Amal Kumar Chatterjee, J. - (1.) The petitioner is an accused in a bank dacoity case along with opposite parties 2 to 6 and they are facing a trial in the court of a learned Additional Sessions Judge at Alipore before whom the petitioner made an application under section 307, Cr.P.C. for tendering him pardon and to treat him as an approver in the case. This prayer was opposed on behalf of the co-accused persons who, as already mentioned, are opposite parties 2 to 6 in this revisional application. The State supported the prayer of the petitioner which, however, did not find favour with the learned judge who rejected the same on two grounds. In the first place, the learned judge pointed out that there was no dearth of evidence to incriminate the co-accused persons and secondly the intention of the petitioner to turn an approver was not voluntary but it was as a result of an allurement because, it was submitted on behalf of the prosecution, that it would not oppose the prayer of the petitioner to grant him bail although it would not concede to similar prayer so for as the co-accused persons were concerned.
(2.) Now to take up the later ground first, it is seen that although on the 20th May, 1988, when the petitioner made the application under section 307, Cr.P.C., he was in jail custody but subsequently on the 15th June, 1988, he was granted bail by the High Court. Even after he was admitted to bail he filed this revisional application on the 8th December, 1988 against the impugned order rejecting his prayer to tender him pardon. In such situation it cannot be said that any allurement was held out to the petitioner to induce him to turn an approver. Therefore his prayer for granting him pardon under section 307, Cr.P.C. cannot be turned down on this ground.
(3.) The learned advocate for the petitioner has then contended that the learned judge was wrong in rejecting the prayer of the petitioner because of availability of other incriminating evidence against the co-accused persons. It has been contended that availability of other evidence is no consideration to reject a prayer made under section 307, Code of Criminal Procedure and in support of this contention, the decision of Bombay High Court in Maosi Nainsi Jain & Ors. v. State of Maharashtra, 1985 Cr LJ 1818 has been cited. In that case, it appears, that the State made an application before a trying Magistrate alleging that one of the accused person was directly connected with the alleged offences and as such his evidence was necessary for adjudication of the matter and he should be granted pardon as provided under section 306, Code of Criminal Procedure. The learned Magistrate rejected this application but on a revisional application filed by the State before a learned Additional Sessions Judge, the order passed by the learned Magistrate was reversed and the accused in question was granted pardon. The order passed by the learned Additional Sessions Judge was challenged before the High Court by some of the accused persons and on their behalf a decision of the Himachal Pradesh High Court in Ram Chand v. State, 1952 Cr LJ 1339 was cited, wherein it was observed that in tendering pardon to one of the accused, court cannot be said to have exercised a sound discretion if besides the approver, there were several eye witnesses to the crime who had given evidence. The learned Judge of Bombay High Court observed that this case gave only some of the factors which the court before whom the application under section 306, Cr.P.C. is made, should bear in mind while exercising the discretion for granting or refusing pardon asked for by the prosecution. The learned Judge further observed that these factors were neither condition precedent nor pre-requisite for exercise of discretion and those were also not ingredients contemplated by the wordings of section 306, Cr.P.C. The learned Judge has also held that availability of other evidence and in abundance is no criteria by itself to reject the application. In answer to this contention the learned advocate for opposite parties 2 to 6 has cited three decisions of different High Court including Ram Chand's case (supra) which, according to the Bombay High Court, as already pointed out, only gave some of the factors which the court should bear in mind in exercising the discretion for granting or refusing pardon. The other two cases cited on behalf of the aforesaid opposite parties were Kashinath v. State of Mysore, (1963)1 Cr LJ 547 and Provat Ranjan Sarkar & Ors. v. The State of Bihar, 1974 Cr LJ 957. In the former of these two cases, it was held that in exercising the judicial discretion to tender pardon the court should proceed with great caution and on sufficient grounds because the grant of pardon involves the risk of allowing an offender to escape punishment at the expense of his co-accused. This decision was also considered by Bombay High Court in Maosi Nainsi's case (supra), in which the learned Judge apparently took the view that this case also laid down only some of the factors to which the court should apply its mind in the matter of granting or refusing pardon. The learned advocate for opposite parties 2 to 6, however, has heavily relied upon the certain observation in Provat Ranjan Sarkar's case (supra) at paragraph 5 of the judgment to the effect that a Magistrate may be compelled to tender pardon to any person on the ground that it was impossible for the prosecution to prove the case in the absence of the evidence of the approver. A reference to this judgment would show that in the paragraph aforesaid His Lordship was only seised with the question whether the Magistrate should record reason while granting pardon and the considerations which should weigh with the court in granting or refusing pardon was not in issue before the learned Judge. This decision, therefore, does not support any general proposition that impossibility for the prosecution to prove its case save by the evidence of the approver is the only compelling reason to grant pardon. Therefore none of the three cases cited on behalf of the opposite parties 2 to 6 can be regarded as an authority for the rule that no pardon can be granted if other evidence was available to incriminate the co-accused persons. The learned court below has also relied upon the decision in Kashinath's case (supra) and also in Ram Chand's case (supra) to come to a finding that the primary consideration was whether in the absence of the evidence of the approver the other accused persons would go scot free and evade punishment. In view of what has been stated above this finding cannot be sustained.;