Supreme court/ high court precedents u/s 308 ipc
nishant prateek
(Querist) 29 August 2011
This query is : Resolved
Please help me with supplying the precedents u/s 308 IPC.
ajay sethi
(Expert) 29 August 2011
Section 307 Cr.P.C. provides that at any time after commitment of a case but before judgment is passed, the Court to which the commitment is made may, with a view to obtaining at the trial the evidence of any person supposed to have been directly or indirectly concerned in, or privy to, any such offence, tender a pardon on the same condition to such person.
12. Section 308 provides for the trial of the approver who has accepted tender of pardon but fails to comply with the condition of pardon. The said provision reads as under:- “S. 308.- Trial of person not complying with conditions of pardon.
(1) Where, in regard to a person who has accepted a tender of pardon made under section 306 or section 307, the Public Prosecutor certifies that in his opinion such person has, either by willfully concealing anything essential or by giving false evidence, not complied with the condition on which the tender was made, such person may be tried for the offence in respect of which the pardon was so tendered or for any other offence of which he appears to have been guilty in connection with the same matter, and also for the offence of giving false evidence:
Provided that such person shall not be tried jointly with any of the other accused:
Provided further that such person shall not be tried for the offence of giving false evidence except with the sanction of the High Court, and nothing contained in section 195 or section 340 shall apply to that offence.
(2) Any statement made by such person accepting the tender of pardon and recorded by a Magistrate under section 164 or by a court under sub-section (4) of section 306 may be given in evidence against him at such trial.
(3) At such trial, the accused shall be entitled to plead that he has complied with the condition upon which such tender was made, in which case it shall be for the prosecution to prove that the condition has not been complied with.
(4) At such trial the court shall-
(a) if it is a Court of Session, before the charge is read out and explained to the accused;
(b) if it is the court of a Magistrate before the evidence of the witnesses for the prosecution is taken, ask the accused whether he pleads that he has complied with the conditions on which the tender of pardon was made.
(5) if the accused does so plead, the court shall record the plea and proceed with the trial and it shall, before passing judgment in the case, find whether or not the accused has complied with the conditions of the pardon, and, if it finds that he has so complied, it shall notwithstanding anything contained in this Code, pass judgment of acquittal.”
13. The salutary principle of tendering a pardon to an accomplice is to unravel the truth in a grave offence so that guilt of the other accused persons concerned in commission of 11 crime could be brought home. It has been repeatedly said by this Court that the object of Section 306 is to allow pardon in cases where heinous offence is alleged to have been committed by several persons so that with the aid of the evidence of the person granted pardon, the offence may be brought home to the rest. Section 306 Cr.P.C. empowers the Chief Judicial Magistrate or a Metropolitan Magistrate to tender a pardon to a person supposed to have been directly or indirectly concerned in or privy to an offence to which the section applies, at any stage of the investigation or inquiry or trial of the offence on condition of his making a full and true disclosure of the whole of the circumstances within his knowledge relative to the offence. The Magistrate of the first class, under Section 306, is also empowered to tender pardon to an accomplice at any stage of inquiry or trial but not at the stage of investigation on condition of his making full and true disclosure of the entire circumstances within his knowledge relative to the crime. Section 307 vests the court to which the commitment is made, with power to tender a pardon to an accomplice. The expression, ‘on the same condition’ occurring in Section 307, obviously refers to the condition indicated in sub-section (1) of Section 306, namely, on the accused making a full and true disclosure of the whole of the circumstances within his knowledge relative to the offence and to every other person concerned, whether as principal or abettor, in the commission thereof. An accomplice who has been granted pardon under Section 306 or 307 Cr.P.C. gets protection from prosecution. When he is called as a witness for the prosecution, he must comply with the condition of making a full and true disclosure of the whole of the circumstances within his knowledge concerning the offence and to every other person concerned, whether as principal or abettor, in the commission thereof and if he suppresses anything material and essential within his knowledge concerning the commission of crime or fails or refuses to comply with the condition on which the tender was made and the Public Prosecutor gives his certificate under Section 308 Cr.P.C. to that effect, the protection given to him is lifted.
14. In A.J. Peiris v. State of Madras1, a 3 - Judge Bench of this Court stated that the moment a pardon is tendered to the accused he must be presumed to have been discharged, whereupon he ceases to be an accused and becomes a witness.
15. In State v. Hiralal Girdharilal Kothari2, with reference to Sections 337 and 339 of the Code of Criminal Procedure, 1898 (now Sections 306, 307 and 308 Cr.P.C.), this Court stated that a pardon tendered under Section 337 is a protection from prosecution; failure to comply with the condition on which the pardon is tendered removes that protection.
16. In State (Delhi Administration) v. Jagjit Singh3, this Court held as under:-
“8. ……The power to grant pardon carries with it the right to impose a condition limiting the operation of such a pardon. Hence a pardoning power can attach any condition, precedent or subsequent so long as it is not illegal, immoral or impossible of performance. Section 306 clearly enjoins that the approver who was granted pardon had to comply with the condition of making a full and true disclosure of the whole of the circumstances within his knowledge relative to the offence and to every other concerned whether as principal or abettor, in the commission thereof. It is because of this mandate, the State cannot withdraw the pardon from the approver nor the approver can
1.AIR 1954 SC 616
2 AIR 1960 SC 360
3 1989 Supp (2) SCC 770
cast away the pardon granted to him till he is examined as a witness by the prosecution both in the Committing Court as well as in the trial court. The approver may have resiled from the statement made before the Magistrate in the Committing Court and may not have complied with the condition on which pardon was granted to him, still the prosecution has to examine him as a witness in the trial court. It is only when the Public Prosecutor certifies that the approver has not complied with the conditions on which the tender was made by wilfully concealing anything essential or by giving false evidence, he may be tried under Section 308 of the Code of Criminal Procedure not only for the offence in respect of which pardon was granted but also in respect of other offences……..”.
Raj Kumar Makkad
(Expert) 29 August 2011
Supreme Court of India
Sheetala Prasad & Ors. Vs. Sri Kant & Anr. on 17 December, 2009
Author: J Panchal
Bench: R.V. Raveendran, J.M. Panchal
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 2420 OF 2009
(Arising out of S.L.P. (Criminal) No. 3662 of 2007) Sheetala Prasad and others ... Appellants
Versus
Sri Kant and another
...Respondents
JUDGMENT
J.M. PANCHAL, J.
Leave granted.
2. This appeal is directed against judgment dated May 25, 2007, rendered by the learned single Judge of High Court of Judicature at Allahabad in Criminal Revision No. 5819 of 2006, by which the finding recorded by the learned Additional 2
Sessions Judge, Jaunpur in Sessions Trial Case No.271 of 2000, decided on September 7, 2006 that the appellants are not guilty under Section 308 IPC but are guilty under Section 324/149 IPC and are entitled to be released on probation of good conduct, is set aside and the case is remanded to the Court of learned Additional Sessions Judge with a direction to pass fresh order of conviction of the appellants in the light of observations made in the judgment and impose sentence on them in accordance with law.
3. The facts emerging from the record of the case are as under: -
The respondent No. 1, i.e., Kant Pandey, resides at village Tikara, District Jaunpur. On May 16, 1999, the appellants formed an unlawful assembly, common object of which was to cause injuries to Varun and Manoj, who are sons of Kant Pandey. At about 11.30 a.m., the appellants, in furtherance of their common object, assaulted Varun and Manoj who were ploughing their field with a tractor and caused injuries 3
to them and when Kant Pandey tried to save his sons, he was also assaulted and his licensed gun was broken. The First Information Report was lodged by Kant Pandey, on the basis of which investigation was conducted. At the conclusion of investigation, the appellants were charge-sheeted in the court of learned Magistrate for commission of offences punishable under Sections 147, 148, 308, 323, 325, 427, 504, 506 read with Section 149 IPC. As offence punishable under Section 308 IPC is exclusively triable by a Court of Sessions, the case was committed to the Court of Sessions, Jaunpur, for trial.
4. Since the appellants did not plead guilty, the prosecution examined seven witnesses to prove its case against the appellants. After evidence of the prosecution witnesses was over, the learned Additional Sessions Judge explained to the appellants the circumstances appearing against them in the evidence of prosecution witnesses and recorded their further statements under 4
Section 313 of the Code of Criminal Procedure, 1973. In their further statements, the case of the appellants was that of total denial. They also examined three witnesses in support of their defence.
5. On appreciation of evidence adduced by the parties, the learned Additional Sessions Judge held that no case for commission of offence punishable under Section 308 IPC was made out against the appellants, but it was proved by the prosecution that the appellants had committed offences punishable under Sections 148, 324 read with Section 149 IPC and Section 429 read with Section 149 IPC. Having regard to the age, character, antecedents of the appellants and to the circumstances in which the offences were committed, the learned Judge was of the opinion that it was expedient that the appellants should be released on probation of good conduct. Therefore, instead of sentencing them at once to any punishment, the learned Judge by judgment 5
dated September 7, 2006 directed release of the appellants on each of them entering into a bond for a sum of Rs.10,000/- with two sureties for the like amount to appear and receive sentence when called upon during the period of two years and in the meantime to keep the peace and be of good behaviour.
6. It is relevant to notice that neither the acquittal of the appellants under Section 308 IPC nor their release on probation after finding them guilty under Section 324 read with Section 149 IPC was challenged by the State of UP before the higher forum. However, acquittal of the appellants under Section 308 IPC and their release on probation after their conviction under Section 324 read with Section 149 IPC was made subject- matter of challenge before the High Court by the original informant by filing Criminal Revision No. 5819 of 2006.
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7. The learned Single Judge, who heard the revision application, appreciated the evidence on record and prima facie came to the conclusion that offence punishable under Section 308 read with Section 149 IPC, was made out against the appellants. The learned Single Judge arrived at a firm finding that in view of the injuries sustained by Varun and the first informant, the appellants could not have been convicted under Section 324 IPC with the aid of Section 149 and, therefore, the conviction of the appellants under Section 324 read with Section 149 IPC and direction to release them on probation, were liable to be set aside. In view of these findings, the learned Single Judge, by the impugned judgment, has confirmed the finding recorded by the learned Additional Sessions Judge that the appellants are guilty but thereafter has set aside the acquittal of the appellants under Section 308 IPC as well as their conviction under Section 324 read with Section 149 IPC and also the direction to release 7
them on probation. The learned Judge has further remitted the matter to the Court of learned Additional Sessions Judge, Jaunpur to pass fresh order of conviction and sentence on the appellants, keeping in view the observations made in the body of the judgment. Having regard to the facts of the case, this Court feels that the finding recorded and directions given by the High Court should be reproduced verbatim, which read as under: -
"Consequently, this revision is hereby allowed. Those findings of impugned judgment, whereby the accused- respondents have been found guilty, are upheld, but the finding recorded in para 32 thereof with regard to the offence under Section 308 IPC as well as the conviction of the accused-respondents under Section 324/149 IPC and order of releasing them on probation of good conduct are hereby set aside.
Session Trial No.271 of 2000 is sent back to the Court of Additional Sessions Judge/Special Judge (E.C. Act), Jaunpur, who is directed to pass fresh order of conviction and sentence of the accused- respondents in accordance with law, keeping in view the observations made in the body of this judgment."
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The above finding and directions have given rise to the instant appeal.
8. This Court has heard the learned counsel for the parties at length and considered the evidence forming part of the record.
9. The High Court was exercising the revisional jurisdiction at the instance of a private complainant and, therefore, it is necessary to notice the principles on which such revisional jurisdiction can be exercised. Sub-Section (3) of Section 401 of Code of Criminal Procedure prohibits conversion of a finding of acquittal into one of conviction. Without making the categories exhaustive, revisional jurisdiction can be exercised by the High Court at the instance of private complainant (1) where the trial court has wrongly shut out evidence which the prosecution wished to produce, (2) where the admissible evidence is wrongly brushed aside as inadmissible, (3) where the trial court has no 9
jurisdiction to try the case and has still acquitted the accused, (4) where the material evidence has been overlooked either by the trial court or the appellate court or the order is passed by considering irrelevant evidence and (5) where the acquittal is based on the compounding of the offence which is invalid under the law. By now, it is well settled that the revisional jurisdiction, when invoked by a private complainant against an order of acquittal, cannot be exercised lightly and that it can be exercised only in exceptional cases where the interest of public justice require interference for correction of manifest illegality or the prevention of gross miscarriage of justice. In these cases, or cases of similar nature, retrial or rehearing of the appeal may be ordered.
10. Applying the above stated principles to the facts of the case on hand, this Court finds that after discussing medical evidence and evidence of injured witness in great detail the High Court has prima facie come to the conclusion that case 10
under Section 308 IPC is made out against the appellants. Such a conclusion could have been recorded only in a properly constituted appeal, filed by the State Government. The High Court has further concluded that no offence punishable under Section 324 IPC is committed by the appellants. This finding could have been recorded only in an appeal filed by the appellants. In the face of prohibition contained in Section 401(3) of the Code of Criminal Procedure, it was all the more incumbent upon the High Court to see that it does not convert the finding of acquittal into one of conviction by the indirect method. Further, the matter is remitted to the learned Additional Sessions Judge for the purpose of passing fresh order of conviction and imposition of sentence on the appellants in the light of what is observed in the impugned judgment. In the impugned judgment, the High Court has concluded that the appellants are guilty under Section 308 read with Section 149 11
IPC and not under Section 324 read with Section 149 IPC. Therefore, on remand the Trial Court is left with no judicial discretion but to convict the appellants under Section 308 read with Section 149 IPC and impose punishment on them. Normally, when High Court decides to interfere with the judgment of the Trial Court in exercise of revisional jurisdiction, the retrial of the case is ordered based on certain well settled principles. However, after recording guilt of an accused under particular provision of Indian Penal Code, the matter could not have been remitted to the Sessions Court for passing appropriate order of conviction and punishment.
11. On the facts and in the circumstances of the case, this Court is of the view that the High Court has exercised revisional jurisdiction with material illegality and irregularity resulting into miscarriage of justice to the appellants and, therefore, the appeal deserves to be allowed. 12
12. For the reasons stated in the judgment, the appeal succeeds. The judgment dated May 25, 2007, rendered by the learned Single Judge of the High Court of Judicature at Allahabad in Criminal Revision No. 5819 of 2006 remanding the case to the Court of learned Sessions Judge for passing proper order of conviction of the appellants and imposing punishment on them is hereby set aside.
13. The judgment dated September 7, 2006, delivered by the learned Additional Sessions Judge, Jaunpur in Sessions Trial Case No. 271 of 2000 convicting the appellants under Sections 148, 342 read with Section 149 and Section 427 read with Section 149 IPC and directing their release on probation for a period of two years is restored. ..............................J.
[R.V. Raveendran]
..............................J.
[J.M. Panchal]
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New Delhi;
December 17, 2009.
girish shringi
(Expert) 31 August 2011
EXCELLENT EXPLANATION BY EXPERTS.
