ANALYSIS
28. We have carefully considered the rival contentions. For the purpose of easy appreciation, we shall divide the discussion and analysis into three parts, the first dealing with the contention revolving around Section 197 of the Code, the second dealing with the correctness of the procedure adopted while granting pardon under Section 306 of the Code and the third revolving around the merits of the case qua culpability of each of the appellants before us.
PART-I (REVOLVING AROUND SECTION 197 OF THE CODE)
A STUDY OF SANCTION
29. There is no dispute about the fact that A-1 to A-4, being officers of a company coming within the description contained in the Twelfth item of Section 21 of the IPC, were ‘public servants’ within the definition of the said expression under Section 21 of the IPC. A-1 to A-4 were also public servants within the meaning of the expression under Section 2(c)(iii) of the PC Act. Therefore, there is a requirement of previous sanction both under Section 197(1) of the Code and under Section 19(1) of the PC Act, for prosecuting A-1 to A-4 for the offences punishable under the IPC and the PC Act.
30. Until the amendment to the PC Act under the Prevention of Corruption (Amendment) Act, 2018 (Act 16 of 2018), with effect from 26.07.2018, the requirement of a previous sanction under Section 19(1)(a) was confined only to a person “who is employed”. On the contrary, Section 197(1) made the requirement of previous sanction necessary, both in respect of “any person who is” and in respect of “any person who was” employed. By the amendment under Act 16 of 2018, Section 19(1)(a) of the PC Act was suitably amended so that previous sanction became necessary even in respect of a person who “was employed at the time of commission of the offence”.
31. The case on hand arose before the coming into force of the Prevention of Corruption (Amendment) Act, 2018 (Act 16 of 2018). Therefore, no previous sanction under Section 19(1) of the PC Act was necessary insofar as A-1 was concerned, as he had retired by the time a final report was filed. He actually retired on 31.08.1997, after 7 months of registration of the FIR (31.01.1997) and 5 years before the filing of the final report (16.07.2002) and 6 years before the Special Court took cognizance (04.07.2003). But previous sanction under Section 19(1) of the PC Act was required in respect of A-3 and A-4, as they were in service at the time of the Special Court taking cognizance. Therefore, the Agency sought sanction, but the Management of BHEL refused to grant sanction not once but twice, insofar as A-3 and A-4 are concerned.
PRINCIPLES ON WHEN SANCTION NECESSARY?
34. The argument revolving around the necessity for previous sanction under Section 197(1) of the Code, has to be considered keeping in view the above facts. It is true that the refusal to grant sanction for prosecution under the PC Act in respect of A-3 and A-4 may not have a direct bearing upon the prosecution of A-1. But it would certainly provide the context in which the culpability of A-1 for the offences both under the IPC and under the PC Act has to be determined.
35. It is admitted by the respondent-State that no previous sanction under section 197(1) of the Code was sought for prosecuting A-1. The stand of the prosecution is that the previous sanction under Section 197(1) may be necessary only when the offence is allegedly committed “while acting or purporting to act in the discharge of his official duty”. Almost all judicial precedents on Section 197(1) have turned on these words. Therefore, we may now take a quick but brief look at some of the decisions.
ANALYSING FEDERAL COURT JUDGMENT
36. Dr. Hori Ram Singh vs. The Crown [1939 SCC OnLine FC 2] is a decision of the Federal Court, cited with approval by this court in several decisions. It arose out of the decision of the Lahore High Court against the decision of the Sessions Court which acquitted the appellant of the charges under Sections 409 and 477A IPC for want of consent of the Governor. Sir S. Varadachariar, with whose opinion Gwyer C.J., concurred, examined the words, “any act done or purporting to be done in the execution of his duty” appearing in Section 270(1) of the Government of India Act, 1935, which required the consent of the Governor. The Federal Court observed at the outset that this question is substantially one of fact, to be determined with reference to the act complained of and the attendant circumstances. The Federal Court then referred by way of analogy to a number of rulings under Section 197 of the Code and held as follows:-
“The reported decisions on the application of sec. 197 of the Criminal Procedure Code are not by any means uniform. In most of them, the actual conclusion will probably be found to be unexceptionable, in view of the facts of each ease; but, in some, the test has been laid down in terms which it is difficult to accept as exhaustive or correct. Much the same may be said even of decisions pronounced in England, on the language, of similar statutory provisions (see observations in Booth v. Clive . It does not seem to me necessary to review in detail the decisions given under sec. 197 of the Criminal Procedure Code which may roughly be classified as falling into three groups, so far as they attempted to state something in the nature of a test. In one group of cases, it is insisted that there must be something in the nature of the act complained of that attaches it to the official character of the person doing it: cf. In re Sheik Abdul Khadir Saheb ; Kamisetty Raja Rao v. Ramaswamy, AmanatAli v. King-emperor, KingEmperor v. Maung Bo Maung and Gurushidayya Shantivirayya Kulkarni v. King-Emperor. In another group, more stress has been laid on the circumstance that the official character or status of the accused gave him the opportunity to commit the offence. It seems to me that the first is the correct view. In the third group of cases, stress is laid almost exclusively on the fact that it was at a time when the accused was engaged in his official duty that the alleged offence was said to have been committed [see Gangaraju v. Venki , quoting from Mitra’s Commentary on the (criminal Procedure Code). The use of the expression “while acting” etc., in sec. 197 of the Criminal Procedure Code (particularly its introduction by way of amendment in 1923) has been held to lend some support to this view. While I do not wish to ignore the significance of the time factor, it does not seem to me right to make it the test. To take an illustration suggested in the course of the argument, if a medical officer, while on duty in the hospital, is alleged to have committed rape on one of the patients or to have stolen a jewel from the patient’s person, it is difficult to believe that it was the intention of the Legislature that he could not be prosecuted for such offences except with the previous sanction of the Local Government”
37. It is seen from the portion of the decision extracted above that the Federal Court categorised in Dr. Hori Ram Singh (supra), the decisions given under Section 197 of the Code into three groups namely (i) cases where it was held that there must be something in the nature of the act complained of that attaches it to the official character of the person doing it; (ii) cases where more stress has been laid on the circumstance that the official character or status of the accused gave him the opportunity to commit the offence; and (iii) cases where stress is laid almost exclusively on the fact that it was at a time when the accused was engaged in his official duty that the alleged offence was said to have been committed. While preferring the test laid down in the first category of cases, the Federal Court rejected the test given in the third category of cases by providing the illustration of a medical officer committing rape on one of his patients or committing theft of a jewel from the patient’s person.
38. In Matajog Dobey vs. H.C. Bhari [(1955) 2 SCR 925] a Constitution Bench of this Court was concerned with the interpretation to be given to the words, “any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty” in Section 197 of the Code. After referring to the decision in Dr. Hori Ram Singh, the Constitution Bench summed up the result of the discussion, in paragraph 19 by holding: “There must be a reasonable connection between the act and the discharge of official duty; the act must bear such relation to the duty that the accused could lay a reasonable, but not a pretended or fanciful claim, that he did it in the course of the performance of his duty.”
39. In State of Orissa through Kumar Raghvendra Singh vs. Ganesh Chandra Jew [(2004) 8 SCC 40], a two Member Bench of this Court explained that the protection under Section 197 has certain limits and that it is available only when the alleged act is reasonably connected with the discharge of his official duty and is not merely a cloak for doing the objectionable act. The Court also explained that if in doing his official duty, he acted in excess of his duty, but there is a reasonable connection between the act and the performance of the official duty, the excess will not be a sufficient ground to deprive the public servant of the protection.
40. The above decision in State of Orissa (supra) was followed (incidentally by the very same author) in K. Kalimuthu vs. State by DSP [(2005) 4 SCC 512] and Rakesh Kumar Mishra vs. State of Bihar [(2006) 1 SCC 55].
JUDGMENT WHICH DISCUSSED ALL PREVIOUS DECISIONS
41. In Devinder Singh vs. State of Punjab through CBI [(2016) 12 SCC 87 28], this Court took note of almost all the decisions on the point and summarized the principles emerging therefrom, in paragraph 39 as follows:
“39. The principles emerging from the aforesaid decisions are summarised hereunder: 39.1. Protection of sanction is an assurance to an honest and sincere officer to perform his duty honestly and to the best of his ability to further public duty. However, authority cannot be camouflaged to commit crime.
39.2. Once act or omission has been found to have been committed by public servant in discharging his duty it must be given liberal and wide construction so far its official nature is concerned. Public servant is not entitled to indulge in criminal activities. To that extent Section 197 CrPC has to be construed narrowly and in a restricted manner.
39.3. Even in facts of a case when public servant has exceeded in his duty, if there is reasonable connection it will not deprive him of protection under Section 197 CrPC. There cannot be a universal rule to determine whether there is reasonable nexus between the act done and official duty nor is it possible to lay down such rule.
39.4. In case the assault made is intrinsically connected with or related to performance of official duties, sanction would be necessary under Section 197 CrPC, but such relation to duty should not be pretended or fanciful claim. The offence must be directly and reasonably connected with official duty to require sanction. It is no part of official duty to commit offence. In case offence was incomplete without proving, the official act, ordinarily the provisions of Section 197 CrPC would apply. ….”
42. In D. Devaraja vs. Owais Sabeer Hussain [(2020) 7 SCC 69], this Court explained that sanction is required not only for acts done in the discharge of official duty but also required for any act purported to be done in the discharge of official duty and/or act done under colour of or in excess of such duty or authority. This Court also held that to decide whether sanction is necessary, the test is whether the act is totally unconnected with official duty or whether there is a reasonable connection with the official duty.
49. On the basis of the above observation, it was contended by the learned counsel for the respondent that any act done by a public servant, which constitutes an offence of cheating, cannot be taken to have been committed while acting or purporting to act in the discharge of official duty.
50. But the above contention in our opinion is far-fetched. The observations contained in paragraph 50 of the decision in Parkash Singh Badal (supra) are too general in nature and cannot be regarded as the ratio flowing out of the said case. If by their very nature, the offences under sections 420, 468, 471 and 120-B cannot be regarded as having been committed by a public servant while acting or purporting to act in the discharge of official duty, the same logic would apply with much more vigour in the case of offences under the PC Act. Section 197 of the Code does not carve out any group of offences that will fall outside its purview. Therefore, the observations contained in para 50 of the decision in Parkash Singh Badal cannot be taken as carving out an exception judicially, to a statutory prescription. In fact, Parkash Singh Badal cites with approval the other decisions (authored by the very same learned Judge) where this Court made a distinction between an act, though in excess of the duty, was reasonably connected with the discharge of official duty and an act which was merely a cloak for doing the objectionable act. Interestingly, the proposition laid down in Rakesh Kumar Mishra (supra) was distinguished in paragraph 49 of the decision in Parkash Singh Badal, before the Court made the observations in paragraph 50 extracted above.
51. No public servant is appointed with a mandate or authority to commit an offence. Therefore, if the observations contained in paragraph 50 of the decision in Parkash Singh Badal are applied, any act which constitutes an offence under any statute will go out of the purview of an act in the discharge of official duty. The requirement of a previous sanction will thus be rendered redundant by such an interpretation.
52. It must be remembered that in this particular case, the FIR actually implicated only four persons, namely PW-16, A-3, A-4 an A-5. A-1 was not implicated in the FIR. It was only after a confession statement was made by PW-16 in the year 1998 that A-1 was roped in. The allegations against A-1 were that he got into a criminal conspiracy with the others to commit these offences. But the Management of BHEL refused to grant sanction for prosecuting A-3 and A-4, twice, on the ground that the decisions taken were in the realm of commercial wisdom of the Company. If according to the Management of the Company, the very same act of the co-conspirators fell in the realm of commercial wisdom, it is inconceivable that the act of A-1, as part of the criminal conspiracy, fell outside the discharge of his public duty, so as to disentitle him for protection under Section 197(1) of the Code. 53. In view of the above, we uphold the contention advanced on behalf of A-1 that the prosecution ought to have taken previous sanction in terms of Section 197(1) of the Code, for prosecuting A-1, for the offences under the IPC.
PART-II (REVOLVING AROUND GRANT OF PARDON)
54. As we have indicated elsewhere, the FIR was filed on 31.01.1997 against 4 persons namely K. Bhaskar Rao (the person who turned Approver later) and A-3 to A-5. K. Bhaskar Rao, who later turned approver, was arrested in August, 1998 and released on bail by the respondents themselves. After his release, the said K. Bhaskar Rao gave a confession statement under Section 164 of the Code before the XVIII Metropolitan Magistrate, Chennai on 16.11.1998. On the basis of the statement so given by K. Bhaskar Rao, prosecution filed a petition in Criminal M.P No. 562 of 2000 before the Chief Judicial Magistrate, Madurai under Section 306 of the Code for the grant of pardon. On the said petition so filed on 22.06.2000, the Additional Chief Judicial Magistrate, Madurai (to whom it was made over) summoned K. Bhaskar Rao to appear before him on 17.07.2000. After broadly informing K. Bhaskar Rao of the consequences of his action, the Additional Chief Judicial Magistrate adjourned the matter to 18.07.2000. On 18.07.2000, the Additional Chief Judicial Magistrate read out the contents of his confession statement and asked Bhaskar Rao whether it was voluntarily given by him after knowing the consequences. Once K. Bhaskar Rao answered the questions in the affirmative, the Additional Chief Judicial Magistrate passed an order on 18.07.2000 granting pardon to K. Bhaskar Rao under Section 306 of the Code. Thereafter, the respondents filed a final report on 16.07.2002 directly before the Special Judge for CBI cases, Chennai, without the case being committed by the Magistrate. Since the aforesaid K. Bhaskar Rao had already been granted pardon by the Additional Chief Judicial Magistrate, the prosecution examined him as PW-16 before the Special Court for CBI cases and marked (i) the statement of K. Bhaskar Rao under Section 164 of the Code as Exhibit P- 44; (ii) the copy of the petition filed under Section 306 of the Code dated 22.06.2000 as Exhibit P-51; and (iii) the proceedings dated 17.07.2000 and 18.07.2000 of the Additional Chief Judicial Magistrate, Madurai, relating to the tender of pardon, as Exhibit P-52.
xxx
58. We have carefully considered the above submissions.
59. Before we proceed with our analysis, it is necessary to bring on record Sections 306 and 307 of the Code and Section 5 of the PC Act.
“……………………..”
61. A careful look at the anatomy of Section 306 of the Code shows that it provides a plethora of steps either in the alternative or in addition. They are as follows:-
(i) Section 306(1) divides a criminal case into three stages, namely, (i) investigation; (ii) inquiry; and (iii) trial of the offence.
(ii) A Chief Judicial Magistrate or a Metropolitan Magistrate is empowered to grant pardon to any person, at any of the three stages, namely the stage of investigation, the stage of inquiry or the stage of trial. In contrast, the Magistrate of the first class can grant pardon only in two stages, namely the stage of inquiring into or the stage of trying the offence.
(iii) Sub-section (2) of Section 306 makes the provisions of Section 306 applicable to any offence triable exclusively by a Court of Session or a Court of Special Judge appointed under the Criminal Law Amendment Act, 1952 and to any offence punishable with imprisonment which may extend to seven years or more.
(iv) Sub-section (3) of Section 306 obliges the Magistrate tendering pardon, not only to record reasons for doing so but also to state whether the tender was accepted by the person to whom it was made;
(v) Sub-section (4) of Section 306 makes it mandatory that every person accepting a tender of pardon made under sub-section (1) shall be examined as a witness both in the Court of the Magistrate taking cognizance and in the subsequent trial. Sub-section (4) also imposes an additional condition that the person accepting a tender of pardon shall be detained in custody till the termination of the trial, except when he is already on bail.
(vi) A careful look at clauses (a) and (b) of sub-section (4) shows that the procedure prescribed therein is applicable only to cases covered by sub-section (1).
(vii) Sub-section (5) prescribes that once a person has accepted a tender of pardon under sub-section (1) and has been examined under sub-section (4) then the Magistrate taking cognizance should commit the case for trial either to the Court of Session or to the Court of Special Judge. In cases not covered by clause (a) of sub-section (5), the Magistrate taking cognizance should make over the case to the Chief Judicial Magistrate in terms of clause (b).
62. Section 307 of the Code empowers the Court to which the commitment is made, to tender pardon. The power can be exercised at any time after the commitment of the case but before judgment is passed.
63. Coming to Section 5 of the PC Act, it is seen that sub-section (1) empowers the Special Judge to take cognizance of offences without the accused being committed to him for trial. It also says that while trying the accused persons, the Special Judge is obliged to follow the procedure prescribed by the Code for the trial of warrant cases by the Magistrates. This is why this court held in Bangaru Laxman (in para 40 of the report) that the Special Judge under the PC Act, while trying offences, has a dual power of the Sessions Judge as well as that of the Magistrate and that such a Special Judge conducts the proceedings both prior to the filing of the charge sheet and for holding trial. In fact what was in question in Bangaru Laxman was whether the pardon tendered by the Special Judge, one day before the filing of the charge sheet, was correct or not. This court found the same to be in order.
64. Interestingly, sub-section (2) of Section 5 which empowers the Special Judge to tender a pardon, does not speak about the stage at which a Special Judge may tender pardon. This point can be appreciated if we go back once again to Sections 306 and 307 of the Code which lays down the following rules:-
(i) A Chief Judicial Magistrate or a Metropolitan Magistrate is empowered to tender pardon at any of the three stages;
(ii) The Magistrate of first class is empowered to tender pardon at two stage; and
(iii) The Court to which commitment is made (meaning thereby either a Court of Session or a Court of Special Judge named in sub-clauses (i) and (ii) of clause (a) of sub-section (5) of Section 306) is empowered to tender pardon at only one stage namely the trial of the offence. Though the word trial, used in Section 306(1) is not used in Section 307, the words appearing in Section 307, namely “at any time after commitment of a case but before judgment is passed” can only indicate the stage of trial, in view of the fact that under sub-section (5) of Section 306, committal takes place after cognizance is taken.
65. In contrast, Section 5(2) of the PC Act does not speak about the stage at which pardon may be tendered by a Special Judge. This is perhaps in view of the express provisions of sub-section (1) of Section 5 which empowers the Special Judge himself to take cognizance without the accused being committed to him for trial. But the second part of sub-section (2) of Section 5 of the PC Act creates a deeming fiction that the pardon tendered by the Special Judge shall be deemed to be a pardon tendered under Section 307 of the Code. However, as rightly contended by the learned Senior Counsel for A-7, this deeming fiction is limited for the purposes of Sub-sections (1) to (5) of Section 308 of the Code.
66. It appears that before the advent of the Code of Criminal Procedure, 1973, the Courts were taking a view that the Magistrates had the power to tender pardon even after the commitment of the case for trial to the Court of Session/Special Judge. This was because of the way in which Section 338 of the Code of Criminal Procedure, 1898 was worded. A comparison of Section 307 of the Code of Criminal Procedure, 1973 with Section 338 of the Code of Criminal Procedure, 1898 will make the position more clear.
67. The change brought about by the legislature to the procedure prescribed in Sections 306 and 307 of the Code of 1973 was noted by this Court in A. Devendran vs. State of T.N [(1997) 11 SCC 720]. Incidentally, a question arose in A. Devendran (supra) as to whether the non-examination of the Approver as a witness after grant of pardon was a non-compliance of sub-section (4)(a) of Section 306 and whether it would vitiate the proceedings. Paragraph 10 of the decision in A.Devendran is of importance and hence it is extracted as follows:-
“10. The next question that arises for consideration is as to whether non-examination of the approver as a witness after grant of pardon and thereby non-compliance of subsection 4(a) of Section 306 vitiates the entire proceeding. In the case in hand there is no dispute that after the Chief Judicial Magistrate granted pardon to the accused he was not examined immediately after the grant of pardon and was only examined once by the learned Sessions Judge in course of trial. The question that arises for consideration is: When an accused is granted pardon after the case is committed to the Court of Session would it be necessary to comply with sub-section (4)(a) of Section 306 of the Code. The contention of Mr Mohan, the learned counsel appearing for the State, in this connection is that Section 307 merely mandates that pardon should be tendered on the same condition and such condition obviously refers to the condition indicated in sub-section (1) of Section 306, namely, on the accused making a full and true disclosure of the whole of the circumstances within his knowledge relating to the offence and to every other person concerned, whether as principal or abettor, in the commission thereof. According to the learned counsel, sub-section (4) of Section 306 is not a condition for tendering pardon but is merely a procedure which has to be followed when a person is tendered pardon by a Magistrate in exercise of power under Section 306. Since after a case committed to the Court of Session pardon is tendered by the court to whom the commitment is made, it would not be necessary for such court to comply with sub-section (4)(a) of Section 306. Mr Murlidhar, the learned counsel appearing for the appellants, on the other hand contended, that the object and purpose engrafted in clause (a) of sub-section (4) of Section 306 is to provide a safeguard to the accused who can cross-examine even at the preliminary stage on knowing the evidence of the approver against him and can impeach the said testimony when the approver is examined in court during trial, if any contradictions or improvements are made by him. This right of the accused cannot be denied to him merely because pardon is tendered after the proceeding is committed to the Court of Session”.
68. As seen from what is extracted above, the Chief Judicial Magistrate granted pardon to the accused in that case but he was not examined immediately after the grant of pardon and was only examined once before the Sessions Judge in the course of trial. Therefore, the question that arose was whether it was necessary to comply with sub-section (4)(a) of Section 306, when an accused is granted pardon after the case is committed to the Court of Session. As seen from the argument advanced before this Court in A. Devendran was that the object of clause (a) of sub-section (4) of Section 306 is to provide a safeguard to the accused so that he can cross examine even at the preliminary stage on knowing the evidence of the approver and can impeach the said testimony when the approver is examined in Court during trial.
69. For finding an answer to the said question, the Court in A. Devendran, first made a distinction between a case where tender of pardon was made before the commitment of the same to the Court of Session and a case where pardon is tendered after commitment. After making such a distinction, on the basis of whether pardon was tendered before or after the committal, this Court held in Devendran (para 11) as follows:-
“11. … A combined reading of sub-section (4) of Section 306 and Section 307 would make it clear that in a case exclusively triable by the Sessions Court if an accused is tendered pardon and is taken as an approver before commitment then compliance of sub-section (4) of Section 306 becomes mandatory and non-compliance of such mandatory requirements would vitiate the proceedings but if an accused is tendered pardon after the commitment by the Court to which the proceeding is committed in exercise of powers under Section 307 then in such a case the provisions of sub-section (4) of Section 306 are not attracted. …”
….
71. It is interest to see that in Suresh Chandra Bahri [1995 Supp (1) SCC 80], this court first held that the procedure prescribed in Section 306(4)(a) of the Code is mandatory and not directory and that its non-compliance will render the committal order illegal. After so holding, this court raised a question in the last line of para 30 extracted above, as to what is the effect of such non-compliance on the trial. While answering this question, this court found in Suresh Chandra Bahri, that the Court to which the case was committed, noticed this irregularity even at the threshold and hence remanded the matter back to the Magistrate for recording the evidence of the approver. Thus the defect got cured before trial and hence this court held in paragraph 31 of the decision that eventually no prejudice or disadvantage was shown to have been caused to the accused.
72. Thus, there were two distinguishing features in Suresh Chandra Bahri. The first was that the Chief Judicial Magistrate who tendered pardon in that case committed the case to the Court of Session for trial (unlike the case on hand) without examining the approver as a witness in the Court. The second distinguishing feature was that the Court to whom the case was committed for trial noticed the defect and hence remanded the case back to the Court of Chief Judicial Magistrate. Therefore, this court applied the prejudice test in that case.
73. But more importantly, what was held in Suresh Chandra Bahri to be vitiated, was the committal order. Therefore, it was concluded eventually in Suresh Chandra Bahri that the moment the defect in the committal order is cured before trial, the trial does not get vitiated.
74. But in cases where a Special Court itself is competent to take cognizance and also empowered to grant pardon, the procedure under Section 306 of the Code gets by-passed, as held by this Court in State through CBI vs. V. Arul Kumar [(2016) 11 SCC 733]. An argument was advanced in Arul Kumar (supra) (as seen from paragraph 20 of the Report) that Section 306 of the Code has no application to cases relating to offences under the PC Act. In support of the said argument, the decision in P.C. Mishra vs. State (CBI) [(2014) 14 SCC 629] was also relied upon. While dealing with the said contention, this Court held in Arul Kumar as follows:-
“21. Sub-section (1) of Section 5, while empowering a Special Judge to take cognizance of offence without the accused being committed to him for trial, only has the effect of waiving the otherwise mandatory requirement of Section 193 of the Code. Section 193 of the Code stipulates that the Court of Session cannot take cognizance of any offence as a court of original jurisdiction unless the case has been committed to it by a Magistrate under the Code. Thus, embargo of Section 193 of the Code has been lifted. It, however, nowhere provides that the cognizance cannot be taken by the Magistrate at all. There is, thus, an option given to the Special Judge to straightaway take cognizance of the offences and not to have the committal route through a Magistrate. However, normal procedure prescribed under Section 190 of the Code empowering the Magistrate to take cognizance of such offences, though triable by the Court of Session, is not given a go-by. Both the alternatives are available. In those cases where charge-sheet is filed before the Magistrate, he will have to commit it to the Special Judge. In this situation, the provisions of Section 306 of the Code would be applicable and the Magistrate would be empowered to exercise the power under the said provision. In contrast, in those cases where Special Judge takes cognizance of offence directly, as he is authorised to do so in view of Section 5(2) of the PC Act, 1988, Section 306 of the Code would get bypassed and as the Special Judge has taken cognizance, it is Section 307 of the Code which would become applicable. Sub-section (2) of Section 5 of the PC Act, 1988 makes this position clear by prescribing that it is the Special Judge who would exercise his powers to tender of pardon as can clearly be spelled out by the language employed in that provision. Section 5(2) is to be read in conjunction with Section 5(1) of the PC Act, 1988. The aforesaid legal position would also answer the argument of the learned counsel for the respondent based on the judgment of this Court in A. Devendran [A. Devendran v. State of T.N., (1997) 11 SCC 720=1998 SCC (Cri) 220] . In that case, this Court held that once the proceedings are committed to the Court of Session, it is that court only to which commitment is made which can grant pardon to the approver. The view taken by us is, rather, in tune with the said judgment.”
75. In other words, this Court recognised in Arul Kumar two types of cases, namely (i) those which come through the committal route; and (ii) those where cognizance is taken directly by the Special Judge under Section 5(1) of the PC Act. In the second category of cases, the Court held that Section 306 of the Code would get by-passed.
76. Therefore, it is clear that when the Special Court chooses to take cognizance, the question of the approver being examined as a witness in the Court of the Magistrate as required by Section 306 (4)(a) does not arise. Shri Padmesh Mishra, learned counsel for the respondent is therefore right in relying upon the decisions of this Court in Sardar Iqbal Singh vs. State (Delhi Administration) [(1977) 4 SCC 536] and Yakub Abdul Razak Memon vs. State of Maharashtra [(2013) 13 SCC 1].
77. In Sardar Iqbal Singh (supra) the offence was triable by the Special Judge who also took cognizance. Therefore, there were no committal proceedings. Though Sardar Iqbal Singh arose under the 1898 Code, sub-section (2) of Section 337 of the 1898 Code was in pari materia with Section 306(4)(a) of the 1973 Code. Therefore, the ratio laid down in Sardar Iqbal Singh was rightly applied in Yakub Abdul Razak Memon (supra) for coming to the conclusion that where a Special Judge takes cognizance of the case, the occasion for examining the approver as a witness arises only once.
78. In any case, all decisions cited so far, uniformly say that the object of examining an approver twice, is to ensure that the accused is made aware of the evidence against him even at the preliminary stage, so as to enable him to effectively cross examine the approver during trial, bring out contradictions and show him to be untrustworthy. The said object stands fulfilled in this case, since the confession statement of the approver before the XVIII Metropolitan Magistrate was enclosed to the Charge Sheet. The approver was examined as PW-16 during trial and he was cross examined on the contents of the confession statement. The Magistrate who recorded the confession was examined as PW 17 and the Additional Chief Judicial Magistrate who granted pardon was examined as PW-18. The proceedings before the XVIII Metropolitan Magistrate, the petition under section 306 of the Code and the proceedings on tender of pardon were marked respectively as EXX. P-50, 51 and 52. All the accused were given opportunity to cross examine these witnesses both on the procedure and on the contents.
79. In view of the above, we are of the considered view that there was no violation of the procedure prescribed by Section 306(4)(a) of the Code. Thus, we answer the second issue against the appellants.
PART-III (REVOLVING AROUND THE MERITS OF THE CASE QUA CULPABILITY OF EACH OF THE APPELLANTS BEFORE US)
AS REGARDS A-1
80. Though we have found in Part-I of this judgment that the failure of the prosecution to take previous sanction under Section 197(1) of the Code has vitiated the proceedings against A-1, we would nevertheless deal with his case on merits to see if the offences under the IPC or under the PC Act stood proved beyond reasonable doubt.
83. As rightly contended by Shri Huzefa Ahmadi, learned senior counsel, this Court has laid down two tests in Sarwan Singh vs. State of Punjab [1957 SCR 953], to be satisfied before accepting the evidence of an approver. The first is that the approver is a reliable witness and the second is that his statement should be corroborated with sufficient evidence. Again, in Ravinder Singh vs. State of Haryana [(1975) 3 SCC 742] this Court pointed out that, “an approver is a most unworthy friend” and that he having bargained for his immunity, must prove his worthiness for credibility in court. The test to be fulfilled was pithily put in paragraph 12 of the Report by this Court as follows:-
“12. … This test is fulfilled, firstly, if the story he relates involves him in the crime and appears intrinsically to be a natural and probable catalogue of events that had taken place. The story if given of minute details according with reality is likely to save it from being rejected brevi manu. Secondly, once that hurdle is crossed, the story given by an approver so far as the accused on trial is concerned, must implicate him in such a manner as to give rise to a conclusion of guilt beyond reasonable doubt. In a rare case taking into consideration all the factors, circumstances and situations governing a particular case, conviction based on the uncorroborated evidence of an approver confidently held to be true and reliable by the Court may be permissible. Ordinarily, however, an approver’s statement has to be corroborated in material particulars bridging closely the distance between the crime and the criminal. Certain clinching features of involvement disclosed by an approver appertaining directly to an accused, if reliable, by the touchstone of other independent credible evidence, would give the needed assurance for acceptance of his testimony on which a conviction may be based.”
84. Section 133 of the Indian Evidence Act, 1872 declares an accomplice to be a competent witness and that a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice. However, while considering the import of Section 133. This Court held in M.O. Shamsudhin vs. State of Kerala [(1995) 3 SCC 351] that the court is bound to take note of a precautionary provision contained in Illustration (b) to Section 114 of the Evidence Act, which provides that an accomplice is unworthy of credit unless he is corroborated in material particulars.
85. Keeping the above principles in mind, if we turn our attention to the evidence of PW-16, it will be seen that he was trying to shift the burden on A-1, to save his own skin. The following admissions made by him during the cross-examination showed that he was unworthy of credit:-
“………”
OFFENCE OF CONSPIRACY NOT SUSTAINED
103. In fact, the only person found by both the Courts to be guilty of the offence under Section 120B was A-1. Therefore, an argument was advanced that a single person cannot be held guilty of criminal conspiracy. But this contention was repelled by the Courts on the ground that PW-16 was the second person with whom A-1 had entered into a conspiracy. In other words, the reasoning adopted by the Trial Court and the High Court was that only A-1 and PW-16 were part of the conspiracy. Such a reasoning was a huge climbdown from the original charge that A- 1 to A-7 entered into a criminal conspiracy, to cause wrongful loss to BHEL and to confer a wrongful gain to A-5 to A-7. Once an offence of Section 120B is not made out against A-5 to A-7, the very foundation for the prosecution becomes shaky. Therefore, we are of the view that the conviction of A-1 for the offences under Section 120B read with Sections 420, 468, Section 471 read with Section 468 and Section 193 IPC and Section 13(2) read with Section 13(1)(d) of the PC Act cannot be sustained.
CONVICTION FOR FALSE EVIDENCE NOT CORRECT
104. We are surprised that A-1 was found guilty of an offence under Section 193. Section 193 applies only to false evidence given in any stage of a judicial proceeding or the fabrication of false evidence for the purpose of being used in any stage of a judicial proceeding. The allegation against A-1 was not even remotely linked to any of the Explanations under Section 193 of the IPC. Therefore, the judgment of the Trial Court and that of the High Court convicting A-1 for the aforesaid offences and sentencing him to imprisonment of varying terms and fines of different amounts are liable to be reversed.
SECTION 73 EVIDENCE ACT
130. The High Court fortunately realised the pitfall in the reasoning of the Trial Court. But in an over-anxiety to somehow convict A-7, the High Court adopted a very peculiar route, namely that of undertaking the task of comparing the admitted signatures/ handwritings with the disputed ones under Section 73 of the Evidence Act.
131. For invoking Section 73, there must first have been some signature or writing admitted or proved to the satisfaction of the Court, to have been written or made by that person. The Section empowers the Court also to direct any person present in Court to write any words or figures for the purpose of enabling the Court to compare the words or figures.
132. There was no signature or writing available before the High Court, which had been admitted or proved to the satisfaction of the Court to have been written or made. The High Court did not also direct A-7 to write any words or figures for the purpose of enabling a comparison. Without following the procedure so prescribed in Section 73, the High Court invented a novel procedure, to uphold the conviction handed over by the Trial Court through a wrong reasoning.
xxx
135. Even in the questioning under Section 313 of the Code, no specific question was put to A-7 whether Exhibits P-66, P-76, P-90, P-92 and P- 75 were in his handwritings and whether they contained his signatures. Therefore, what was contained in Exhibit P-75 was not even admitted signatures.
136. In the absence of either admission or proof of the admitted signatures, the High Court could not have resorted to Section 73 of the Evidence Act.
CONCLUSION
139. In the light of the above discussion, all the appeals are allowed and the judgment of the Special Court for CBI cases convicting the appellants for various offences and the judgment of the High Court confirming the same are set aside. The appellants are acquitted of all the charges. The bail bonds, if any, furnished by them shall stand discharged.
Accused Acquitted.
PARTY: A. SRINIVASULU vs. THE STATE REP. BY THE INSPECTOR OF POLICE – CRIMINAL APPEAL NO. 2417 OF 2010 – June 15, 2023.
https://main.sci.gov.in/supremecourt/2010/31937/31937_2010_7_1502_44711_Order_15-Jun-2023.pdf
