- (1.) This appeal has been preferred against the impugned judgment and order dated 20.8.2007 passed by the High Court of Delhi at New Delhi in Crl. Misc. (Main) No. 3741 of 2001, by which it has set aside the order of the Special Judge dated 7.9.2001 granting pardon to respondent no. 2, Shri Abhishek Verma under Section 306 of Code of Criminal Procedure, 1973 (hereinafter referred to as the 'Cr.P.C.') and making him an approver in the case wherein respondent no.1, Ashok Kumar Aggarwal is also an accused; and remanded the same to decide the application afresh.
(2.) Facts and circumstances giving rise to this appeal are that: A. A case was registered by the appellant, CBI on 29.1.1999 on the written complaint of one Abhijit Chakraborty, Additional Director, Enforcement Directorate (hereinafter referred to as 'ED'), Ministry of Finance, Government of India. The complainant alleged that the Delhi Zonal office of the Enforcement Directorate conducted a search at the office i.e. three shops at Hotel Maurya Sheraton, New Delhi and residential premise i.e. G-51, Lajpat Nagar III, New Delhi of one Subhash Chandra Barjatya on 1.1.1998. Respondent no.1 was the Deputy Director incharge of Delhi Zone at the relevant time. B. During the searches, the officers of the ED seized a fax message (debit advice) from one of the shops of said Shri S.C. Barjatya, purportedly sent from Swiss Bank Corporation, Zurich, Switzerland. This fax message reflected a debit of US $ 150,000/- from the account of Royalle Foundation, Zurich, Switzerland in favour of one S.K. Kapoor, holder of account no. 022-9-608080, Hong Kong & Shanghai Banking Corporation (HSBC), as per the advice of the customer i.e. Royalle Foundation. C. Shri S.C. Barjatya filed a complaint dated 4.1.1998 with Director Enforcement alleging that the fax message from Swiss Bank Corporation was a forged document and had been planted in his premises during the course of the search undertaken on 1.1.1998 in order to frame him. The complainant and his employee had been illegally detained on the said night and were threatened and manhandled. D. The ED conducted an enquiry and Shri S.C. Barjatya was arrested on 28.1.1998.. In March 1998, Shri Barjatya submitted a letter to ED allegedly procured by one Shri M. Kapoor, Chartered Accountant of Shri S.C. Barjatya from Eric Huggenberger, Attorney of Swiss Bank Corporation, Zurich, Switzerland, which was later on authenticated by the Bank and the Indian Embassy in Berne, confirming that the above said fax message was a forged document and was never issued by the Swiss Bank Corporation, Zurich, Switzerland. E. In view of the above facts, a prima facie view was taken that a criminal conspiracy had been hatched by the officers of the Delhi Zonal office to create a forged document and to use it as a genuine document to create false evidence and to implicate S.C. Barjatya. F. Respondent no.2 was arrested in November, 1999 and his statement was recorded under Section 161 Cr.P.C. before the CBI disclosing that he played an active role in forging the said fax on the instructions of respondent no.1. On 2.12.1999, confessional statement of the respondent no.2 was recorded in the court of Metropolitan Magistrate under Section 164 Cr.P.C., wherein he re-iterated his statement as made before the CBI. During this period, respondent no.1 remained absconding and could be apprehended only on 23.12.1999 from a hotel at Saharanpur wherein he was staying under a fictitious name. G. Respondent no.2 filed an application under Section 306 Cr.P.C. for grant of pardon and becoming an approver on 18.7.2000. The Court entertained the said application and issued notices on 3.8.2000. When the said application came up for hearing on 1.9.2000, the Presiding Officer was on leave. Thus, the matter was adjourned for 21.9.2000. H. The CBI filed a reply to the said application on 1.9.2000 stating that it had no objection if respondent no.2 was tendered pardon and made an approver. However, as the investigation was not complete, the application could not be decided. Respondent no.1 filed an application on 30.10.2000, praying that he should be given an opportunity to be heard before the respondent no.2 is tendered pardon and made an approver. I. When the matter came up on 3.11.2000 before the court, respondent no.2 himself made an application that the investigation was still pending and therefore, hearing of his application seeking pardon be deferred and which was accordingly ordered. J. The learned Special Judge issued a Letter Rogatory dated 29.1.2001 to the competent judicial authority in Switzerland seeking certain information in respect of the transactions revealed by the said fax purported to be a forged and fabricated document. K. Respondent no.2 filed an application dated 2.5.2001 for revival of the earlier application seeking pardon and making him an approver, though the reply to the Letter Rogatory was still awaited. However, the CBI filed its reply dated 3.5.2001 and submitted that the reply to the Letter Rogatory would be only corroborative in nature and would not have any effect in deciding the application filed by respondent no.2. L. Respondent no.1 moved an application on 3.5.2001 claiming that he had a right to oppose the application filed by respondent no.2 seeking pardon. However, the said application was rejected by the learned Special Judge on the same day. The said order dated 3.5.2001 rejecting the application of respondent no.1 claiming the right to oppose the application filed by respondent no.2 was affirmed by the High Court vide order dated 10.7.2001 and by this Court vide order dated 8.10.2001. M. The reply to the Letter Rogatory dated 18.7.2001 was received by the CBI on 30.7.2001 and the said reply was placed before the court. The CBI requested the court that it should be permitted to retain the same for further investigation which was allowed. The learned Special Judge allowed the application of respondent no.2 seeking pardon and made him an approver vide order dated 7.9.2001. N. Aggrieved, respondent no.1 filed a writ petition challenging the said order dated 7.9.2001 which was subsequently converted into a petition under Section 482 Cr.P.C. i.e. Crl. Misc. (Main) No. 3741 of 2001. During the pendency thereof, charge sheet was filed on 28.6.2002 and the learned Special Judge took cognizance of the case vide order dated 8.7.2002. The Special Judge proceeded further and framed the charges vide order dated 17.12.2005. In the meanwhile, the prosecution obtained sanction for prosecution of respondent no.1, and the same was challenged by the respondent no.1 by preferring Writ Petition No. 1401/2005. O. The High Court dealt with the petition under Section 482 Cr.P.C. vide impugned judgment and order dated 20.8.2007 and quashed the order dated 7.9.2001. The matter was remitted to the learned Special Judge to decide the application afresh in light of the charge sheet and the relevant material available with the CBI. Hence, this appeal.
(3.) Shri K.V. Vishwanathan, learned ASG appearing for the appellant has submitted that the order passed by the Special Judge on 7.9.2001 was in consonance with the law laid down by this Court. The question of examining the culpability or comparing the same between the accused does not arise. Pardon can also be granted to an accused whose culpability is higher than that of the other accused in the crime. The Special Judge has passed the order strictly observing and following the ratio laid down by this court in this regard in Lt. Commander Pascal Fernandes v. State of Maharashtra & Ors., 1968 AIR(SC) 594 and subsequent judgment in Jasbir Singh v. Vipin Kumar Jaggi & Ors., 2001 AIR(SC) 2734. The High Court erred in setting aside the order of the Special Judge and remanding the case to be decided afresh. The High Court failed to appreciate that respondent no.1 had earlier approached the High Court and this court moving various applications but did not succeed. Those orders had attained finality, however, were not taken note of by the High Court. The oral direction given by the Special Judge that the CBI should file the list of cases being investigated by different agencies involving respondent no.2 was not complied with. However, failure on part of the CBI to do so would not materially affect the decision of the Special Judge granting pardon and making respondent no.2 an approver. Granting pardon and making an accused approver is a matter between the court and the applicant accused. The co-accused has no right to be heard before any forum. Therefore, the impugned order is liable to be set aside.;