TMI Blog1983 (11) TMI 341X X X X Extracts X X X X X X X X Extracts X X X X ..... l Bureau of Investigation, disclosed that Anita Industries, Faridabad, had been granted 12 licenses during the years 1972-73 and that the Collector of Customs. Bombay had reported that the firm imported seamless stainless pipes for manufacture of Hypodermic Needles and these were of sizes not required for manufacture of hypodermic needles. It was further pointed out by the Collector that the endues indicated in the licenses had been deleted by the Joint Chief Controller of Imports and Exports, Calcutta. It was further reported that in the correspondence that ensued, Deputy Collector of Customs informed the Controller that inquiries revealed that the firm was no longer in existence and that a show cause notice for cancellation of these licenses was issued to the firm on the ground that the firm had obtained these licenses by fraud and misrepresentation. It was further revealed that the deletion of the endues on the licenses were forged by some unknown person. The C.B.I. was accordingly requested to take up investigation. On receipt of this report the C.B.I. registered a case under S. 120-B, IPC read with S. 420, IPC, 420, IPC, 467 IPC, 471, IPC and S. 5 of the Imports and Export ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es were of the actual users category and these were issued on the recommendations of District Industries Officer, Faridabad and were made by one O. P. Sharma, who at the material time, was posted in that office at Faridabad. Investigation is said to have further disclosed that Harbans Singh Khanna and Baldev Singh who were at the material time working as Inspector and Block Level Extension Officer, respectively, in the aforesaid office, under O. P. Sharma, were also parties to the criminal conspiracy for the issue of import licenses as these officers had verified the applications of these fake firms and recommended the issue of import licenses. It was further found in the course of investigation that the various documents, purporting to be in the name of two of these firms, i.e. Anita Industries and Simco Industries, had been signed by Yog Darshan in fake names as well as by Kusum Diwan and Mohinder Adwani, who were in the employment of Gopal Krishan Ralhan and Yog Darshan. It is further alleged that Kusum Diwan and Mohinder Advani made confessional statements under Section 164 of the Cr.P.C. on February 21, 1976 and March 29, 1976 respectively. It is alleged that they expressed a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovisions of S. 306, Cr.P.C. Now, Therefore, I Mohd. Shamim, Chief Metropolitan Magistrate, Delhi hereby tender pardon to the said Shri M. K. Advani S/o Shri R. P. Advani on the condition of his making true and full disclosure of the whole circumstances within his knowledge relating to the said offences of conspiracy, cheating, forgery etc. as mentioned above. 3. On March 26, 1977 a complaint was filed by R. S. Bansal Deputy Chief Controller of Imports Exports, New Delhi in the Court of Additional Chief Presidency Magistrate 32nd Court, Esplanade, Bombay, under Section 120-B, IPC read with S. 5 of the Imports and Exports (Control) Act, 1947, S. 420, IPC, 468/471, IPC and S. 5 of the Imports and Exports (Control) Act, 1947 against (1) G. K. Ralhan, (2) Yog Darshan, (3) Fakhruddin, (4) Abbas Ali and (5) B. G. Sarang, Kusum Diwan and Mohinder Advani were cited as witnesses, among others, in the complaint. In the course of the complaint it was mentioned that these two persons were approvers and would be examined as witnesses in the complaint. In the list of witnesses the word approver was shown in brackets against their names. Para 50 of the complaint which sums up the allegat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... names of fictitious firms, Anita Industries, Simco Industries and Ruby Industries, and that further in pursuance of the said criminal conspiracy and to achieve the said objects the said accused persons prepared false documents, dishonestly used the said documents as genuine, knowing them to be forged; and on the basis of misrepresentations made dishonestly inducing the import authorities to issue import licenses, thereby committed offences under S. 120-B, IPC read with S. 420, IPC, S. 420, IPC, S. 467, IPC, S. 468, IPC and S. 471, IPC . Kusum Diwan and Mohinder Advani are cited as Approvers in the charge-sheet. 5. Petitioner and Yog Darshan sought transfer of the complaint case from the Bombay Court to the Court of Chief Metropolitan Magistrate, Delhi by a petition in the Supreme Court of India, inter alia, on the ground that the accused persons have been charged with the same offences in both the cases, that the witnesses at both the trials would be common, and that separate cases have been filed to harass the petitioners with mala fide intention and ulterior motives. The plea of the petitioner and Yog Darshan for transfer of the case was opposed on behalf of the C.B.I. and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceedings were initially regulated by S. 244 of the Code in that 5 witnesses were examined. In the case in which charge-sheet was filed, it was proposed to examine the two Approvers and to commit the case to the Court of Session by virtue of the provisions of S. 306(5) of the Code. Similar procedure was sought to be followed on behalf of the complainant in the complaint case when a question arose before the Chief Metropolitan Magistrate on January 15, 1982 if Kusum Diwan and Mohinder Advani, who had been cited as witnesses in the complaint case, could be treated as Approvers in that case and be examined as such and the complaint case then dealt with under Section 306(5) of the Code, so that the case on a charge-sheet, and the complaint case would then be simultaneously tried by the Court of Session. A contention was raised on behalf of the petitioner, and certain other accused persons, that having regard to the nature of the allegations in the complaint, the offences involved in it, the terms of the orders granting pardon, and the confessional statements of the aforesaid two persons, as indeed, the fact that, at the material time, an offence under Section 5 of the Imports and Export ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned in sub-section (2) of S. 397 have been subject-matter of judicial controversy. It has never been in doubt that the Code does not confer any inherent powers but merely preserves the powers that this Court enjoyed. It has also never been in doubt that the inherent powers were not in conflict with specific powers conferred on the Court by the Cr.P.C. but were nevertheless to be sparingly used in exceptional cases to give effect to any order under the Code or to prevent abuse of process of any Court or otherwise to secure the ends of justice and that nothing in the Code could be deemed to limit or affect the inherent powers. There was, however, some support for the contention that the bar of sub-section (2) of S. 397 of the Cr.P.C. would not permit the exercise of inherent powers to interfere in relation to any interlocutory order and that is what the Supreme Court held in the case of Amar Nath 1977CriLJ1891 . This decision would, Therefore, ordinarily be a good authority on a parity of reasoning for the further proposition that the bar of sub-section (3) of S. 397 would oust even the inherent power of this Court to interfere where the revisional power had been declined by the Sess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court or other extraordinary situation excites the Court's jurisdiction. The limitation is self-restraint, nothing more , said the learned Judge. The Supreme Court was concerned in all the three cases with sub-section (2) of S. 397 but the observations in the last case extend to the whole of S. 397 and is not confined to sub-section (2) alone. Even otherwise the quality of the bar in sub-secs. (2) (3) is not different. What has been authoritatively said about the inter-action of the bar on the inherent power of the High Court with reference to sub-section (2) of S. 397, to my mind, would equally hold good in the case of the bar engrafted in sub-section (3) of that Section. The petition is, Therefore, maintainable. It was however, not urged that the impugned orders in the present case could partake the character of merely interlocutory orders. 8. There is thus no statutory bar to the exercise of inherent power of the High Court if the conditions for the exercise of such power are otherwise satisfied, and the present petition is maintainable notwithstanding that a second petition under Section 397 cannot be entertained by either of the Courts. The maintainability of the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o any offence punishable with imprisonment which may extend to 7 years or with a more severe sentence. That is what sub-section (2)(b) provides, the present case being beyond the scope of sub-section (2)(a), in any event. Sub-section (4) of this Section further provides that the person to whom pardon is tendered, and who is popularly called the Approver, though that expression is not used in the Section, he 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 (5) of this Section further provides that after such person has been examined under sub-section (4), the Magistrate taking cognizance of the offences, shall without making any further enquiry in the case, (a) Commit it for trial ----- (i) to the Court of Session if the offence is triable exclusively by that Court or if the Magistrate taking cognizance is the Chief Judicial Magistrate. (ii) to a Court of Special Judge appointed under the Criminal Law (Amendment) Act, 1952 if the offence is triable exclusively by that Court. (b) in any other case make over the case to the Chief Judicial Magistrate who shall try the case himsel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pardon to cases where the seriousness of the main crime alleged may justify such an exercise of the prerogative of the Crown which is delegated to the Courts under these provisions. This view was sought to be reinforced with reference to Legislative history of S. 337. Sections 337 and 339 of the old Code came up for consideration in the Supreme Court in the case of Hira Lal Girdhari Lal Kothari: 1960CriLJ524 . The question in that case was if a pardon could be tendered for an offence u/s. 5 of the Official Secrets Act read with S. 120-B of the IPC and was answered in the negative. The question arose if the Approver in that case could be treated as an Approver and examined as such for the purposes of proceedings on a complaint under Section 5 of the Official Secrets Act. The question whether the case should be committed to the Court of Session did not survive in that case because one of the accused had asked for a trial by the Court of Session as provided under Section 13(2) of the Official Secrets Act. In this case, which involved the leakage of budget proposals by a public servant to a businessman, involved offences under Section 165-A, IPC, S. 5(2) of the Prevention of Corruptio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r cases. It was further observed that, what the Supreme Court was concerned with in the case before it was whether a pardon under Section 337(1) of the Code could be granted in the case of an offence under Section 5 of the Official Secrets Act read with S. 120-B of the Indian Penal Code and observed that to that there can be only one answer, on the terms of that section, namely, that no pardon could be granted for an offence of this nature. S. 337 was next considered in the case of Hasmukhlal N. Vakilna (1972)GLR811 by the Gujarat High Court and it was held that pardon could be tendered to an accomplice for offences which admittedly arise out of the same transaction even when some of the offences are covered by the Section while some are not. This case arose out of a complaint filed for composite offences, some of which were within the terms of S. 337, while some were outside the Section. The trial Court was asked to grant pardon to an accomplice which it did. Subsequently, the attention of the trial Court was drawn to the decision of the Supreme Court in the case of Hira Lal Girdhari Lal Kothari 1960CriLJ524 (supra) and it was urged that pardon could not be given for offences whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court would be available to the prosecution only in cases where for some reasons, the offence in question is to be triable exclusively by a Court of Session . The High Court further observed that in the facts of the case before it, all the offences which are mentioned in the complaint arose out of the same transaction and the trial thereof was not separable so that if the committing Magistrate came to the conclusion that the accused persons should be committed to a Court of Session to stand their trial, it would not be possible for him to order a separate trial for the offences which are not exclusively triable by the Court of Session. It was observed that in the instant case, it will not be possible for the committing Magistrate to split up the trial of the accused and the decision of the Supreme Court in the case of Hira Lal Girdhari Lal Kothari (supra) would not come in the way of granting pardon for all the offences mentioned in the complaint. Reference was also made to the observations of the Supreme Court in the case of State of Andhra Pradesh v. Chimalapati [1964]3SCR297 , to the extent that the very object of the provisions contained in S. 337 of the Code is to allow pardo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y Director of Revenue Intelligence, dated September 28, 1974, which resulted in the registration of case No. R.C. 20/74 F.S. II on November 16, 1974, and is incorporated in the F.I.R., shows that the case was registered with reference to composite transactions and took within its sweep not only the allegations that the principal accused persons entered into a conspiracy with certain others to obtain import licenses by commission of fraud and forgery and committed the offences of fraud, forgery and use of forged documents as genuine pursuant to it to obtain a large number of import licenses, but also the further allegation that these principal accused were party to a conspiracy with certain others to get clearance of goods from the customs on the basis of fraud and forgery, conspiracy in relation thereto, and misutilisation of the imported material in contravention of the conditions of the licenses. The investigation that followed was also a composite one covering the activities of the principal accused and two different sets of accomplices during the entire period from 1971 to 1974 spanning the various stages from obtaining import licenses to the clearance of goods and of misutilis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s wholly unconnected nor can it be said that the two conspiracies and transactions had no nexus or common element. The two principal accused are said to be the brain behind all that is said to have happened. They are alleged to have involved one set of persons with the object of obtaining import licenses in fake names by the commission of offences of fraud and forgery and to have been involved with a different set of persons with a view to take advantage of those licenses and committed offences of fraud and forgery in the clearance and misutilisation of the imported material. As has been pointed above, the investigation, then in progress, was in relation to the composite allegations encompassing both the so-called transactions and conspiracies. If the investigation was composite and pardon was sought and granted in relation to the allegations, forming subject-matter of such composite investigation, the approvers, who were recipients of the pardon, would not cease to be approvers merely because on account of the legal difficulty separate cases had to be filed - one on a charge-sheet, and the other on a complaint. 13. It was then urged that the procedure of S. 244 of the Code havi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers does not even refer to one of the three fake firms. A reference to the confessional statements of the two approvers, to an extent, supports this averment but the contention that these persons cease to be approvers for these reasons suffers from a serious fallacy. If the tender of pardon to the two approvers had reference to the composite allegations and the pardon was granted to them on the condition that they would make true disclosure of all facts within their knowledge in relation to the composite allegations, they would be competent as approvers in relation to both the cases. The confessional statement is not a sine qua non for grant of pardon. The Approver, whether as approver or as an ordinary witness is not necessarily bound to confine his eventual statement at the trial to the statement already made by him, either under S. 161 of the Code or under S. 164 of the Code. Such a person, as indeed, any other witness, is free to add to or subtract from such previous statement, whatever may be the criticism that such addition or deletion may attract. Such addition or deletion may, for example, be characterised as an attempt to introduce an improvement. It may also have its impa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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