway administration dunng the year 1958-5? of very large amounts
A~cordingl
a char"e-sheet was filed agamst respondents 1 to L. un~.ocr section;
lZO(B), 420,467,468 and 471 of the Indian Pena,l Code.
B
The inquiry proceedings were started in the Court of the First
Class Magistrate, Kanpur, as the case was triable as a Sessions
case. On June 30, 196_2,
the second respondent, Kesardeo
Budhia, made <1: confess10nal statement. Similarly, Devi Prasad
Agarwal, the tlurd respondent, gave a confessional statement on
July 12, 1963. Both responde_nts 2 and 3 made applications on
c December 17, 1964, under section 33 7 of the Criminal Procedure
Court before !he Fir~t C_lass Magistrate praying for grant of pardon. The srud applications were supported by the prosecution,
but the other accused opposed the grant of pardon. The Magistrate by' his order dated September 27, 1965, declined to grant
pardon and rejected the applications of both the accused. How-
.D ever, on behalf of the State its Special counsel filed an application
on April 15, 1966, before the District Magistrate, Kanpur, to
grant pardon to respondents 2 and 3 on condition of their making
a full and true disclosure of the whole of the circumstances. In
this application, it was stated that the First Class Magistrate,
Kanpur, was inquiring into the matter and was recording evidence
E of witnesses for the purpose of bdng satisfied that ~ pri~ facie
case had been established.
It was stressed that the dtrect evtdence
of conspiracy would be furnished by respondents 2 and 3 if they
are granted pardon and examined as witnesses. Reference 'W-as
also made to the effect that a request made by thos~ .acc~ed for
£rant of pardon was rejected by the Magistrate enqumng mto the
p offences.
This application was opposed by respondents 1 and 4
to 6 on the ground that the District Magistrate has no po:ver to
~t pardon when once the enquiring Magistrate h~ decline~ a
Mrrular request.
The District Magistrate rejected thiS ~on~enllOn
and_ held that he had jurisdiction to conside~ _the app~catton ~~
mcnts, notwithstanding the fact that the cnqmnng Magtstrate h.
C declined to grant pardon. On merits, the Magistrate held tha~ m
the circumstances it is enouoh if the second respondh~nt, dKesdaratecdo
Budh'
0
rd' "IY by ts or er
J
la alonco is tendered pardon. Acco
1~.:. :,37 to this accused
. une I, 1966, he granted pardon under sectton
disclosure of
~~one on condition of his makin_g ~ fu~l k~nd )~~~~rrelating to the
c Whole of the circumstances wuhm hiS now
=
Offences
lf
. Th .
.
. . 1 Revision No. 85 of 1966
b r
e first respondent filed Cnnunah 11
'ng the order of the
~or~ the Distnct Judge, Kanpu~, c ~ c~~~lt with by the Civil
stnct Magistrate which was ulttmate Y
"Z· ...
732
SUPREME COURT REPORTS
[1973] 3 S.C.R.
and Sessions Judge, Kanpur.
The jurisdiction of the District
Magistrate to grant pardon, after the First Class Magistrate having
refused, was again the subject of debate before the Sessions court.
The State and the second respondent contended before the Civil
& Sessions Judge that the Revision was not competent.
The Civil
and Sessions Judge rejected the contention of the State that no
revision lies.
It upheld the plea of the first respondent that the
District Magistrate was not competent to grant pardon to Kesardeo
Budhia.
The view of the Civil and Sessions Judge is that if the
State was dis-satisfied with the order dated September 27, 1965,
passed by the First Class Magistrate, that order should have been
challenged in revision before the District Judge or the District
Magistrate.
Not having done so, it cannot invoke the jurisdiction
of the District Magistrate under section 337.
The Civil and
Sessions Judge has further held that the order of the District
Magistrate was wholly without jurisdiction and in consequence by
his order dated June 16, 1967, referred the matter to the High
Court with a recommendation that the order dated_ June 1, 1966,
of the District Magistrate granting pardon to the second respon~
dent should be quashed.
B
c
D
This reference of the Civil and Sessions Judge before the High
Court was Criminal Reference No. 284 of 1967. The High Court
by its judgment and order dated September 11, 1968, has held
that the District Magistrate has no power to grant pardon after
it has been once refused by the First Class Magistrate enquiring
1
into the matter and that the order of the District Magistrate was
revisable by the Civil and Ses'Sions Judge.
In this view, the High
Court accepted the Reference and quashed the order dated June
1, 1966, of the District Magistrate, Kanpur.
Mr. Rana, learned counsel for the State, has raised three
eontentions :
(1) The power under section 337 of the Criminal
Procedure Code exercisable by the various Magistrates mentioned therein is concurrent and the
District Magistrate in the circumstances of this
case was competent to grant pardon to respon·
dent No.2.
( 2) The Revision filed by the first respondent before
the Civil and Sessions Judge against the order of
the District Magistrate was incompetent.
( 3) In any event, the grant of pardon by the District
Magistrate is only an irregularity, which is cured
by clause (g) of section 529 of the Criminal
Procedure Code; and as such the High Court was
in error in interfering with the said order.
F
G·
H
.8
,!)
.F
H
U,P,· STATE v. K, N. AGARWAL (Vaidialingan,., J.)
733
Mr. B .. P. Maheshwari, learned counsel appearing for respondents 5 and 6, has supported the order of the High Court. According to him, the scheme of section 3 3 7 clearly shows that the
question of granting or refusing pardon has to be dealt with in the
circumstance and by the officers referred to therein.
When once
that jurisdiction has been invoked before one officer, it cannot be
reopened before another officer.
The counsel contended that it
may be that if fresh facts have come to light later and are placed
before the court, it may have jurisdiction to reconsider an order
passed at the early stage of proceedings.
In this case, the State
had not placed any material before the District Magistrate that
was not already before the First Class Magistrate.
That being
so, the District Magistrate had no jurisdiction to consider on the
same facts a second request made for the same purpose.
Mr.
Maheshwan further pointed out that if the State was aggrieved by
the order of the Magistrate dated September 27, 1965,. it should
have challenged the same in revision before the Sessions Judge.
In view of these circumstances, he pointed out that the High Court
had rightly held that the order of the District Magistrate was
without jurisdiction.
It is now necessary to refer to the material provisions of the
Criminal Procedure Code. Though section 337 is the relevant
section, nevertheless, it is necessary to refer to section 338 also.
These two sections occurring in chapter XXIV dealing with
"general pt;avisions as to i1,1quiries and trials" are as follows :
Tender of pardon to accomplice.
"3 3 7 (1 ) . In the case of any 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 any of the following sections of the Indian Penal Code, namely, sections
161, 165, 165A, 216A, 369, 401, 435 and 477A, the
District Magistrate, a Presidency Magistrate, a Subdivisional Magistrate or any Magistrate of the first class
may, at any stage of the investigation or enquiry into,
or the trial of the offence, with a 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 of the circumstances
within his knowledge relative to the offence and to
every other person concerned, whether as principal or
abettor, i'! the commission thereof:
Provided that, where the offence is under inquiry or
trial, no Magistrate of the first class Olther than the District Magistrate shall exercise the power hereby conferred
734
SUPREME COURT REPORTS
[1973] 3 S.C.R.
~ess he is the Magistrate making the inquiry or hold·
mg the trial, and, where the offence is under investigation, no such Magistrate shall exercise the said power
unless he is a Magistrate having jurisdiction in a place
where the offence might be inqUired into or tried and
the sanction of the District Magistrate has been obtained
to the exercise thereof."
( lA) "Every Magistrate who tenders a pardon under
sub-section ( 1 ) shall record his reasons for so doing,
and shall, on application made by the accused, furnish
him with a copy of such record:.
B
Provided that the accused shall pay for the same
C
unless the Magistrate for some special reason thinks fit
to furnish it free of cost."
Power to direct tender of pardon.
"338. 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 privy to, ll:fiY such offence,
tender, or order the committing Magistrate or the District Magistrate to tender, a ·pardon on the same condition to such person."
D
Section 435 ( 1) gives power to the High Court, the Sessions
Judge and to the other authorities mentioned therein to call for
records of inferior courts for the purposes mentioned therein.
Sub-section 4 provides that if an application under section 435
p
has been made either to the Sessions Judge or the District Magistrate, no further application shall be. entertained by the other of
them.
Section 529 occurring in Chapter XLV under the heading
"Of irregular proceedings" deals with irregularities which do not
vitiate proceedings.
The material part of this section relevant for
the present purpose is as follows :-
Irregularities which do not vitiate proceedings.
"529. If any Magistrate not empowered by law to
do any of the following things, namely :-
*
*
*
*
•
G
(g) to tender a pardon under section 337 or section
H
338:
*
•
"'
•
•
A
B
c
D
F
G
H
U.P. STATE v. K. N. AGARWAL (Vaidialingam, /.)
735
erroneously in good faith does that thing, his proceedings
shall not be set aside merely on the ground of his not
being so empoWered."
A perusal of section 337 ( 1) shows that the District Magistrate,
a Presidency Magistrate, a Sub-divisional Magistrate or any Magistrate of the First Class may tender pardon in the circumstances
mentioned therein at any stage of the investigation or inquiry into
or trial of the offence. But under the proviso, if the offence ·is
under inquiry or trial, the District Magistrate and only the Magistrate making the inquiry or holding the trial can exercise the
power. Similarly, where the offence is under investigation, it is
only a Magistrate having jurisdiction in a place where the offence
might be enquired into or tried. can exercise the power.
Even
such a Magistrate can exercise that power only if the sanction of
the District Magistrate has been. obtained. While there is rr restriction on the powers of the Magistrate of the First Class, no such
restriction is to be found in the proviso on the powers of the District Magistrate either at the stage of investigation or inquiry into
or trial ofthe offence. Sub-section 1 (A) makes it obligatory on
the Magistrate tendering pardon to record his reasons for so doing
and also of furnishing the accused 'with a copy of his order. No
doubt, under the proviso, the accused has to pay for the same
unless the Magistrate thinks fit, for some special reasons, to furnish the order free of cost.
Section 338 deals with the grant of pardon after the stage of
commitment has been reached but before judgment is passed. It·
gives full power to the court, to which commitment is made, to
tender pardon or order the Committing Magistrate or the District
Magistrate to tender pardon on the same conditions. The question arose in Kanta Prashad v. Delhi Administration(~), whether
the District Magistrate had power to tender a pardon under
section 337 in lases where the offence was triable exclusively by
the court of the Special Judge. Having regard to the provisions
of the Criminal Law (Amendment) Act, 1952 and the scheme of
section 3 3 7 of the Criminal Procedure Code, this Court held that
as ~e court of the Special J ridge was in law a court of session,
the District Magistrate had power to grant pardon.
The contention that under such circumstances the proper authority to grant
pardon was the Special Judge was rejected, as the position of the
Special Judge was similar to that of a Judge of a court of Session.
It was observed :
"The proviso to ~tion 33 7 of the Code of Criminal
Procedure contemplates concurrent jurisdiction in the
District Magistrate and the Magistrate making
an
(I) [t 9SS] S.C.R.. 1218.
73la
SUPREME COURT REPORTS
[1973] 3 s.c.R.
jnquiry or holding the trail to tender a pardon. According to the provisions of s. 338 of the Code, even after
commitment but before judgment is passed, the Court
to which the commitment is made may tender a pardon
or order the committing Magistrate or the District Magistrate to tender a pardon. It would seem, therefore, that
the District Magistrate is empowered to tender a pardon
even after a commitment if the Court so directs. Under
s. 8(2) of the Criminal Law (Amendment) Act, 1952,
the Special Judge has also been granted power to tender
pardon.
The conferment of this power on the Special
Judge in no way deprives the District Magistrate of his
power to grant a pardon under s. 337 of the Code".
It will be noted from this decision that emphasis is laid on the
fact that the proviso to section 337 contemplates concurrent
jurisdiction in the District MagiBtrate and in the Magistrate
making an inquiry or holding the trial to tender pardon. It is also
emphasised that the conferment of the power to grant pardon on
the Special Judge does not deprive the District Magistrate of his
power to grant pardon under section 337. In A. /. Peiris v.
State of Madras(!), the question arose before this Court whether
after commitment had already been made, the District Magistrate
has power to grant pardon. From the facts mentioned in the judgment it is seen that on July 24, 1951, the police submitted the
charge-sheet against the accused and one Albert. Albert, however,
could not be traced and the other accused were committed to the
Sessions on August 4, 1952. Albert was arrested on July 28,
1952, and his confession was recorded by the Magistrate after
complying with all the necessary formalities required by law. On
August 28, 1952, he was granted pardon by the District Magistrate,
South Kanara. The evidence of Albert was relied on for convicting the other accused.
This Court rejected the contention that
after commitmell't the only court having power to tender pardon
was the court of Sessions Judge an.d not the District Magistrate.
It was observed :-
"By section 338, Criminal Procedure Code, power
is no doubt given after commitment is made to tender
pardon, before judgment is passed, to any person supposed to have been directly or indirectly concerned with
any offence or order the Committing Magistrate or the
District Magistrate to tender the pardon. The section
vests the court to which commitment is made, with power
to tender pardon or order the Committing Magistrate or
the District Magistrate to tender pardon during the trial
of the case but it does not take away the power conler-
(l) 1954 Cr. L.J. 1638.
A
B
c
D
E
r
G
H
A
B
c
D
E
G
U.P. STATE v, K, N. AGARWAL (Vaidialingam, /.)
131
red under the proviso to section 3 3 7 (l) of the Criminal
Procedure Code .... "
The proviso contains an additional provision which
empowers the Distriot Magistrate to tender pardon
where the offences are under inquiry or trial. The pre*
sent case is covered by the proviso to section 337 and
not by section 338 of the Criminal Procedure Code. We
hold, therefore, that the tender of pardon 1zy the District Magistrate on August 28, 1952, was valid".
In State of Andhra Pradesh v. Cheemalapati Ganeswara Rao-
& Anr. C> one of the questions that came up for consideration was.
whether a pardon granted under section 337(1) by the Additional
District Magistrate in a case, where an inquiry was pending before·
the District Magistrate, was illegal. It was contended that under
section 337 only the powers of a District Magistrate, namely, the·
powers under entry 7(a) in Part V of Schedule ill of the Code of
Criminal Procedure, as distinguished from the power under theproviso to the said section, can be conferred upon an Additional
District Magistrate.
This Court, having regard to the order of
Madras Government No. 3106 dated September 9, 1949, and
entry 7(a) in Part V of Schedule III, rejected this contention. It
is the view of this Court that. :
"The power conferred by sub-se~tion (1) of s. 337
on the different clauses of Magistrates is of the same
character. The power to grant pardon in a case pending
before another Magistrate is no doubt conferred by the
proviso only on the District Magistrate. But entry 7(a)
in Part V of Sch. ffi.when it refers to the power of a
District Magistrate under s. 337 (L) does not exclude
the power under the proviso".
The decision referred to above clearly establish that the powers
conferred on the District Magistrate and the other Magistrates
under section 3 3 7 are concurrent and that a District Magistrate,
even after commitment, has power to tender pardon. The proviso
to section 337 ( 1) makes it clear that the District Magistrate, in
addition to the Magistrates referred to fuerein, has power to tender·
pardon during inquiry into or trial of the offence.
Though the
above decisions had no occasion to consider whether the District
Magistrate has power to tender pardon, when the Magistrate en~
quiring into the offence has once refused, we are not able to find·
any such restriction placed upon the power of the District Magis~
H
trate by the wording of the section itself. As the power confet:re<J·
by sub-section 1 of section 337 on the different classes of Magis-
(1) [1964J 3 S.C.R. 297.
138
SUPREME COURT REPORTS
[1973] 3 s.c.R.
trate is concurent and is oi. the sam~ character, it follows that the
~wer to t7nder pardon can be exercised by everyone of the autho4
nue:s m~ntloned therein subject to the limitation specified in the
sectl?~ Its7lf. The mere fact that a Magistrate of the First Class
enqlllnng mto the offence has declined to grant pardon, as in the
case '?ef?re us, ~oes not take away the power or jurisdiction of
the Distnct Magistrate to entertain a further application for grant
~f pardon.
Thoug~ th~ District Magistrate has got power to consider a further apphcation, nevertheless, it is needless to state that
he will have due regard to the views expressed . by the Magistrate
for refusing to grant pardon. We must, however, state that judicial
propriety requires that if a higher authority had declined to tender
pardon, a lower authority should not grant pardon except on fresh
facts which were not and could not have been before the higher
authority when it declined to grant pardon. Even if pardon has
been refused on one occasion, a further request may be made
before the same Magistrate or the District Magistrate. But such
a further request can be entertained and considered only if fresh
·or additional facts are placed biY the party concerned.
The above principles will apply even to proceedings under
section 338. Even after commitment, a District Magistrate will
have power to grant pardon. But if the court ()f Session had
declined to grant pardon, the District Magistrate will not on the
same facts ell'tertain a similar application for grant of pardon. It
·is necessary to bear in mind the principles stated above so that the
authorities under sections 337 and 338 can exercise jurisdiction
'in harmony in order to further the interest of justice and avoid
conflicting orders being passed.
The conlezmont of concurrent powers is also to be seen in
section 498. Under sub-section 1, the IDgh Court or court of
Session has got power to direct· that any person be admitted to
bail or to reduce the bail required by a police offic~t or a Magistrate.
Even though the Court of Session may have refused a
request in this behalf for grant of bail, the High Court can be
approached for a similar relief. Under sub-seotion 2, again power
has been given to the High Court or Court of Session to order the
re-arrest Of a person admitted to bail under sub-section 1.
A
B
c
D
E
F
G
When the legislature intended that two authorities should not
exercise jurisdiction on an identical matter, it has used appropriate
language to that effect. For instance, under section 436(1), the
Sessions Judge and the District Magistrate, in addition to the High
Court and Sub-divisional Magistrate, have been empowered to
can for and examine the records oi any proceedings before any
inferior criminal court. Though it may appear from sub-section
1 that a District Magistrate can be moved even after the similar
relief has been refused by the SessionS Judge or vice ver9tl, the
H
U.P. STATE V. K. N, AGARWAL (Vaidia/ingam, /.)
739
..A
position is made clear by sub-section 4.
That sub*section pnr
vides that if either the Sessions Judge or the District Magistrate
has been moved, no further application shall be entertained by the
other of them.
Though under sub-section 1 both of them have
concurrent power, nevertheless, s.ub-section 4 clearly
places a
restriction on their powers by stating that if one ot them had been
B
moved, the other cannot entertain an application for the same
purpose.
In view of the decisions of this Court referred to above, it is
not necessary for us to refer to the decisions of the High Court
taking one view or the other. From what is stated above, it follows
that the view of the High Court that when once the Magistrate
C
enquiring into the offence had refused to grant pardon, the District Magistrate had no jurisdiction to entertain an application ior
the same purpose, is erroneous ..
The further question is whether the State should have filed a
revision against the order of the Magistrate dated September 27,
1965, refusing to grant pardon instead of approaching the District
D
Magistrate for the same
purpose. This raises the question
whether an order reftising to grant pardon is revisable ? The High
Court has taken the view that the said order is revisable and that
the State, if it was aggrieved, sh9Uld have filed a revision before
the Sess!ons Judge.
We have already referred to . the fact that
the first respondent had filed a revision before the Sessions Court
E
against the order oi the District Magistrate June 1, 1966. This
revision has been held 1tr the High Court to be a proper one. As
we have held that the District Magistrate has got concurrent
powers and that he can be approached under section 337 even
after the Magistrate enquiring into the offence has declined to grant
pardon, the question wh~er the State should have filed a revision
F
against the order of the Magistrate becomes really academic. On
the view expressed by us, the State was justified in approaching
the District Magistrate even after the Magistrate had refused to
grant pardon .
. However, the question regardin2 the revisability of an order
granting pardon arises regarding the competency of the revision
G
filed by the first respondent before the Sessions Court challenl!ing
the order of the District Magistrate dated June l, 1966. Section
435, which deals with the power to call for records of inferior
courts, takes in the High Court, Sessions Judge, District Ma~strate
and any S'!lb-divisional Magistrate emoowered bv the State G()vemment in that behalf. The power is given to call for and examine
the records of any proceedings before anv inferior criminal court
H
for the purpose of satisfying itself as to the correctness. 1egality
or propriety of "any finding, sentence or order recorded or nassed,
and as to the regularity of any proceedings of such inferior Court
740
SUPREME COURT REPORTS
[1973] 3 S.C.R.
'' In our opinion, an order granting pardon under section
A.
337 or 338 is certainly an order r~orded or passed and the revisional court has got jurisdiction to consider the
correctness,
legality or propriety ot such an order. At any r;lte, tender of a
pardon is certainly a proceeding of a criminal court. The revising authority can call for the records to satisfy itself as to the
regularity of any proceedi~s of an inferior criminal court.
It
B
should also be noted that sub-section 1A of section 337 imposes
an ob~gation on the Magistrate tendering pardon to record his
reasons for so doing. Whether a revisional authority will interfere
with the order of an inferior criminal court tendering pardon, is
altogether a different matter. That does not mean that a revisional
court has no jurisdiction to entertain a revision against an order c
granting pardon.
The decision that has been brought to our notice holding that
section 435 cannot be invoked in the case or an order made either
under section 337 or under section 338 is that of a learned single
Judge of the Delhi High Court in M. M. Kochar v. The State( 1 ) .
The learned Judge bas held that the tender of pardon and its
I}
acceptance by the person concerned is a matter entirely between
the court and the person to whom pardon is tendered and that a
co-accused bas no power to challenge the same, as it is a purely
executive or administrative action and nO't a
judicial decision.
Tendering of pardon, it is further stated, is only an exercise of one
of the many prerogatives of the sovereign. After having held that
E
the High Court's jurisdiction cannot be invoked under section 435,
the learned Judge on merits held that the tender of pardon was legaL
This decision ot the Delhi High Court was challenged before
this Court in Criminal Appeal No. 109 of 1968. In its judgment
dated September 16, 1968, this Court on merits agreed with the
High Court that the tender of pardon was proper. The question
F
of the nature of the power exercised in granting pardon and the
other question whether an order granting pardon was revisable
by a superior court, were, however, left open. We have indicated
earlier that an order granting pardon is open to revision, but
· whether the court whose l10wers are invoked for that purpose will
interfere or not, is a matter depending upon the circumstances of
G
each case. Accordingly we hold that the first respondent's revision
before the Sessions Court was competent and reject the second
contention of Mr. Rana.
Coming to the third con~ention of Mr. Rana, it has been held
by this Court in State of Andhra Pradesh v.
Cheemalapati
Ganeshwara Rao & Anr. (2 ) that "a pardon granted bona fide is
H
(1) A.I.R. 1969 Delhi 21.
(2) [1964] 3 S.C.R. 297.
U.P. STATE v. K. N. AGARWAL (Vaidialingllm, /.)
741
A
fully protected by the provisions of section 529 of the Criminal
Procedure Code". We have already extracted the relevant part
of section 529. On the view expressed by us that the order of
the District Magistrate granting pardon is legal and valid, it is
not necessary for the State to rely on section 529, clause (g) in
this case.
B
In the result the order and judgment of the High Court dated
September 11, 1968, in so far as it holds that the grant of pardon
by the District Magistrate was illegal are set aside and to that
extent the appeal is allowed in part. The order dated June 1,
1966 ol the District Magistrate, Kanpur, will stand restored.
S.C.
Appeal allowed in part.
1S-L761Sup.C .I ./73