- In Suresh Raj vs National Investigation Agency the Hon’ble Kerala HC has observed that the Special Court constituted under the National Investigation Agency Act can invoke the powers under section 306 CrPC to grant pardon to an accused at the post cognizance stage.
- The Court also observed that the person to whom the pardon is to be tendered does not necessarily need to be an accused, and the fact that the persons to whom the pardon is generally being granted is generally an accused does not indicate that such person should always be named as an accused in the case.
- In the instant case, a Srilankan fishboat with huge quantities of narcotics, AK-47 rifles and ammunition was seized by the NCB (Narcotics Control Bureau). A case was registered against the six Srilankan nationals found on board and they were then arrested. However, in the interrogation it was found that one of the persons, who was the appellant in the present case, was a member of the LTTE organisation (Liberation Tigers of Tamil Eelam), and he was soon arrested.
- The statements of the accused were taken under section 164 CrPC. The NIA later filed an application seeking a tender of pardon to certain persons who were neither named as an accused, nor as witnesses in the final report. The NIA Court took cognizance of the case and allowed the application filed by the NIA. The appellant thus moved the HC challenging the same.
- The argument advanced by the appellant was that an application seeking the grant of pardon at the pre cognizance stage can only be forwarded to the CJM under section 306 CrPC, and the Special Court seriously erred in considering the application under section 307 CrPC, after filing of the final report and the Special Court taking cognizance of the offence.
- It was also argued that the Special Court constituted under the NIA Act is a Court of Session for all intents and purposes, according to section 16(3) of the same. Thus an application filed under section 306 CrPC at the stage of investigation, cannot be taken up by the Special Judge at the post cognizance stage to pass orders under section 307 CrPC.
- The Counsel for the appellant also submitted that since the Special Court has not taken cognizance against the concerned accused 3, 8 and 14, and has not issued summons against them, the application could not be entertained by the Court.
- The Hon’ble HC observed that after a perusal of Sections 306 and 307 CrPC it becomes clear that as far as offences which are triable exclusively by the Court of Sessions or Special Court are concerned, the power under section 306 CrPC are to be exercised at the pre-committal stage, whereas the power under section 307 CrPC are to be exercised at the post committal stage,
- Referring to the case of Bangaru Laxman vs State (through CBI) and ors (2012) SCC the Court observed that in case of a Special Court, there is a coalescence of the powers of both the Magistrate and the Special Judge. Thus, uninfluenced by the stage of investigation, inquiry or trial, a Special Court can entertain an application for grant of pardon since it has the powers under section 306 and 307 both. Thus, it could not be argued that the application for the grant of pardon preferred at the stage of investigation cannot be considered by the Special Judge.
- As regards the argument advanced by the appellant that the pardon cannot be granted to a person not arraigned as an accused in the final report, the Court observed that the words used in sections 306 and 307 are “any person supposed to have been directly or indirectly concerned in or privy to an offence..”, thus the person to whom a pardon is to be tendered need not necessarily be an accused, as has also been held by the Hon’ble Apex Court in Commander Pascal Fernandes’s case.
- Thus, the appeal was rejected.
"Loved reading this piece by Shweta?
Join LAWyersClubIndia's network for daily News Updates, Judgment Summaries, Articles, Forum Threads, Online Law Courses, and MUCH MORE!!"
Join LAWyersClubIndia's network for daily News Updates, Judgment Summaries, Articles, Forum Threads, Online Law Courses, and MUCH MORE!!"
