Jayalakshmi Jaitly v. Central Bureau of Investigation & Anr.

1. The petitioner challenges the validity and propriety of order dated 11.12.2006 of learned Special Judge, CBI by which Surendra Kumar Surekha (2"^ respondent) was granted pardon on the condition that he would make true and full account of the facts and circumstances within his knowledge relating to the offence committed by him in conspiracy with co-accused either as a principal or an abettor. Crl.M.C1036/2013 Page 1 of[8] 2013:DHC:7316

2. I have heard the learned counsel for the petitioner and have examined the Trial Court record. Counsel urged that pardon was granted mechanically without application of mind by the learned Special Judge. CBI deliberately did not place before the Court all the circumstances surrounding the recording of respondent No.2's statement as also the circumstances precedingthe impugned order as it (CBI) was in collusion with him respondent) and had procured 164 statement with tacit understanding to grant him pardon. It was not a voluntary statement being inspired by inducement. For that reason CBI did not object grant of anticipatory bail to him. He was not arrested immediately after recording statement under Section 161 Cr.P.C. on 04.03.2005. Counsel further argued that the learned Special Judge did not appreciate variations in 161 and 164 Cr.P.C. statements. The statement tendered under Section 164 Cr.P.C. could not have been believed and acted upon. She further pointed out that various documents relating to the petitioner including previous statements made before Commission of Inquiry were not placed before Special Judge, CBI and she was kept in the dark on vital facts. Requirements of Sections 306 and 307 Cr.P.C, were not complied with. Pardon could not have been grantedtd the respondent No.2 who was not a reliable witness. Crl.M.C. 1036/2013 \;

3. It is a matter of record that CBI registered First Information Report on 06.12.2004 as RC AC3/ 2004 A0005. Statement of 2"'' respondent under Section 161 Cr.P.C. was recorded on 04.03.2005. On 17.03.2005, he (2"^^ respondent) moved Special Judge, CBI under Section 438 Cr.P.C. for grant of anticipatory bail. CBI did not oppose it and he (2"^ respondent) was granted bail on 23.03.2005. On 24.03.2005, he (2"*^ respondent) moved an application before Special Judge, CBI through his counsel Sh.Ramesh Gupta, Advocate for recording his statement under Section 164 Cr.P.C. Sh.V.K.Khanna, the then Metropolitan Magistrate (CBI Court) recorded it on 27.04.2005. It is not in dispute that subsequently an application under Section 5 (2) Prevention of Corruption Act, 1988 read with Section 306 of Criminal Procedure Code for grant of pardon to Suendra Kumar Surekha was moved on 07.11.2006 before Special Judge, CBI duly forwarded by Ms.Padmini Singh, Spl.PP for CBI. On 21.11.2006, Special Judge directed to put up the application with FIR and statement of Surendra Kumar Surekha recorded under Section, 164 Cr.P.C. On 11.12.2006 for detailed reasons pardon was extended to respondent No.2. 2""^ respondent's statement under Section 164 Cr.P.C. was discussed in detail in the impugned order. It is further a matter of record that subsequently a charge-sheet was filed in the Court on Crl.M.C 1036/2013 Page 3 of[8] 27.12.2006. Byanorder dated 28.02.2012, charges under various sections were framed. CBI, thereafter, examined nine witnesses. Surendra Kumar Surekha has been partly examined as PW-10.

4. There is considerable delay in challenging the impugned order of pardon. The petitioner hasnot given plausible explanation for the inordinate delay when she was aware of it fi°om the very inception after the filing of the charge-sheet in 2006. At no stage (even at the time of consideration ofcharge), the petitioner opted to challenge the validity and propriety ofthe pardon granted to the 2^^ respondent.

5. I find no irregularity in the application moved through counsel Sh. Ramesh Gupta, Advocate to record statement under Section 164 on 24.03.2005. On 26.04.2005, Spl.P.P. for CBI consented to it. Since CBI had not moved the Court to record 2^^ respondent's statement under Section 164 Cr.P.C., no fault can be found when CBFs consent to record it was obtained. Metropolitan Magistrate put preliminary questions to the 2"^^ respondent before recording confession to ascertain if it was being made voluntarily. It is true that in the statement (Ex.PW-lO/A) there is mention that 'Application has been moved by Surendra Kumar Surekha for becoming approver / witness'. Counsel urged that learned Metropolitan Magistrate did not apply his mind as no such application for Cf/.M.C. 1036/2013 Page 4 of[8] becoming approver / witness was moved before him. In my view, this lapse cannot be taken as non-application of mind. The proceedings are to be scrutinized as a whole. There is specific mention that confession of applicant Surendra Kumar Surekha under Section 164 Cr.P.C. was being recorded. CBI did not ask to grant pardon to 2"^ respondent soon after making of statement under Section 164 Cr.P.C. It was moved only on 07.11.2006. Before considering this application, vide order dated 21.11.2006, Special Judge directed FIR and statement, under Section 164 Cr.P.C. to be placed before her. On 11.12.2006, after considering all the relevant facts and circumstances including the confessional statement Special Judge proceeded to examine Surendra Kumar Surekha with regard to his request for grant ofpardon under Section 306 Cr.P.C. and his prayer to become approver. Several questions were put to him to ascertain the veracity of whatever he had stated in his confessional statement under Section 164 Cr.P.C. and the ftill accounts of the circumstances relating to the case. The Special Judge, thereafter, recorded her satisfaction that the applicant and co-accused were involved in the commission of offence and it would be in the interest of justice, if his evidence was obtained as an approver. She was satisfied that CBI was not motivated by any malice in endorsing the request for getting him pardon under Section 306 Cr.P.C. CrhM.C 1036/2013 Page 5 of[8] She considered it a fit case where tender and pardon under Section 306 Cr.P.C. should be granted. Accordingly, Surendra Kumar Surekha was granted the pardon. The conditions of pardon were read over,and explained to himinHindi and English.

6. The citation 'Ashok Kumar Aggarwal vs. Central Bureau of Investigation andanr.' 2007 (98) DRJ 80 relied on by the petitioner is not applicable to the facts and circumstances of this case. In the said case, apparently, CBI had not placed the entire relevant material before the Special Judge to form an opinion as to whether it was a case of grant of pardon or not. The matter was remanded to Special Judge to consider the application afresh as the charge-sheet had not yet been filed; antecedents of the applicant & list of criminal cases being investigated by different agencies as asked for was not furnished; and the reply from Swiss Bank on certain points referred in Letter Rogatory was still awaited. In the instantcase, there was no suchrequirement/ query of Special Judgewhich were to be complied or replied by CBI. The FIR and statement under Section 164 Cr.P.C. were before the Special Judge while considering the application ofCBI for grant ofpardon to 2"^ respondent. Itwas a detailed application which contained brief facts of the case. The satisfaction recorded by Special Judge cannot be faulted on flimsy grounds by the Crl.M.C 1036/2013 petitioner after aconsiderable delay ofabout 8— 9years particularly when the 2"'' respondent's statement as approver has been partly recorded.

7. It is well settled that the tender of pardon and its acceptance by the person concerned is amatter entirely between the Court concerned and the person to whom it is made and if the tender of a pardon is accepted by the accomplice concerned, the only obligation placed upon the prosecution is to examine him as awitness in the case. He will then be subjected to cross-examination by the co-accused and itwill be for the coaccused to show bysuch cross-examination that the statement that ismade by the accomplice isa false statement. Whether the statement made by the accused seeking for pardon is voluntary or not is to be decided by the Court alone. If it is the case of the other accused that the statement of the approver is wrong, it has to be established by subjecting the approver to cross-examination.

8. The pardon proceeding which takes before theMagistrate is neither an enquiry nor a trial in which an opportunity must be given to the other accused to show to the Court that the statement of the accused seeking pardon is not true. Only during the course of trial, the opportunity will be given to the accused to show to the Court that the approver's evidence at the trial is untrustworthy in view of the Crl.M.C. 1036/2013 Page 7 of[8] contradictions orimprovements made by him by allowing the accused to cross-examine. Petitioner's contention that the statement given by 2"^ respondent is self-exculpatory and has been given implicating others in order to escape from the punishment has no merit at this juncture. For granting pardon under Section 306 Cr.P.C., it is not a pre-requisite condition that the statement of a person on whose behalf pardon is sought must be in the nature ofconfession or he must implicate himself fully in the offence. What the section requires is to obtain statement from the person who is supposed to be directly or indirectly concerned inor privy to the offence and such aperson can be granted pardon on the condition of his making a frill and true disclosure of whole of the circumstance within his knowledge relative to the offence. (CBI vs.N.K. Amin & Ors., 2011 (3) RCR (Criminal) 834).

9. The circumstances highlighted by the learned counsel can't betaken asabsolutely relevant to form anopinion to grant pardon ornot.

10. Thepetition is unmerited andis dismissed.

(S.P.GARG) JUDGE