The Special Court Is Empowered To Take Cognizance Of An Offense Without The Proceedings Being Committed To It: State Through Central Bureau Of Investigation Vs Arul Kumar

DATE OF JUDGEMENT:
13th May, 2016

JUDGES:
Justices A.K. Sikri

PARTIES:
State through CBI (Appellant)
Arul Kumar (Respondent)

SUBJECT

The Supreme Court held that the Special Court can take cognizance of an offense without the case being committed to it and can subsequently entertain the tender of pardon. However, this special power does not bar the Metropolitan Magistrate from entertaining the tender of pardon.

OVERVIEW

1. An FIR was lodged against the respondent for dishonesty sanctioning 64 loans. Furthermore, it was alleged that the loans were sanctioned for inflated amounts.
2. During the investigation proceedings, five persons who were taken as approvers, filed for a tender of pardon which was granted by the Metropolitan Magistrate.
3. This decision was unsuccessfully challenged by the respondent before the Trial Court. The respondent thereby approached the High Court contending that the Metropolitan Magistrate had no authority to entertain the tender of pardon and it was only the Special Judge who could grant the pardon.
4. The High Court accepted the plea and quashed the grant of pardon, directing the appellants to initiate fresh action to get the pardon following the due procedure of law.
5. Aggrieved by such order, the appellant preferred an appeal before the Supreme Court.
6. The appellants contended that Section 306 confers the power of entertaining a tender of pardon on the Metropolitan Magistrate. Furthermore, the respondent contended that even if there were some irregularities in the proceedings, such irregularities, by virtue of Section 460(g) of the Criminal Procedure Code will not vitiate the proceedings conducted by the Metropolitan Magistrate.
7. The respondent, on the other hand contented, that the power to grant pardon, which is essentially a judicial power, could only be exercised in accordance with the provisions laid down by the Legislature. This power, as per the Prevention of Corruption Act, could only be exercised by a Special Judge and not by a Metropolitan Magistrate.

ISSUES

• Whether the Metropolitan Magistrate is empowered to entertain a tender of pardon under Section 306 of the Criminal Procedure Code or is it only the Special Judge who is empowered to entertain such a tender?

IMPORTANT PROVISIONS

Prevention of Corruption Act

• Section 5:Procedure and powers of special Judge.—(1) A special Judge may take cognizance of offences without the accused being committed to him for trial and, in trying the accused persons, shall follow the procedure prescribed by the Code of Criminal Procedure, 1973 (2 of 1974), for the trial of warrant cases by Magistrates.

(2) A special Judge may, with a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in, or privy to, an offence, tender a pardon to such person on 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, in the commission thereof and any pardon so tendered shall, for the purposes of sub-sections (1) to (5) of section 308 of the Code of Criminal Procedure, 1973 (2 of 1974), be deemed to have been tendered under section 307 of that Code.

(3) Save as provided in sub-section (1) or sub-section (2), the provisions of the Code of Criminal Procedure, 1973 (2 of 1974), shall, so far as they are not inconsistent with this Act, apply to the proceedings before a special Judge; and for the purposes of the said provisions, the Court of the special Judge shall be deemed to be a Court of Session and the person conducting a prosecution before a special Judge shall be deemed to be a public prosecutor.

(4) In particular and without prejudice to the generality of the provisions contained in sub-section (3), the provisions of sections 326 and 475 of the Code of Criminal Procedure, 1973 (2 of 1974), shall, so far as may be, apply to the proceedings before a special Judge and for the purposes of the said provisions, a special Judge shall be deemed to be a Magistrate.

(5) A special Judge may pass upon any person convicted by him any sentence authorised by law for the punishment of the offence of which such person is convicted.

(6) A special Judge, while trying an offence punishable under this Act, shall exercise all the powers and functions exercisable by a District Judge under the Criminal Law Amendment Ordinance, 1944 (Ordinance 38 of 1944).

ANALYSIS

1. The Court held that Section 306 unambiguously confers the power to entertain a tender of pardon on the Metropolitan Magistrate.
2. Furthermore, the Court held that such power can be exercised by the Metropolitan Magistrate even in those offenses which could be tried only by a Special Court.
3. The Court held that as per Section 307 of the Criminal Procedure Code, the grant of tender of pardon is restricted to the Special Court only after the case has been committed to the Special Court. However, before the case is committed to the Special Court, the Metropolitan Magistrate is within his authority to entertain the tender of pardon.
4. The Court further observed that under Section 5 of the Prevention of Corruption Act, the Special Judge is empowered to entertain a tender of pardon even where the case has not been committed to the Court.
5. However, Section does not bar the Metropolitan Magistrate from entertaining the tender of pardon

CONCLUSION

The Court has rightly held that both the Special Judge as well as the Metropolitan Magistrate have the power to entertain a tender of pardon. The mere fact that a Special power has been conferred on the Special Court Special does not bar the Metropolitan Magistrate from entertaining the same plea. Both the alternatives exist side by side.

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