(1.) This Criminal Application filed under Section 482 of the Code of Criminal Procedure, 1973 [for short, "the Code"] at the instance of Accused No.1 takes exception to the order dated 13th July, 2012 passed by the learned Judge of the Special Court granting pardon to the Accused No.2 in exercise of powers under Section 307 of the Code.
(2.) The Applicant and Non-applicant no.2 are facing trial with regard to offence punishable under provisions of the Prevention of Corruption Act, 1988. During pendency of the trial, the Non-applicant No.2 moved an application seeking grant of pardon under Section 307 of the Code by undertaking to make a full and true disclosure of the circumstances within his knowledge relating to the offence. This application was initially forwarded to the Anti-corruption Bureau and the Accused No.2 was directed to submit the same before the Special Court. After the same was done, the Accused No.1 filed a reply and opposed the prayer made therein. The Accused No.1 moved a separate application under Section 307 of the Code also seeking pardon. This application was opposed by the prosecution and by a common order dated 3rd January, 2011, the learned Judge of the Special Court rejected both the applications. In so far as Accused No.2 is concerned, it was observed that his evidence as an approver was not found to be absolutely essential for successful prosecution. In so far as Accused No.1 is concerned, the Special Court refused to grant pardon.
(3.) Shri H. D. Dangre, learned counsel for the Accused No.1, submitted that the earlier application moved by the Accused No.2 having been rejected and in absence of any fresh material or additional facts being available, the subsequent application seeking a similar relief was not maintainable. Relying upon the judgments of Honourable Supreme Court in [1] Commander Pascal Fernandes \ State of Maharashtra & others, 1968 CrLJ 550 and [2] State of U.P. Vs. Kailash Nath Agarwal & others, 1973 CrLJ 1196, it was submitted that a fresh application for tender of pardon was maintainable after rejection of the earlier application only if fresh or additional facts are brought on record by the party concerned. Referring to the communications dated 24th February, 2011, 19th April, 2011 and 28th April, 2011 that were issued by the Prosecution authorities after rejection of the first application, it was submitted that except a similar request being made by the Prosecution, there was nothing new or additional that could enable the Special Court to consider the fresh application for grant of pardon. It was then submitted that fresh or additional facts should be relatable to the crime in question and not based purely on exchange of subsequent communications. Without considering this aspect of the matter, the subsequent application was entertained and allowed. It was further urged that pardon ought to have been granted to the Accused No.1 instead of Accused No.2, inasmuch as the Accused No.2 was the main culprit and not Accused No.1. It was, thus, submitted that the impugned order granting pardon to Accused No.2 deserves to be set aside.