PARTHA SAKHA DATTA,J. - (1.) THE petitioner was one of the five accused persons who was being tried before the learned Judge, 1st Special Court at Alipore in Special Case No. 6 of 1998 under Section 120B/420/467/468/471 IPC and under Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988. Before the learned Magistrate the petitioner made a statement inculpatory under Section 164 Cr.P.C. and thereafter prayer was made before the learned Magistrate by the petitioner under Section 306 Cr.P.C. for grant of pardon. The learned Magistrate granted pardon but the order was set aside by this court in CRR No. 628 of 2000 with CRR No. 1159 of 2000 and CRR No. 1160 of 2000 on 6th of December, 2001 holding that when a case is triable by a Special Judge the Metropolitan Magistrate has no jurisdiction to grant pardon. The case was then forwarded to the learned Judge, First Special Court, Alipore for trial after the charge sheet was submitted. Now, before the learned Judge the petitioner again made an application for grant of pardon. The petition was objected to by the learned advocate for the CBI in the trial court on the ground that the prosecution was not agreeable to the grant of pardon to the petitioner because petition was filed after a gap of six years only on 28th of April, 2008. Learned Judge observed that such delay was not on account of the petitioner but was on account of one accused Arun Agarwal moving the Hon'ble Supreme Court for discharge in his favour and the learned Judge could not proceed with the case further on that ground. However, the learned Judge observed that in view of 'dogmatic approach' of the CBI he was not allowing the prayer of the petitioner for grant of pardon.
(2.) THE petitioner has come up with the application under Section 482 Cr.P.C. to challenge this order of the learned Judge, 1st Special Court, Alipore contending that the learned Judge committed illegality in refusing to grant pardon because the petitioner was granted pardon by learned Magistrate earlier but only because of the fact that the learned Magistrate was incompetent to accept the pardon the order was set aside. The petitioner made a fresh application before the learned Special Judge and furthermore in his 164 Cr.P.C. statement the petitioner made full disclosure about the commission of the offence which is absolutely inculpatory and in view of these circumstances refusal of the prayer for grant of pardon was unjustified. Further it is submitted by Mr. S.S. Roy, learned advocate appearing for the petitioner that the provision of Section 306 of the Cr.P.C. does nowhere say that the grant of pardon is dependent upon the objection or no objection of the prosecution. Mr. Roy further submits that the period of six years as has been ventilated by the learned advocate for the CBI in the trial court was not a period of silence made by the petitioner. Mr. Ranjan Roy, learned advocate appearing for the CBI opposed the application on the ground that the grant of pardon can be exercised on the prayer of the accused no doubt but the prosecution has right to join such a request. A Three-Judge Bench decision of the Supreme Court in Lt. Commander Pascal Fernandes v. State of Maharashtra and Ors., AIR 1968 SC 594 has been referred to in this decision. Their Lordships observed inter alia as follows : "The next question is whether the Special Judge acted with due propriety in his jurisdiction. Here the interests of the accused are just as important as those of the prosecution. No procedure or action can be in the interest of justice if it is prejudicial to an accused. There are also matters of public policy to consider. Before the Special Judge acts to tender pardon, he must, of course, know the nature of the evidence the person seeking conditional pardon is likely to give, the nature of his complicity and the degree of his culpability in relation to the offence and in relation to the co-accused." Again it has been observed as follows : "To determine whether the accused's testimony as an approver is likely to advance the interest of justice, the Special Judge must have material before him to show what the nature of that testimony will be. Ordinarily it is for the prosecution to ask that a particular accused, out of several, may be tendered pardon. But even where the accused directly applies to the Special Judge he must first refer the request to the prosecuting agency. It is not for the Special Judge to enter the ring, as a veritable director of prosecution. The power which the Special Judge exercises is not on his own behalf but on behalf of the prosecuting agency, and must, therefore, be exercised only when the prosecution joins in the request. The State may not desire that any accused be tendered pardon because it does not need approver's testimony. It may also not like the tender of pardon to the particular accused because he may be the brain behind the crime or the worst offender. The proper course for the Special Judge is to ask for a statement from the prosecution on the request of the prisoner. If the prosecution thinks that the tender of pardon will be in the interests of a successful prosecution of the other offenders whose conviction is not easy without the approver's testimony, it will indubitably agree to the tendering of pardon. The Special Judge (or the Magistrate) must not take on himself the task of determining the propriety of tendering pardon in the circumstances of the case. The learned Special Judge did not bear these considerations in mind and took on himself something from which he should have kept aloof. All that he should have done was to have asked for the opinion of the Public Prosecutor on the proposal. But since the Public Prosecutor, when appearing in the High Court, stated that the prosecution also considered favourably the tender of pardon to Jagasia we say no more than to caution Magistrates and Judges in the matter of tender of pardon suo motu at the request of the accused."
(3.) IN view of the learned Public Prosecutor opposing the application for grant of pardon the learned Judge rightly rejected the prayer although it could not be understood what the learned Judge means to convey by the word 'dogmatic approach'. Accordingly, application is dismissed.;