TMI Blog2004 (9) TMI 7X X X X Extracts X X X X X X X X Extracts X X X X ..... S.N. VARIAVA J. - Leave granted. This appeal is against the judgment of the High Court of Patna dated March 21, 2002. Briefly stated the facts are as follows: The appellant is an accused in a number of cases pertaining to the fodder scam in the Animal Husbandry Department of Bihar. He has, along with others, been accused of misappropriation of the funds of the Animal Husbandry Department and of fraudulent withdrawals from the State Exchequer by issuing fake bills for supplies never made to the Animal Husbandry Department. The appellant has been, on August 28, 1998, granted a pardon by the Special Judge, CBI, on the condition that he makes a full and complete disclosure. On the basis of the statement made by the appellant, the De ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section (2) of section 306 the pardon is, amongst others, in respect of any offence punishable with imprisonment which may extend to seven years or more. He submitted that such a pardon would operate not just for offences under the Indian Penal Code but would also cover offences under other statutes. He submitted that for an offence under sections 277 and 278 the sentence may extend to seven years. He submitted that by virtue of the pardon no prosecution could have been launched against the appellant under these sections. Mr. Lahoty relied upon the case of Bipin Behari Sarkar v. State of West Bengal reported in [1959] SCR 1324, wherein it has been held as follows: "Section 339(1) of the Code provides that 'where a pardon has been tender ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the court of the Magistrate taking cognizance of the offence and in the subsequent trial, if any. It is clear, therefore, that a mere tender of pardon does not attract the provisions of section 339. There must be an acceptance of it and the person who has accepted the pardon must be examined as a witness. It is only thereafter that the provisions of section 339 come into play and the person who accepted the pardon may be tried for the offence in respect of which the pardon was tendered, if the Public Prosecutor certifies that in his opinion he has, either wilfully concealed anything essential or had given false evidence and had not complied with the condition on which the tender was made." Relying on this case, Mr. Lahoty submitted that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in connection with the b matter of dacoity. It was held that arms were the implements of his trade and crime and that it was impossible to separate the possession of the arms from guilt as a dacoit. It was held that he could not make a full and true disclosure relating to the offence of dacoity without referring to the arms possessed by the gang. It was held that he could not be prosecuted as the pardon covered even this act. In this case, it has also been pointed out that if, however, he had made disclosure in respect of some other felony which was not connected with the felony for which he has been prosecuted, even though that would not be covered by the pardon, the court should recommend to the prosecution not to proceed against him in r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as an accused in the criminal case. The trial judge held that in the absence of any pardon having been granted under section 307 or section 321 of the Criminal Procedure Code an accused could not be examined as a witness for the prosecution. This court held that there was no conflict between the powers exercised under section 307 of the Criminal Procedure Code and by the Government under section 64. This court held that even if there was a conflict, the Narcotic Drugs and Psychotropic Substances Act, 1985, being a special and later enactment, section 64 would prevail. It was held that evidence could be given by the accused on the basis of the immunity granted under section 64. In our view, the High Court was not correct in concluding that u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Constitution of India enjoins that no person can be compelled to be a witness against himself. To continue with the prosecution would thus amount to forcing the appellant to give evidence against himself or to risk pardon being cancelled as he cannot make a full and complete disclosure for fear of being convicted in the other case. Thus, even though the pardon may not extend to these offences, in our view, this is a fit case where the Government should consider not prosecuting the appellant under these sections. To insist on so prosecuting may result in valuable evidence being lost in the fodder scam cases. We, therefore, direct that the prosecution under sections 277 and 278 of the Income-tax Act will stand stayed till trial of the case ..... X X X X Extracts X X X X X X X X Extracts X X X X
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