- (1.) This revisional application under sections 401 and 482 of Cr. PC is directed against orders dated 21.5.04 and 17.6.04 passed by the learned Judge, 1st Special Court, Alipore, South 24-Parganas in RC. AC 2/02A of 2003 granting pardon to two accused persons.
(2.) Mr. Milon Mukherjee, learned Advocate for the petitioner submitted that by the order dated 21.5.04 learned Judge allowed the prayer of prosecution under section 5 of the Prevention of Corruption Act (P C Act) and tendered pardon to accused No. 3 Sk. Ansu and accused No. 6 Sk. Sadiq Mallick. Subsequently, by order dated 17.6.04 learned Judge allowed the prayer of prosecution and petition of aforesaid two persons relating to acceptance of conditions for the tender of pardon. In view of provisions of section 5 of the P C Act and section 306 of Cr. PC, the learned Judge before tendering pardon must satisfy as to whether the person accepting tender of pardon is really interested in making true and full disclosure of the facts and circumstances of the case involving himself and other accused and, he must be ready to fulfil the conditions for grant of pardon and thereafter only a learned Judge can grant pardon. In the instant case the learned Judge by order dated 21.5.04 granted pardon first and subsequently by order dated 17.6.04 imposed conditions for the acceptance of pardon. Both the orders were against provisions of law relating to tender of pardon and the said orders being illegal requires to be set aside. Accused Sadiq Ali Mallick was on bail granted by the Investigating Officer (I. O.) which is against provisions of law. The said accused did not obtain any bail from Court and was not arrested and after acceptance of pardon he was not sent into judicial custody. The statement of accused Sandip Sekhar @ Sk. Ansu was recorded by a Magistrate of Delhi at Patiala Court. The learned Judge did not peruse the statement of accused Sk. Ansu and accused Sadiq Ali Mallick and did not try to ascertain what full and true disclosure of facts and circumstances of the case they wanted to make through their statements. The learned Judge without considering what disclosure was made by them granted them pardon and after granting pardon imposed conditions. The said orders passed by the learned Judge were bad in law.
(3.) Mr. Mukherjee further submitted that the aforesaid statement of the accused persons under section 164 of Cr. PC were not recorded in accordance with law. Conditions laid down in sub-sections (1), (2), (3) and (4) of section 164 of Cr. PC were not followed. Provisions of section 306 of Cr. PC relates to investigation and the prosecution wanted to show Sk. Ansu and Sadiq Ali Mallick as witnesses of prosecution in the chargesheet. The petitioner who is accused in this case would be seriously prejudiced, if such statement of aforesaid Sk. Ansu and Sadiq Ali Mallick are accepted and they are granted pardon on such statements which were not perused by the learned Judge and were not recorded in accordance with law. The order of the learned Judge is revisable and the said two orders should be set aside. In support of his contention Mr. Mukherjee cited the decisions in Ramzan Sk. vs. State of West Bengal, reported in 2004 C Cr. LR (Cal) 485, Suresh Chandra Bahri vs. State of Bihar, reported in AIR 1994 SC 2420, Jasbir Singh vs. Vipin Kumar Jaggi, reported in 2001 Cr. LJ 3993, Bipin Behari Sarkar vs. State of West Bengal, reported in AIR 1959 SC 13, Shivappa vs. State of Karnataka, reported in 1995 SCC (Cri) 323 and Tulsi Singh vs. State of Punjab, reported in 1996 SCC(Cri) 1118.;