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PETITIONER: THE STATE

       Vs.

RESPONDENT: HIRALAL G. KOTHARI AND OTHERS

DATE OF JUDGMENT: 30/11/1959

BENCH: WANCHOO, K.N. BENCH: WANCHOO, K.N. IMAM, SYED JAFFER KAPUR, J.L.

CITATION:  1960 AIR  360            1960 SCR  (2) 355

ACT: Criminal Law-Pardon-Conspiracy and allied offences Tender of Pardon of approver for main offence-Separate trial of  other accused  for subsidiary offence-Examination of  approver  as such   for  subsidiary  offence-Legality-Code  of   Criminal Procedure, 1898, (Act V of 1898), ss. 339, 377(1).

HEADNOTE: On  March  9,  1956,  a conspiracy  to  divulge  the  budget proposals on receiving valuable consideration was discovered and a case was registered under s. 165A of the Indian  Penal Code, s. 5(2) of the Prevention of Corruption Act, 1947,  s. 5  of  the Official Secrets Act, 1923, and s.  120B  of  the Indian Penal Code.  Investigation started on March 10, 1956, and  thereafter pardon was tendered to M by  the  Additional District  Magistrate  under s. 337 of the Code  of  Criminal Procedure.    Owing  to  technical  legal   difficulties   a complaint  under s. 5 of the Official Secrets Act read  with s.  120B  of  the Indian Penal Code was  filed  against  the persons  involved and proceedings began before a  magistrate on  this complaint.  In the course of these proceedings  the prosecution  wanted  to examine M as an  approver,  but  the accused persons objected that as the proceedings before  the magistrate were only under s. 5 of the Official Secrets  Act read with S. 12 OB of the Indian Penal Code and as no pardon could  be  tendered  under s. 337 of the  Code  of  Criminal Procedure  for these offences, M could not be treated as  an approver but could be examined only as an ordinary  witness. It  was contended for the prosecution that as the person  to whom  pardon  was tendered was expected to  tell  the  whole truth   including  details  of  other  subsidiary   offences committed in the course of the commission of the offence for which  pardon  was  tendered, such pardon must  be  held  to include  the  subsidiary offences though not of  the  nature mentioned in s. 377(1), and therefore M could be  considered as an approver in the present proceedings. Held, that a pardon under s. 377(1) of the Code of  Criminal Procedure  could  be  tendered  only  with  respect  to  the offences mentioned therein and that as s. 5 of the  Official Secrets  Act read with s. 120B of the Indian Penal Code  was not  covered  by the words of s. 337(1) no pardon  could  be

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granted for an offence of this nature.  Consequently, as the proceedings before the magistrate were only with respect  to these  offences, M could not be treated as an  approver  for the purpose of these proceedings.

JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeals Nos. 25 to 27 of 1958. 356 Appeals from the judgment and order dated June 25, 1957,  of the  Punjab  High Court, in Criminal Revisions  Nos.  184-D, 185-D  and 186-D of 1956, arising out of  the  judgment  and order dated October 23, 1956, of the    Sessions      Judge, Delhi,  in Criminal Revision Applications Nos. 249, 250  and 251 of 1956. Bipin Behari Lal and R. H. Dhebar, for the appellant. G. C. Mathur and I. N. Shroff, for the respondent in Cr.  A. No.25 of 1958. A.  G. Ratnaparkhi, for the respondent in Cr.  A. No. 26  of 1958. Respondent in Cr.  A. No. 27 of 1959 did not appear. 1959.  November 30.  The Judgment of the Court was delivered by WANCHOO   J.-These   three  appeals  arise  out   of   three certificates granted by the Punjab High Court in a  criminal matter.   They  will  be dealt with together  as  the  point raised in them is common.  The brief facts necessary for the purpose  are these: There is a Government Printing Press  at Rashtrapati  Bhavan  known as  Rashtrapati  Bhavan  Printing Press  which  is located in the President’s  estate  in  New Delhi.  Jacobs was the General Foreman of this Press.  Every year  the budget proposals are printed at this  Press  under the supervision of Jacobs.  As usual, Jacobs supervised  the printing  of  budget proposals in his official  capacity  in February  1955 also.         It appears that Jacobs  entered into  a  conspiracy  to  divulge  the  budget  proposals  on receiving valuable consideration for the same.  Consequently the proposals were divulged to D. P. Chadda and were  passed on to certain businessmen of Bombay, including Nandlal  More and  Hiralal G. Kothari through one A. L. Mehra.   All  this was done against the provisions of the Official Secrets Act, No. XIX of 1923.  Further an offence was committed under the Prevention of Corruption Act, No. 11 of 1947, also  inasmuch as  money  was  paid  to Jacobs  for  divulging  the  budget proposals.           The  same thing  happened  in  February 1956, with ’respect to the                             357 budget proposals for 1956-57.  This was discovered on  March 9,  1956,  and a case was registered under s. 165-A  of  the Indian  Penal Code, s. 5(2) of the Prevention of  Corruption Act,’ s. 5 of the Official Secrets  Act and s. 120-B  of the Indian  Penal  Code and investigation started on  March  10, 1956.  Thereafter, pardon was tendered to A.L. Mehra by  the Additional  District Magistrate on March 23, 1956, under  s. 337  of the Code of Criminal Procedure.  The  four  offences mentioned   above  were  specified  in  the  order  of   the Additional  District Magistrate tendering pardon  to  Mehra. Thereafter owing to technical legal difficulties a complaint under s. 5 of the Official Secrets Act read with s. 120-B of the Indian Penal Code was filed against the persons involved and  it was, stated in that complaint that proceedings  with the respect to the charge under s. 5(2) of the Prevention of Corruption Act would be taken separately.  Proceedings  then

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began  before  a magistrate on this complaint.   It  may  be mentioned  that no proceedings have yet started  insofar  as the  offences under s. 5(2) of the Prevention of  Corruption Act and s. 165-A of the Indian Penal Code are concerned. In  the course of these proceedings before  the  magistrate, the  prosecution  wanted to examine Mehra  as  an  approver. Thereupon   the  accused  persons  objected  that   as   the proceedings  before the magistrate were only under s.  5  of the  Official Secrets Act and s. 120-B of the  Indian  Penal Code,  Mehra  could not be examined as an  approver  and  in consequence the case could not be committed to the Court  of Session but should be disposed of by the magistrate himself. The  magistrate  held  that Mehra could  be  treated  as  an approver  and proceedings before him were therefore  in  the nature  of  commitment proceedings.  Thereupon there  was  a revision to the Sessions Judge who took the view that as the proceedings  before  the magistrate were under s. 5  of  the Official Secrets Act read with s. 120-B of the Indian  Penal Code and as no pardon could be tendered under s. 337 of  the Code  of Criminal Procedure for these offences, Mehra  could not  be treated as an approver and had to be examined as  an 46 358 ordinary  witness  and the proceedings must be  held  to  be trial proceedings before the magistrate and not   commitment proceedings.   He therefore recommended   to the High  Court that the order of the magistrate be  set aside. The   High   court   upheld  the  view   of   the   Sessions Judge  and  ordered accordingly.   It  granted  certificates under  Art. 134(1)(c) of the Constitution; and that  is  how these three appeals have been filed by the State before us. The only question that has been urged before us is that  the view of the magistrate is correct and Mehra could be treated as an approver and examined as such for the purposes of  the proceedings  before  him.   The question  whether  the  case should be committed to the Court of Session does not survive now  as  we are told that one of the accused has  asked  for trial by the Court of Session as provided under s. 13(2)  of the Official Secrets Act.  The High Court examined s. 337 of the  Code of Criminal Procedure and came to  the  conclusion that a pardon under that section could only be tendered with respect  to  certain  offences mentioned  therein.   It  was further of the view that as s. 5 of the Official Secrets Act read with s. 120-B of the Indian Penal Code was not  covered by the words of s. 337(1) and as the proceedings before  the magistrate  were only with respect to these offences,  Mehra could not be treated as an approver, to whom pardon had been tendered, for the purpose of these proceedings. A  mere perusal of s. 337 of the Code of Criminal  Procedure shows  that the view of the High Court is correct.   Section 337(1)  provides  for tender of a pardon in respect  of  the following offences, namely- (i)  Any offence triable exclusively by the High Court or Court of Session ; (ii) Any  offence  punishable with  imprisonment  which  may extend  to seven years; (iii)  Any offence under any of the  following  sections  of the Indian Penal Code: 161, 165, 165-A, 216-A, 369, 401, 435 and 477-A.                             359 Thus pardon can only be tendered with respect to an  offence which falls in one of these categories.  It is not  disputed that an offence under s. 5 of the Official Secrets Act  read with  s.  120-  B of the Indian Penal   Code  does  not fall within any of these categories.  So if the proceedings  were

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with  respect only to an offence under s. 5 of the  Official Secrets Act read with s. 120-B of the Indian Penal Code,  s. 337 of the Code of Criminal Procedure would not apply and no pardon  could  be  tendered to any  person.   It  is  urged, however,  that s. 337(1) contemplates tender of a pardon  on condition  of  the person pardoned 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;  and this means that the person to whom  pardon  is tendered  is  expected  to tell the  whole  truth  including details  of  any other subsidiary offence which  might  have been  committed  in  the course of  the  commission  of  the offence  for  which  pardon is tendered  and  therefore  the pardon  so tendered must be held to include  the  subsidiary offence,  even though, if the subsidiary offence alone  were committed and were not of the nature mentioned in s. 337(i), no  pardon could have been tendered for the same.   Reliance in  this connection is placed also on s. 339 of the Code  of Criminal Procedure, which provides that where any person who has  accepted pardon either by wilfully concealing  anything essential or by giving false evidence, does not comply  with the Condition on which the tender was made, he may be  tried for the offence in respect of which the pardon was  tendered or  for any other offence of which he appears to  have  been guilty in connection with the same matter.  It is said  that the specific provision for trial for any other offence which might have been committed in connection with the same matter in  s.  339  shows that the pardon  would  cover  the  other offence also even though it may not be an offence for  which the pardon was and could be tendered. We are of opinion that no such inference could be drawn from the use of these words in s. 339, for that 360 section  deals  with a  different  contingency   altogether, namely,  whether  the  conditions of  the  pardon  had  been complied   with.    It   is  to   be   remembered   that   a pardon-  -tendered  under  s.  337  is  a  protection   from prosecution.   Failure   to comply with  the  conditions  on which  the  pardon  is  tendered  removes  that  protection. All  that  s. 339 says, provided the  requisite  certificate under  that  section is given by the Public  Prosecutor,  is that  the  person  to whom the pardon  is  tendered  can  be prosecuted for the offence for which the pardon was tendered as  also any other offence of which he appears to be  guilty in connection with the same matter.  This would be just  the same  as if s. 339 merely stated that on failure  to  comply with the conditions of the pardon such pardon would be  for- feited.  , The words of s. 339 therefore are of no  help  in construing  s. 337 and we must look to the words of  337  in deciding  whether a pardon could be tendered for an  offence under s. 5 of the Official Secrets Act read with s. 120-B of the Indian Penal Code.  The fact that in the application  in which   the   police  requested  the   Additional   District Magistrate  for  tender  of pardon or in the  order  of  the Additional District Magistrate tendering pardon, s. 5 of the Official Secrets Act was mentioned along with other offences for  which  pardon could be tendered would not mean  that  a pardon  could be tendered for an offence under that  Act  if under  the law as provided in s. 337(1) no pardon  could  be tendered  for an offence under s. 5 of the Official  Secrets Act.   As  we read s. 337(1), it is to  our  mind  perfectly clear that pardon can only be tendered under that  provision with  respect to the three categories of offences  mentioned therein and already indicated above and none other.  As s. 5

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of the Official Secrets Act read with s. 120-B of the Indian Penal  Code does not fall within any of these categories  no pardon  can  be  tendered  with  respect  to  that  offence. Therefore, Mehra to whom pardon has been tendered, could not be  examined  as an approver in the  proceedings  which  are concerned  ,only with an offence under s. 5 of the  Official Secrets Act read with s. 120-B of the Indian Penal Code.                             361 Learned  counsel  for the appellant drew  our  attention  to three  cases in support of the view that a pardon  under  s. 337(1)  could be tendered not only for the offences  of  the kind enumerated therein but also other  offences which might be committed in the course of the commission of the offences enumerated  therein but which might not be within the  terms of  s.  337(1).   These cases are:  Queen-Empress  v.  Ganga Charan  (1)  ; Harumal Parmanand v. Emperor (2);  and  Shiam Sunder  v.  Emperor  (3).   These  cases  however  refer  to different  circumstances altogether and were  not  concerned with  ’the  interpretation  of  s. 337(1)  of  the  Code  of Criminal  Procedure.  In all these cases the  question  that arose  before  the courts was whether an  approver  who  was prosecuted  under  s. 339 for certain offences could  be  or should  be so prosecuted.  They also turned on the terms  of the pardon granted in those particular cases.  It was  there held  that  where a question arose how far  a  pardon  would protect  an approver, it. should not be treated in a  narrow spirit,  bearinG  in mind that in countenaiicing  tender  of pardons to accomplices the law does not invite a cramped and constrained  statement  by’  the  approver  but  requires  a thorough and complete disclosure of all the facts within his knowledge  bearing upon the offence or offences as to  which he  gave  evidence.  The considerations which apply  when  a trial is taking place tinder s. 339 of the Code of  Criminal Procedure  are  entirely different.  The proviso to  s.  339 shows  that at his trial, an approver is entitled  to  plead that he has complied with the condition upon which tender of pardon  was made and if he succeeds in proving that  he  has complied with the conditions upon which the tender was  made he  is  protected  from  prosecution  with  respect  to  all offences  which appear to have been committed in  connection with the matter giving rise to the offence for which  pardon was tendered.  These three cases really turn on the question whether  the accused had complied with the  conditions  upon which the pardon was tendered to him and it was held that be had so complied. (1) I.L.R. 11 All. 79.          (2) A.I.R. 1915 Sind 43, (3)  A.I.R. 1921 All. 234, 362 In  those circumstances, the trial under s. 339 was held  to be  bad.  We are not concerned in the present case  with  s. 339.     What   we   have   to   decide   is    whether    a pardon under S. 337(1) of the Code of Criminal Procedure can be granted in the case of an offence under s.     5  of  the Official Secrets Act read with s. 120-B of        the Indian Penal  Code.   To that there can be only one answer  on  the terms  of s. 337(1), namely, that no pardon can  be  granted for  an offence of this nature.  Therefore, as  the  present proceedings  before the magistrate are only for  an  offence under s. 5 of the Official Secrets Act read with s. 120-B of the  Indian  Penal  Code, Mehra cannot  be  examined  as  an approver in that court.  There is no force in these  appeals and they are hereby dismissed. Appeals dismissed.

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