http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 9  

PETITIONER: LT.  COMMANDER   PASCAL FERNANDES

       Vs.

RESPONDENT: THE STATE OF MAHARASHTRA & OTHERS

DATE OF JUDGMENT: 28/09/1967

BENCH: HIDAYATULLAH, M. BENCH: HIDAYATULLAH, M. BHARGAVA, VISHISHTHA VAIDYIALINGAM, C.A.

CITATION:  1968 AIR  594            1968 SCR  (1) 695

ACT: Criminal  Law  Amendment  Act  (46 of  1952),  s.  8(2)  and Criminal  Procedure Code (Act 5 of 1898), ss. 337  and  338- Power  to tender pardon under Criminal Law Amendment  Act-If exercisable  only  on  the  application  of   prosecution-If governed  by  s. 540, Cr.  P.C.--Matters  to  be  considered before tendering pardon.

HEADNOTE: Three superior Government officers, an upper division  clerk and  four others were being tried before the Special  Judge, appointed  under  s. 6 of the Criminal  Law  Amendment  Act, 1952,  for  various offences including  criminal  misconduct under  s.5  (2) of the Prevention of Corruption  Act,  1947. The  clerk  applied to the Court praying that he  should  be made an approver and examined as a prosecution witness.  The application  was  opposed  by the other  coaccused  but  the Special  Judge,  acting under s. 8(2) of  the  Criminal  Law Amendment  Act,  tendered a conditional pardon  to  him  and ordered  that  he  should be examined  as  an  approver  and witness for the prosecution.  The appellant, who was one  of the co-accused, filed a revision in the High Court.  In  the High Court, the prosecution stated that it had no  objection to  the  grant  of  pardon to the clerk  and  that  it  even welcomed  it.  The High Court thereupon confirmed the  order of the Special Judge. In appeal to this Court, the appellant contended that :  (1) differences between ss. 337 and 338 Cr.  P. C., and s.  8(2) of  the Criminal Law Amendment Act, show that the powers  of the  Special Judge, in tendering- pardon under s. 8(2),  are limited to an application by the prosecution in that  behalf and  that the Special Judge could not act suo motu; (2)  the powers of the Special Judge under s. 8(2) are  circumscribed by  the considerations that underlie s. 540 Cr.  P. C..  and that  therefore he could not acquit one accused so as to  be able  to convict another; and (3) the Special Judge had  not exercised his discretion judicially and properly. Held:     (1)  Under  s. 7(1) and (3) of  the  Criminal  Law Amendment  Act,  notwithstanding anything contained  in  the Criminal  Procedure Code, the offences under ss. 161 or  165 or 165A I.P.C., and s. 5(2) of the Prevention of  Corruption

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 9  

Act,  1947,  shall  be  tried  only  by  a  Special   Judge. Therefore,  in the case of an offence under s. 5(2)  of  the Prevention  of  Corruption Act, under s. 337(1)  Cr.P.C.,  a Magistrate,  with  a view to obtaining the evidence  of  any person   supposed  to  have  been  directly  or   indirectly concerned  In or privy to an offence, may tender  pardon  to him; but when that person has accepted the tender of  pardon and has been examined under s, 337(2), the Magistrate  must, without  making  any further enquiry send the  case  to  the Special Judge for trial under s. 337(2B).  The provisions of s.  337(1)  thus  apply at the  stage  of  investigation  or inquiry  before the case reaches the Special  Judge.   When- there is no such tender of pardon to any one, the case shall be forwarded for trial, to the Special Judge and his  powers commence after he 696 has  taken cognizance of the case and are available  to  him throughout the trial.  When the case is before him, a tender of  pardon can only be by him.  But where the  offences  are other  than  those under ss. 161, 165, 165A, I.P.C.  and  S. 5(2) Prevention of Corruption Act, when there is a committal by the Magistrate under S. 337(2A), S. 338 Cr.P.C.  provides that  the court to which commitment is made could  not  only tender  pardon itself, but could also order  the  committing Magistrate or District Magistrate to do so.  Such a power is not  available  to the Special Judge, because, there  is  no commitment when he takes cognizance.  These differences,  in the  powers of the Special Judge and the courts  constituted under the Criminal Procedure Code do not, however, show that the  powers of the Special Judge could only be exercised  if the  prosecution  moved first.  On the  contrary,  there  is nothing  in  the language of the section to  show  that  the Special Judge must be moved by the prosecution.  The section is enabling and its terms are wide-.  Therefore, the Special Judge  may consider an offer by one of the accused  to  turn approver. [701 F-G; 703 B-E, H; 704 A]. (2)  Section  540, Cr.P.C., confers powers on the  court  to summon  material  witnesses at any stage of any  inquiry  or trial   or   other   proceeding   under   the   Code.    The considerations for summoning persons as court witnesses  are different  from  the  considerations on which  a  tender  of pardon  is made.  It is not, therefore, possible to read  S. 540 either with ss. 337 and 338, Cr.  P.C., or with s.  8(2) of the Criminal Law Amendment Act. [704 B-D]. (3)  Ordinarily,  it  is for the prosecution to ask  that  a particular  accused out of several may be  tendered  pardon. But  when  the accused applies directly, the  Special  Judge must  first refer the request to the  prosecution,  because, the State may not need an approver’s testimony and therefore may  not desire that any accused should be pardoned; or,  it may not like the tender of pardon to the particular  accused who  may  be  the  worst, offender.  It  is  only  when  the prosecution  joins  in the request that  the  Special  Judge should  exercise his powers.  In exercising his  discretion, the  Special Judge must bear in mind that the  interests  of the   accused  are  just  as  important  as  those  of   the prosecution,  and  no  procedure or action  can  be  in  the interest  of  justice if it is prejudicial  to  an  accused. Also,  before he tenders pardon he must, know the nature  of the evidence that the person seeking the pardon is likely to give,  the  nature of his complicity and the degree  of  his culpability  in  relation to the offence and the  other  co- Accused.  In this case, the Special Judge made no effort  to find out what the applicant had to disclose.  But since  the Public  Prosecutor  stated  in  the  High  Court  that   the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 9  

prosecution also considered favourably the tender of  pardon to  the applicant, this Court would not interfere  with  the order of the High Court. [704 D-E, H; 705 B-F]. Reg, v. Robert Dunne, 5 Cox Cr.  Cases 507, referred to.

JUDGMENT: CRIMINAL  APPELLATE JuRISDICTION Criminal Appeal No. 148  of 1967. Appeal  by special leave from the judgment and  order  dated July 20, 1967 of the Bombay High Court in Criminal  Revision Application No. 439 of 1967. J.   C. Bhatt, and B. R. Agarwala, for the appellant. H.   R. Khanna and R. N. Sachthey, for respondent No. 1.                             697 A.K. Sen, Bishamber Lal and H.K. Puri, for respondent No. 8. The Judgment of the Court was delivered by Hidayatullah, J.--This is an appeal by special leave against an  order  of the High Court of Bombay dated July  20,  1967 dismissing  a  criminal revision application  filed  by  the appellant  against  an order of the  Special  Judge,  Bombay tendering  pardon  to a co-accused under sec.  8(2)  of  the Criminal Law Amendment Act of 1952.  The appellant is  being tried  before  the Special Judge, Bombay  along  with  seven others  for  conspiracy to cheat the officers of  the  Naval Dockyard  and under s. 5(2) of the Prevention of  Corruption Act,  1947.   The substantive charges  against  the  several accused  are  different but it is not necessary  to  mention them  here.  The gist of the accusation is that the  several accused  had entered into criminal conspiracy to  cheat  the authorities  of  the  Naval  Dockyard.   Material  purchased locally  was  certified to be of superior quality  while  it was,  in  fact, inferior.  In this and in diverse  ways  the Naval  Dockyard Authorities were cheated to the tune of  Rs. 3,65,000  and  odd.  Among the array of the accused  in  the case  are  three contractors (accused Nos. 5, 6 and  7)  and their servant (accused No. 8), and four Government  servants of  whom accused No. 1 is the appellant before us.   Of  the remaining three Government servants, accused No. 4 (M.   ’M. Jagasia)  was  an Upper Division Clerk  working  as   Office Supdt. at the material time drawing a salary of Rs. 200  per month.  Against Jagasia there is yet another charge, namely, that he is in possession of property disproportionate to his known sources of income which fact, if proved. is likely  to lead  to  a presumption under the Prevention  of  Corruption Act.   Evidence  has  already  been  accumulated,  which  is calculated to show that he is. in possession of three  motor cars,  a building valued at Rs. 28,000 and odd and  currency notes in a locker of the value of Rs. 16,400 in addition  to gold and other ornaments and his bank balance. The  case appears to have been previously before Mr.  R.  K. Joshi,  Special Judge, Greater Bombay and he framed  charges against  the accused in the case, on the basis  of  material furnished by the prosecution under the provisions of s.  173 of  the  Code  of Criminal Procedure.  The  case  then  went before  the  present Special Judge, Mr. N.  M.  Indurkar.The case was fixed for trial from April 24, 1967.  On April  20. 1967, Jagasia made an application to the Court praying  that he  should  be  tendered pardon and  made  an  approver  and examined  as  a prosecution witness.  The  reason  given  by Jagasia  was that he had full and complete knowledge of  all that   had  taken  place  between  the  officers   and   the contractors  and that he was in a position to  disclose  how the   conspiracy  was  formed  and  the   several   offences

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 9  

committed.  He said that he was making this offer "in  order to  unburden  the mental tension and in order  to  help  the cause of justice".  He, also 698 stated that he had not been given any threat, promise or any inducement by any police officer and that he was making  the application voluntarily. The  application of Jagasia was stoutly opposed by  his  co- accused,  particularly  the  appellant before  us.   It  was contended  on  his  behalf that the granting  of  pardon  to secure   evidence,  whether  under  the  Code  of   Criminal Procedure  or  under s. 8(2) of the Criminal  Law  Amendment Act,  1952, was essentially for the prosecution to  consider in the first instance; that the application being made after the  framing of the charges was not legally  tenable-,  that the  prosecution considered the evidence sufficient for  the successful prosecution of all the accused including  Jagasia himself-, that the evidence against Jagasia was likely to be fortified  by  the  presumption  under  the  Prevention   of Corruption Act and that the grant of pardon to him would  be an  act  of  favour to him and  highly  prejudicial  to  the defence  of  other  accused.   The  Special  Judge,  Greater Bombay,  after  hearing  arguments  tendered  a  conditional pardon  to Jagasia and ordered that he shall be examined  as an approver and witness for the prosecution.  Simultaneously the  learned  Judge  ordered  that  Jagasia’s  statement  be recorded  by  the police under S. 162(161) of  the  Code  of Criminal Procedure and copies thereof supplied to the  other accused in good time before the hearing next started. The  appellant herein filed revision in the High  Court  and urged  the  same grounds which we have set out  above.   The prosecution  in  the  High  Court  stated  that  it  had  no objection  to the grant of pardon and that it even  welcomed the  opportunity  of  having the evidence  of  an  approver, through  tender of conditional pardon to Jagasia.  The  High Court,  after hearing the arguments, passed the  order,  now under appeal,’ upholding the tender of conditional offer  of pardon to Jagasia. In  this appeal Mr. J. C. Bhatt contends that the powers  of the  Special Judge in tendering conditional pardon under  s. 8(2)  of  the Criminal Law Amendment Act are limited  to  an application  by  the  prosecution in  that  behalf  and  the Special  Judge cannot act suo motu without being invited  by the  prosecution to consider the tender of pardon to one  of the accused before him.  Mr. A. K. Sen in supplementing  the arguments  on  behalf of one of  the  respondent  co-accused further  urged  that  the powers of  the  Special  Judge  in securing   additional   evidence   are   circumscribed    by considerations  that  underlie  s.  540  of  the  Code   and therefore  he can act in the interests of justice  only  and not  with  a view to granting an acquittal to  one  of  the, accused  so  as  to be able to convict  another.   Both  the learned  counsel  also  urge that in the  present  case  the discretion,  if any, vested, in the Special Judge  under  s. 8(2)  of  the  Criminal  Law  Amendment  Act  has  not  been judicially  or  even properly exercised.  On behalf  of  the State,  Mr.  H. R. Khanna contends that the  powers  of  the Special  Judge to grant pardon ire untrammeled and that  the sections                             699 both in the Code and in the Criminal Law Amendment Act bear- ing  upon  the  tender of pardon with  a  view  to  securing evidence are not conditioned by any of the considerations on which  learned  Counsel  on the other side  rely.   He  also submits  that the discretion is properly  exercised  because

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 9  

Jagasia  is  an  insignificant  person  compared  with   the contractors  and the superior ’Officers and they are  mainly responsible  for  defrauding the Government of much  of  the money alleged by the prosecution. Before we discuss the validity or propriety of the tender of pardon  to Jagasia we shall refer briefly to  the  statutory provisions  on  the subject of the tender  of  pardon.   The topic of tender of pardon to an accomplice is treated in the twenty-fourth  chapter  of the Code as part of  the  general provisions as to inquiries and trials.  Sections 337 to  339 and 339A contain all the provisions which refer to courts of criminal  jurisdiction  established  under  the  Code.   The Special Judge created under the Criminal Law Amendment  Act, 1952  (Act  46 of 1952) is not one of them.  For  the  cases triable  by Special Judges under the Criminal Law  Amendment Act  a special provision is to be found in S. 8(2)  of  that Act,  for tender of pardon to an accomplice, as part of  the procedure and powers of Special Judges.  The section is  set out  below*.  The second sub-section necessarily differs  in some  respects from the provisions of the Code  because  the procedure  of trial before the Special Judge  is  different, but  on  the  tender  of pardon by  the  Special  Judge  the provisions  of  ss.  339 and 339A of the  Code  apply.   The tender  of pardon by the Special Judge is deemed by  fiction to be one tendered under s. 338 of the Code for *"8.   Procedure and powers of special judges-(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, 1898 (Act V of 1898), 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  sections 339 and 339A  of  ’the  Code  of Criminal  Procedure, 1898, be deemed to have  been  tendered under section 338 of that Code. (3)  Save as provided in sub-section (1) or sub-section (2), the  provisions  of  the Code of  Criminal  Procedure,  1898 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 trying  cases without  a  jury  or without the aid of  assessors  and  the person conducting a prosecution before a special judge shall be deemed to be a public prosecutor. (4) 700 Purposes of sections 339 and 339A.  That section is set  out below**. Mr. J. C. Bhatt contends on the basis of differences between s.  8(2) of Act 46 of 1952 and ss. 337 and 338 of  the  Code that  the powers of the Special Judge are different and  can only be exercised if the prosecution moves first.  We  shall consider  if  the differences such as they are lead  to  any such  conclusion.  To begin with it may be noticed that  the action of the Special Judge is deemed to be action under  s. 338 of the Code for purposes of ss, 339 and 339A which apply equally.   It is not necessary to refer to ss. 339 and  339A in detail.  The former provides that where a pardon has been

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 9  

tendered  under  s.  337 or 538 and  the  Public  Prosecutor certifies  that the person who accepted it has not  wilfully complied  with the conditions, the person may be  tried  for the  offence for which pardon was tendered but  not  jointly with the co-accused and  the prosecution must in that  trial prove that the conditions     had  not been  complied  with. The statement made by the person   may   be   tendered    in evidence against him but a prosecution for   the offence  of giving  false  evidence  in respect  of  such  statement  is entertainable only with the High Court’s sanction.   Section 339A lays down the procedure for trial.  The sections  being applicable  equally to tender of pardon under the  Code  and under  the Criminal Law Amendment Act, no inference  can  be drawn as suggested. We  next proceed to consider the differences between s.  338 of the Code and s. 8 (2) of the Criminal Law Amendment  Act. The fiction in the latter part of s. 8(2) is only this  that the tender of pardon is to be deemed to be one under s.  338 for purposes of applying ss. 339 and 339A.  The whole,of  s. 338  is not applicable.  The power to order  the  Committing Magistrate  or the District Magistrate to tender  pardon  is not available to the Special Judge because the fiction  does not cover that part of s. 338.  Similarly, the opening words of   s.  338  "at  any  time  after  the   commitment"   are inappropriate to trials before Special Judges because  there is  no  commitment.  It is obvious that the  powers  of  the Special Judge commence only after he has taken cognizance of the  case,  and they are available to’  him  throughout  the trial.  No conclusion such as is suggested by counsel can be drawn. We  may now proceed to consider the differences  between  s. 337  and s. 8(2).  To do this we must look at some  sections of  the  Criminal  Law Amendment Act.   Special  Judges  are appointed by **"338.  Power to direct tender of pardon--At any time after commitment,  but  before judgment is passed,  the  Court  to which the commitment is made may, with the view of obtaining on  the  trial the evidence of any person supposed  to  have been  directly or indirectly concerned in, or privy to,  any such offence, tender, or order the committing Magistrate  or the  District  Magistrate to tender, a pardon  on  the  same condition to such person."                             701 the State Governments under s. 6 of the Criminal Law  Amend- ment Act to try the following offences, namely:-               (a)   an  offence  punishable  under  S.  161,               section 1 or section 165A of the Indian  Penal               Code  (Act XLV of 1860) or sub-section (2)  of               section 5 of the Prevention of Corruption Act,               1947 (11 of 1947);               (b)   any conspiracy to commit or any  attempt               to  commit  or  any abetment  of  any  of  the               offences specified in clause (a). Sub-section  (1) of s. 337 provides that "in the case of  an offence  triable exclusively by the High Court or  Court  of Session  or any offence punishable with  imprisonment  which may extend to seven years or any offence under ss. 161, 165, 165A,... the District Magistrate, a Presidency Magistrate, a Sub-divisional  Magistrate  or any Magistrate of  the  first class may, at any stage of the investigation or inquiry into or  trial  of  the offence, with a  view  to  obtaining  the evidence  of  any person supposed to have been  directly  or indirectly  concerned in or privy to the offence,  tender  a pardon to such person on condition of his making a full  and true disclosure of the whole circumstances within his  know-

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 9  

ledge  relative  to the offence and to  every  other  person concerned,   whether  as  principal  or  abettor,   in   the commission  thereof".   The  proviso  makes  provision   for situations where the offence is under enquiry or trial.  The section  applies when the offence is not before the  Special Judge for trial.  This will appear presently.  The remaining sub-sections  ’of s. 337 are procedural.   Sub-section  (1A) enjoins  the recording of reasons for tendering  pardon  and the  giving  of  a copy on payment or free of  cost  to  the accused.   Subsection (2) lays down that a person  accepting pardon  shall be examined as a witness in the Court  of  the Magistrate  taking  cognizance  of the offence  and  in  the subsequent trial, if any.  Sub-section (2A) requires that if the  Magistrate  has reason to believe that the  accused  is guilty of an offence, the accused shall be committed to  the Court  of Session’ Sub-section (2B) is an exception to  sub- section (2A).  It provides:               "(2B)  In  every  case where  the  offence  is               punishable under section 161 or section 165 or               section 165A of the Indian Penal Code or  sub-               section (2) of section 5 of the Prevention  of               Corruption  Act, 1947, and where a person  has               accepted  a tender of pardon and has been  ex-               amined    under   sub-section    (2),    then,               notwithstanding  anything  contained  in  sub-               section  (2A),  a, Magistrate  shall,  without               making any further inquiry, send the case  for               trial  to  the  Court  of  the  Special  Judge               appointed  under  the Criminal  Law  Amendment               Act, 1952." 702 Pausing here it may be mentioned that s. 7(1) and (3) of the Criminal Law Amendment Act require that notwithstanding any- thing contained in the Code of Criminal Procedure or in  any other law, the offences specified in s. 6(1) shall be  tried by  a Special Judge only and the Special Judge may also  try any  other  offence with which the accused  may  be  charged under  the  Code of Criminal Procedure at  the  same  trial. These provisions between them establish two periods of  time in  relation to the tender of pardon in so far  as  offences mentioned in ss. 6(1) and 7(1) and (3)  of the Criminal  Law Amendment Act are concerned.  Before the     case    reaches the Special Judge the provisions of s. 337(1) of the   Code of Criminal Procedure apply at the stage of investigation or inquiry.  If any Magistrate therein mentioned tenders pardon and the person who is tendered pardon is examined under sub- section (2), the Magistrate must, without making any further inquiry, send the case to the Special Judge, if the  offence is one of those mentioned in sub-section (2B) above set out. In   other  words,  just  as  under  sub-section  (2A)   the Magistrate  has no option but to commit the accused  to  the Court of Session or the High Court, under sub-section  (2B), he  has no option but to stop further inquiry and  send  the case  to  the Special Judge.  When the case is  before  that Special  Judge  the  tender of pardon can  only  be  by  the Special  Judge and it is deemed to be one under s.  338  for purposes of s. 339 and 339A as explained above.  The fiction is  necessary because no committal proceeding  is  necessary before  a  case  is  sent to a  Special  Judge.   The  words underlined  by  us in s. 337(1) cannot apply  to  tender  of pardon  by Special Judges as some of the words of s. 338  do not apply to them. It follows that the powers of the Special Judge are not cir- cumscribed  by  any condition except one. namely,  that  the action must be with a view to obtaining the evidence of  any

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 9  

person   supposed  to  have  been  directly  or   indirectly concerned  in,  or  privy  to an  offence.   The  pardon  so tendered is also 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.  The disclosure  must  be complete as to himself and as to any other person  concerned as  principal  or abettor.  There is no  provision  for  the recording of reasons for so doing, nor is the Special  Judge required  to  furnish a copy to the accused.   There  is  no provision  for  recording  a preliminary  statement  of  the person. There  can be no doubt that the section is enabling and  its terms are wide enough to enable the Special Judge to  tender a.  pardon  to  any  person who is  supposed  to  have  been directly or indirectly concerned in, or privy to an offence. This must necessarily include a person arraigned before him. But  it may be possible to tender pardon to a person not  so arraigned.  The power so conferred can also be exercised  at any time after the case is received for trial and before its conclusion.  There is nothing in the language 703 of the section to show that the Special Judge must be  moved by the prosecution.  He may consider an offer by an  accused as in this case.  The action, therefore, was not outside the jurisdiction of the Special Judge in this case. There is no merit in the contention that s. 540 of the  Code of  Criminal Procedure governs either ss. 337 or 338 of  the Code  or  s. 8(2) of the Criminal Law Amendment  Act.   That section only confers powers on the Court to summon  material witnesses  at  any stage of any inquiry or  trial  or  other proceeding under the Code.  That power is not to be confused with  the  power  to  tender  pardon  to  an  accused.   The considerations  for summoning witnesses as  court  witnesses are  somewhat different from the considerations on  which  a tender  of pardon should be made.  It is no doubt  necessary to bear in mind the interests of justice in either case  but there  the  common factor ceases  and  other  considerations arise.   It is not, therefore, possible to read s. 540  with ss. 337 and 338 of the Code or with S. 8(2) of the  Criminal Law Amendment Act. The  next question is whether the Special Judge  acted  with due  propriety in his jurisdiction.  Here the  interests  of the   accused  are  just  as  important  as  those  of   the prosecution.  No procedure or action can be in the  interest of  justice if it is prejudicial to an accused.   There  are also  matters  of  public policy to  consider.   Before  the Special  Judge  acts to tender pardon, he must,  of  course, know   the  nature  of  the  evidence  the  person   seeking conditional  pardon  is likely to give, the  nature  of  his complicity and the degree of his culpability in relation  to the  offence  and in relation to the  co-accused.   What  is meant by public policy is illustrated. by a case from Dublin Commission Court (Reg v. Robert Dunne, 5 Cox Cr. cases  507) in  which  Torrens, J. on behalf of himself and  Perrin,  J. observed as follows:               "From  what  I  can see  of  this  case,  this               witness  Bryan,  who has been admitted  as  an               approver  by  the  Crown  is  much  the   more               criminal   of  the  two  on  his   own   show-               ing............  I regret that  this  witness,               Bryan,  has been admitted as evidence for  the               Crown  and thus escaped being placed upon  his               trial.   It is the duty of magistrates  to  be               very  cautious as to whom they admit  to  give

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 9  

             evidence   as  approvers,  and   they   should               carefully inquire to what extent the  approver               is mixed up with the transaction, and if he be               an   accomplice,  into  the  extent   of   his               guilt..............." In  this case the Special Judge made no effort to  find  out what Jagasia had to disclose.  The English law and  practice is (a) to omit the proposed approver from the indictment, or (b)  to  take his plea of guilty on arraignment, or  (c)  to ’offer no evidence and permit his acquittal, or (d) to enter a  nolle prosequi.  In our criminal jurisdiction there is  a tender of a pardon on condition of full disclosure.  Section 8(2) of the Criminal Law Amendment 704 Act  is enabling.  Without recourse to it an accused  person cannot  be  examined as a witness in the same  case  against another   accused.  To  determine  whether   the   accused’s testimony  as an approver is likely to advance the  interest of justice, the Special Judge must have material before  him to  show  what  the  nature  of  that  testimony  will   be. Ordinarily  it  is  for  the  prosecution  to  ask  that   a particular  accused, out of several may be tendered  pardon. But  even where the accused directly applies to the  Special Judge,  he must first refer the request to  the  prosecuting agency.   It is not for the Special Judge to enter the  ring as a veritable director of prosecution.  The power which the Special  Judge  exercises is not on his own  behalf  but  on behalf  of  the prosecuting agency and must,  therefore,  be exercised  only when the prossecuting joins tendered  pardon because it does not need approver’s testimony.  It may  also not like the tender of pardon to the the crime or the  worst offender.  The proper course for the Special Judge is to ask for  a statement from the prosecution on the request of  the prisoner.   If  the prosecution thinks that  the  tender  of pardon will be in the interests of a successful  prosecution of the other offenders whose conviction is not easy  without the  approver’s testimony, it will indubitably agree to  the tendering of pardon.  The Special Judge (or the  Magistrate) must  not  take  on  himself the  task  of  determining  the propriety  of tendering pardon in the circumstances  of  the case.   The  learned  Special  Judge  did  not  bear   these considerations  in mind and took on himself  something  from which  he should have kept aloof.  All that he  should  have done  was  to  have  asked for the  opinion  of  the  public prosecutor   on   the  proposal.   But  since   the   Public Prosecutor,  when appearing in the High Court,  stated  that the  prosecution  also considered favourably the  tender  of pardon to Jagasia we say no more than to caution Magistrates and  Judges in the matter of tender of pardon silo  motu  at the request of the accused.  This practice is to be avoided. Since  the  prosecution  in this case also  wants  that  the tender of pardon be made it is obvious that the appeal  must fail.  It will accordingly he dismissed. V.P.S. Appeal dismissed. 705