N.C. Talukdar, J. - (1.) This Rule is against an order dated August 22,1968, passed by Sri R.L. Mukherjee, Presidency Magistrate, Sixth Court, Calcutta, allowing the application of the accused No. 2, Joychandlal Gauti alias J.J. Gauti, and tendering to him pardon under Sec. 337 of the Code of Criminal Procedure in case No. G.R. 1802/67 pending under Ss. 120 -B/420, 420, 467 and 471, Indian Penal Code.
(2.) The facts leading on to the present Rule can be put in a short compass. Sri Jotram, Deputy Superintendent of Police, C.B.I., Special Police Establishment, Fraud Squad (1), New Delhi, filed a charge -sheet before the learned Chief Presidency Magistrate, Calcutta, on December 28, 1967, against the two Petitioners as well as five others under Sec. 120B read with Ss. 420, 467 and 471, Indian Penal Code, alleging, inter alia, that between August 1962 and February 1964 they along with some others were parties to a criminal conspiracy to cheat M/s National Company Limited by dishonestly obtaining from the company higher amounts than were actually spent for the purchase of jute. In the said charge -sheet, the accused Petitioner No. 1, Inder Chand Choraria, was described as the Jute Purchase Master of M/s National Company Limited at 18A Brabourne Road, Calcutta, and the accused Petitioner No. 2, Jhawarlal Mukim, was described as the ex -purchase -in -charge of the Karimpur agency of the said firm. The learned Chief Presidency Magistrate, Calcutta, by his order of the same date issued summons against the accused persons under the above -mentioned charges. The accused persons thereafter appeared and were released on bail and an enquiry under Sec. 207A of the Code of Criminal Procedure was held before Sri R.L. Mukherjee, Presidency Magistrate, Sixth Court, Calcutta, to whom the case was transferred on May 15, 1968. On July 11, 1968, a petition was filed before the learned enquiring Magistrate on behalf of the accused No. 2, Joychandlal Gauti, praying for a grant of pardon under Sec. 337 of the Code of Criminal Procedure and stating, inter alia, that the said accused was concerned in the offences and was prepared to make a full and true disclosure of the circumstances within his knowledge relative to the offences and to every other person concerned including himself and that he was prepared to give true and material evidence in the case. The accused was cautioned on that date by the learned Presidency Magistrate, who heard the arguments of both the parties on the said petition and ultimately by his order dated August 22, 1968, he was, pleased to allow the prayer of the said accused and tendered him pardon under Sec. 337 of the Code of Criminal Procedure. This order has been impugned and forms the subject -matter of the present Rule.
(3.) Mr. Anil Chandra Mitra, the counsel (with Mr. Bejoy Kumar Bhose, Advocate) appearing on behalf of the accused -Petitioner, has made a three -fold submission. Mr. Mitra contended in the first place that the order passed by the learned Presidency Magistrate was bad in law and de hors the provisions of Sec. 337 of the Code of Criminal Procedure inasmuch as amongst others it had overlooked the guiding, principles laid down by the Courts in the matter of granting pardon under the said section. In this context, Mr. Mitra referred to the case of Lt. Commander Pascal Fernandes v/s. State of Maharastra and Ors. : A.I.R. 1968 S.C. 594 (599, paras. 14, 15) and relied on the observations made therein as constituting the guiding principles in this behalf. He further referred to the unreported decision of the Supreme Court dated September 16,1968, in the case of M.M. Kochar v/s. Delhi Administration Supreme Court judgment dated September 16, 1968 and also to the case of Kashinath Krishna Bapat v/s. The State of Mysore and Anr., (1963) 1 Cri. L.J. 547 as bearing on the point. The second contention raised by the Learned Counsel is that the accused No. 2, being the cashier at the material time of the Karimpur agency of the National Company Limited, and according to the prosecution allegations, having forged the documents, was prima facie the principle offender so far as that agency is concerned and, as such, the grant of pardon to him has operated to the serious prejudice of the accused Petitioners. The third and last contention of Mr. Mitra is that, in any event, the order passed by the learned Presidency Magistrate is not maintainable in law because of the observations made by him in the first part of the order, ruling out the ultimate findings arrived at by him at the end of the judgment justifying the grant of such pardon. Mr. R.C. Deb, Advocate -General, West Bengal, (with Mr. 'Dilip Kumar Butt, Advocate) appearing on behalf of the State joined issue. The learned Advocate -General contended in the first place that the application that was filed on behalf of the accused No. 2 for grant of pardon does conform to the provisions of Sec. 337 of the Code of Criminal Procedure and the statements made in paras. 2 and 3 therein bear out the same. Mr. Beb urges that the intention of the Legislature as incorporated in Sec. 337 of the Code is merely that the approver is to be granted pardon under the said Sec. on condition of his making a full and true disclosure and not that a preliminary statement by him is to be recorded as the condition precedent for granting such, pardon. In this context, Mr. Deb relied on the observations of the Supreme Court made in the case of Lt. Commander Pascal Fernandes v/s. State of Maharastra and Ors. (Supra) wherein their Lordships held that the pardon so tendered is also a condition of his making a full and true disclosure of the whole circumstances within his knowledge relating to the offence and to every other person concerned, whether as principal or abettor... There is no provision in recording a preliminary statement of the person. The learned Advocate -General - further distinguished the principles laid down by their Lordships of the Supreme Court in the above -mentioned case and submitted that the said observations were made in a different context and were indeed in the nature of an obiter. The ultimate findings are given at the end of the judgment (Supra) that - - it is not for the special Judge to enter the ring as a veritable director of prosecution. The power which the special Judge exercised 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. It is for the State to express its desire that it 'needs' the approver's testimony. The prosecution, in the case referred to above, only joined with the -prayer for granting the prayer in the High Court. The next submission of the learned Advocate -General is that there is no bar in law to the principal offender being granted pardon under Sec. 337 of the Code of Criminal Procedure and that in any event the materials on record, in the instant case, do not establish for certain that the accused No. 2 is the principal offender, relative to the offence amongst the different accused persons. The third and last submission of Mr. Deb is that the findings arrived at by the learned Presidency Magistrate are not self -contradictory as alleged or at all but that in the first part of the order the learned Presidency Magistrate was only making his observations with regard to the application for pardon as was filed on July 11, 1968, and in that context he stated that the same disclosed nothing specific to show the nature of the evidence which the accused is likely to give nor the nature of his complicity nor the degree of his culpability in relation to the offence or in relation to every other person concerned. The ultimate findings forming the basis of the order under Sec. 337 of the Code of Criminal Procedure arc at the end, wherein on an appraisal of the documents and statements the learned Presidency Magistrate was satisfied that the same fulfilled the guiding principles laid down by the Courts for granting such pardon and that the nature of the approver's complicity and the degree of his culpability in relation to the offence and in relation to the co -accused or the nature of the evidence he was likely to give, did appear clearly therefrom.;