REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS.2164-2165 OF 2011 (Arising out of SLP (Crl.) Nos.3834-35/2011)

Bangaru Laxman .....Appellant(s)

- Versus -

State (through CBI) & another ....Respondent(s)

J U D G M E N T

GANGULY, J.

1.Leave granted.

2.The challenge in these appeals is to an order dated  

17.7.2006 by which the learned Special Judge granted  

pardon to respondent No. 2-Shri T. Satyamurty on the  

condition that the said respondent shall make full  

disclosure of the facts and circumstances relating  

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to the offence committed by him in conspiracy with  

the appellant and one Shri N. Umamaheshwar Raju.

3.The  charge-sheet  in  this  case  was  filed  next  day  

i.e.  18.7.2006  against  the  appellant  and  Shri  N.  

Umamaheshwar  Raju.  The  said  order  granting  pardon  

was challenged before the High Court but the said  

challenge was turned down by the High Court by its  

order  dated  30.8.2010.  The  main  argument  by  the  

appellant in this case is that pardon could not be  

granted by the Special Court prior to the filing of  

the charge-sheet.

4.Certain  facts  which  are  relevant  to  decide  this  

controversy may be recorded.

5.On  21.4.2005  the  confessional  statement  of  the  

respondent  no.2  was  recorded  under  Section  164  

Cr.P.C.  The  said  confessional  statement  of  

respondent  No.2  recorded  his  involvement  and  the  2

involvement  of  the  appellant  in  the  incident.  On  

considering  the  said  statement,  the  prosecution  

formed an opinion that the evidence of PW-2 is of  

great  value  to  the  prosecution  and  thereafter  on  

3.7.2006 the prosecution moved an application before  

the Court of the Special Judge for grant of pardon  

to respondent No.2 so that respondent No.2 could be  

examined  as  an  approver  in  the  case  against  the  

appellant.

6.Thereafter, by an order dated 17.7.2006, pardon was  

granted by the Special Court.

7.Mr. Sunil Kumar, learned counsel for the appellant  

mainly  assailed  the  order  granting  pardon,  inter-

alia, on the ground that the Special Court has no  

jurisdiction  and  authority  to  do  so  before  the  

filing of the charge sheet.

8.Learned counsel has of course raised an ancillary  

grievance that at the stage of granting pardon the  

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Court had already formed its opinion on the guilt or  

otherwise  of  the  appellant  rendering  the  trial  a  

mere mockery. However, his main argument was focused  

on the jurisdiction of the Special Court to grant  

pardon prior to the filing of the charge sheet.

9.In support of his submission, the learned counsel  

referred to the provisions of Sections 306 and 307  

of  the  Code  of  Criminal  Procedure  (hereinafter  

referred  to  as  the  ‘Code’)  and  also  referred  to  

Section 5(2) of the Prevention of Corruption Act,  

1988(hereinafter referred to as the ‘P.C.’ Act)

10. For proper appreciation of the questions involved  

in this case, those provisions are set out below:

“306. Tender of pardon to accomplice. (1) With  a view to obtaining the evidence of any person  supposed to have been directly or indirectly  concerned in or privy to an offence to which  this  section  applies,  the  Chief  Judicial  Magistrate or a Metropolitan Magistrate at any  stage of the investigation or inquiry into, or  the trial of, the offence, and the Magistrate  of the first class inquiring into or trying the  offence, at any stage of the inquiry or trial,  

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may tender a pardon to such person on condition  of his making a full and true dis-closure 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.  

(2) This section applies to-  (a)  any  offence  triable  exclusively  by  the  Court  of  Session  or  by  the  Court  of  a  Special Judge appointed under the  Criminal  Law  Amendment  Act,  1952  (46 of 1952);  (b)

any  offence  punishable  with  imprisonment  which  may  extend  to  seven years or with a more severe  sentence.  

(3) Every Magistrate who tenders a pardon  under sub-section (1) shall record-  

(a) his reasons for so doing;  (b) whether the tender was or was not  

accepted by the person to whom it  was made,  

and  shall,  on  application  made  by  the  accused, furnish him with a copy of such  record free of cost.  (4)  Every  person  accepting  a  tender  of  pardon made under sub- section (1)-  

(a) shall be examined as a witness  in  the  Court  of  the  Magistrate  taking cognizance of the offence  and  in  the  subsequent  trial,  if  any;  

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(b) shall, unless he is already on  bail, be detained in custody until  the termination of the trial.  

(5) Where a person has accepted a tender  of pardon made under sub-section (1) and  has been examined under sub-section (4),  the  Magistrate  taking  cognizance  of  the  offence shall, without making any further  inquiry 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  (46  of  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  himself.  

307. Power to direct tender of pardon. At any  time  after  commitment  of  a  case  but  before  judgment  is  passed,  the  Court  to  which  the  commitment  is  made  may,  with  a  view  to  obtaining  at  the  trial  the  evidence  of  any  person  supposed  to  have  been  directly  or  indirectly concerned in, or privy to, any such  offence, tender a pardon on the same condition  to such person.

S.5(2) of P.C. Act: 6

S.5(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 sub-sections (1) to (5) of section  308 of the Code of Criminal Procedure, 1973 (2  of 1974), be deemed to have been tendered under  section 307 of that Code.”

11. Adverting to those provisions, the learned counsel  

submitted  that  power  to  grant  pardon  is  not  an  

inherent power of the Court. The said power has to  

be  specifically  conferred  and  the  learned  counsel  

submitted that power under Section 306 of the Code  

cannot  be  exercised  by  a  Special  Judge  under  the  

P.C. Act.

12. Learned counsel for the State on the other hand  

submitted that the Court of Special Judge under the  

P.C.  Act  is  a  Court  of  original  jurisdiction.  

Section 5 of the P.C. Act clearly enables a Special  

Judge with the power to grant pardon and he further  7

submitted  that  Sub-section  3  of  Section  5  of  the  

P.C.  Act  saves  the  provision  of  Sub-section  2  of  

Section 5 and that Section 5(2) must be read with  

Section 5(3). Sub-section (3) of Section 5 of the  

P.C. Act is also set out below:

“5(3) Save as provided in sub-sections (1) or  sub-section (2), the provisions of the Code of  Criminal Procedure, 1973 (2 of 1974), shall, so  far as they are not inconsistent with this Act,  apply  to  the  proceedings  before  a  special  Judge; and for purposes of the said provisions,  the Court of the special Judge shall be deemed  to  be  a  Court  of  Session  and  the  person  conducting a prosecution before a special Judge  shall be deemed to be a public prosecutor.”

13. It is further submitted by the learned counsel for  

the State that the power of a Special Judge to grant  

pardon  under  Section  5(2)  of  the  Act  is  an  

unfettered  power  and  the  deeming  clause  has  been  

employed only for the purpose of sub-sections (1) to  

(5) of section 308 of the code. Sub-sections 1 to 5  

of Section 308 run as follows:

“308.  Trial  of  person  not  complying  with  conditions of pardon. (1) Where, in regard to a  person who has accepted a tender of pardon made  under section 306 or section 307, the Public  Prosecutor certifies that in his opinion such  

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person  has,  either  by  wilfully  concealing  anything essential or by giving false evidence,  not complied with the condition on which the  tender was made, such person may be tried for  the offence in respect of which the pardon was  so tendered or for any other offence of which  he appears to have been guilty in connection  with the same matter, and also for the offence  of giving false evidence:  

Provided  that  such  person  shall  not  be  tried jointly with any of the other accused:

Provided  further  that  such  person  shall  not be tried for the offence of giving false  evidence except with the sanction of the High  Court, and nothing contained in section 195 or  section 340 shall apply to that offence.  

(2)  Any  statement  made  by  such  person  accepting the tender of pardon and recorded by  a Magistrate under section 164 or by a Court  under sub-section (4) of section 306 may be  given in evidence against him at such trial.

(3) At such trial, the accused shall be  entitled to plead that he has complied with the  condition upon which such tender was made, in  which case it shall be for the prosecution to  prove that the condition has no been complied  with.  

(4) At such trial, the Court shall-  (a) if  it  is  a  Court  of  Session,  

before the charge is read out an  explained to the accused;  (b)   

if  it  is  the  Court  of  a  Magistrate,  before the  evidence  of  the  witnesses  for  the  prosecution is taken,  

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ask the accused whether he pleads that he has  complied  with  the  conditions  on  which  the  tender of pardon was made.  

(5)  If  the  accused  does  so  plead,  the  Court shall record the plea and proceed with  the trial and it shall, before passing judgment  in the case, find whether or not the accused  has complied with the conditions of the pardon,  and, if it finds that he has so complied, it  shall,  notwithstanding  anything  contained  in  this Code, pass judgment of acquittal.”

14. Mr. Sunil Kumar, learned counsel for the appellant  

in  support  of  his  submissions  relied  on  several  

decisions which are considered by this Court now.

15. He relied on a decision of this Court in the case of  

Lt.  Commander  Pascal  Fernandes vs.  State  of  Maharashtra and Ors.- AIR 1968 SC 594.   

16. Learned counsel for the appellant also relied on the  

decision of this Court in  A.R. Antulay vs.  Ramdas  Sriniwas Nayak and Anr. – (1984) 2 SCC 500 in order  to contend that the procedure for granting pardon  

which has been indicated in Section 5(2) read with  

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Section 307 of the Code must be followed namely that  

the Special Judge being a Court of Sessions can only  

grant pardon after the commencement of the trial.  

But in the instant case pardon has been granted at  

the  stage  of  investigation.  Therefore,  pardon  has  

not been granted, according to the learned counsel  

for  the  appellant,  after  following  the  proper  

procedure.

17. Learned  counsel  relying  on  para  22  in  Antulay’s  case (supra) urged that when the procedure has been  

provided then everything has to be done following  

the said procedure and other modes of performance  

are necessarily forbidden.

18. Learned  counsel  also  referred  to  paragraph  27  at  

page 524 of the report in  Antulay (supra) to point  out that the Special Judge is a Court of original  

jurisdiction and the trial of offences before him  

shall follow the procedure in the Code for trial of  

warrant  cases  by  the  Magistrate.  Learned  counsel  1

also submitted that pardon is to be granted by the  

Special Judge, under provision of Section 307 of the  

Code which is corresponding to Section 308 of the  

old Code.

19. Learned counsel also relied on a decision of this  

Court in State of U.P. vs. Singhara Singh – AIR 1964  SC 358 (para 8 at page 361 of the report) in order  

to contend that the principles in Taylor vs. Taylor  (1876) 1 Ch. D. 426 must be followed in the instant  

case.  The  said  principle  stipulates  that  where  a  

statute required the doing of a certain thing in a  

certain way, the thing must be done in that way or  

not at all.  

20. Learned counsel also referred to the decision in the  

case of Queen Empress vs. Batera & Ors. reported in  Criminal  Judgments  No.3  (Case  No.  2838  of  1897)  

where the Court held that provision of Section 337  

of the old Code must be strictly construed.

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21. We  are  unable  to  appreciate  the  aforesaid  

contentions raised by the learned counsel. It goes  

without saying that under Section 5(2) of the P.C.  

Act the power of the Special Judge to grant pardon  

is an unfettered power subject to stipulation made  

in the Section itself. Such power can be exercised  

at any stage and there is no stipulation that power  

can be exercised by the Special Judge only at the  

stage of trial as urged by the appellant’s counsel.  

The  deeming  clause  which  has  been  introduced  in  

Section 5(2) is for a very limited purpose mentioned  

in Section 5(2) of the P.C. Act. Sub-Sections 1 to 5  

of Section 308 have already been set out above and  

it is clear therefrom that the said provisions have  

been  enacted  for  a  different  purpose  namely  for  

holding trial of a person for not complying with the  

conditions of pardon.  

22. It is well known that a deeming provision is a legal  

fiction and an admission of the non-existence of the  

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fact  deemed.  (See  M/s.  J.K.  Cotton  Spinning  and  Weaving Mills Ltd. and another vs.  Union of India  and others - AIR 1988 SC 191 at 202). Therefore,  while  interpreting  a  provision  creating  a  legal  

fiction, the Court has to ascertain the purpose for  

which the fiction is created.

23. The  law  on  this  aspect  has  been  very  neatly  

summed-up by Lord Justice James in Ex Parte Walton,  

in  re Levy (1881) 17 Ch. D. 746. At page 756 the  

learned Judge formulated as follows:

“…When a statute enacts that something shall be  deemed to have been done, which in fact and  truth was not done, the Court is entitled and  bound  to  ascertain  for  what  purposes  and  between what persons the statutory fiction is  to be resorted to….”

24. The  aforesaid  formulation  has  been  approved  by  

Constitution  Bench  of  this  Court  in  State  of  Travancore  Cochin  and  others vs.  Shanmugha  Vilas  Cashewnut Factory, Quilon reported in AIR 1953 SC  333.  At  page  343  of  the  report  the  aforesaid  

principles have been referred to by this Court along  1

with the various other decisions and which are set  

out:

““When a statute enacts that something shall be  deemed to have been done, which in fact and  truth was not done, the Court is entitled and  bound  to  ascertain  for  what  purposes  and  between what persons the statutory fiction is  to be resorted to….

The  above  observations  were  quoted  with  approval by Lord Cairns and Lord Blackburn in  Arthur Hill v. East and West India Dock Co.,  (1884) 9 A.C. 448. Lord Blackburn went on to  add at page 458:  

"I think the words here 'shall be deemed to  have  surrendered'  ........  mean,  shall  be  surrendered  so  far  as  is  necessary  to  effectuate  the  purposes  of  the  Act  and  no  further;.........."  

(emphasis added)

25. Following the aforesaid well-settled principle, as  

we  must,  we  hold  that  the  deeming  provision  

introduced in Section 5(2) of the P.C. Act is not  

for  fettering  the  power  of  the  Special  Judge  to  

grant pardon in terms of Section 306 of the Code.  

The purpose of introducing the deeming provision in  

Section 5(2) of the P.C. Act is manifest from the  

text of Section 5(2), namely, the same is introduced  

only  for  the  purposes  of  sub-sections  1  to  5  of  

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Section 308 of the Code and it is only for the said  

purpose  that  the  sanction  is  deemed  to  have  been  

tendered under Section 307 of the Code.  

26. If this Court accepts the contention of learned  

counsel  for  the  appellant  that  the  Special  Judge  

under the P.C. Act has no power to grant the pardon  

under Section 306 of the Code in view of the deeming  

clause under Section 5(2) of the P.C. Act, that will  

amount  to  reading  Section  5(2)  of  P.C.  Act  in  a  

manner  which  is  revolting  to  reason  and  by  doing  

violence to the plain words of the statutes.  

27. The  contention  of  the  learned  counsel  for  the  

appellant cannot be accepted for other reasons also  

which are discussed hereinbelow.

28. The decision in  Pascal  (supra) was rendered on an  interpretation  of  Section  8(2)  of  Criminal  Law  

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Amendment Act, 1952. Section 8(2) of Criminal Law  

Amendment Act, 1952 is set out below:

“(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 parson so tendered shall, for  the purposes of Secs. 339 and 339-A of the Code  of Criminal Procedure, 1898, (5 of 1898) be  deemed to have been tendered under Sec. 338 of  that Code.”

29. Section 8(2) of Criminal Law Amendment Act, 1952  

is virtually in parimateria with Section 5(2) of the  

P.C. Act

30. The  said  decision  in  Pascal  (supra)  was  rendered  when the old Criminal Procedure Code of 1898 was in  

force. After the enactment of the new Code of 1973,  

Sections 337 to 339 of the old Code were substituted  

by the Criminal Law Amendment Act and Sections 306  

to 308 of the present Code conferred powers to grant  

pardon on the Magistrate and also on the Court to  1

which  commitment  is  made.  The  decision  in  Pascal  (supra)  was  rendered  in  the  context  of  a  

substantially different statutory provision. Section  

337 of the old Code is different from Section 306 of  

the present Code. Specially Section 306(2)(a) which  

has been quoted above was not there in Section 337  

of  1898  Code.  Section  306(2)(a)  clearly  makes  

Section 306 applicable to the Court of Special Judge  

under the P.C. Act. Such a conclusion is inescapable  

on  a  conjoint  reading  of  Section  306(2)(a)  with  

Section 26 of the P.C. Act, which is set out below:  

26. Special Judges appointed under Act 46 of  1952 to be special Judges appointed under this  Act.-  Every special Judge appointed under the  Criminal Law Amendment Act, 1952, for any area  or  areas  and  is  holding  office  on  the  commencement of this Act shall be deemed to be  a special Judge appointed under section 3 of  this  Act  for  that  area  or  areas  and,  accordingly,  on  and  from  such  commencement,  every such Judge shall continue to deal with  all the proceedings pending before him on such  commencement in accordance with the provisions  of this Act.”

31. Apart  from  that,  the  questions  which  fell  for  

consideration  in  Pascal  (supra)  are:  (a)  the  difference between Sections 337 and 338 of the old  

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Code and Section 8(2) of the Criminal Law Amendment  

Act (b) that the power of Special Judge in tendering  

pardon  under  Section  8(2)  of  the  Criminal  Law  

Amendment Act is limited to an application by the  

prosecution  and  the  Special  Judge  cannot  act  suo  

motu (c) the further question was that the powers of  

the  Special  Judge  under  Section  8(2)  are  

circumscribed by considerations under Section 540 of  

the old Code and (d) the further contention was that  

Special  Judge  had  not  exercised  his  discretion  

properly in the case.  

32. None of the above considerations are relevant in  

the present case. Therefore, the said decision does  

not  render  any  assistance  to  the  appellant  in  

connection with the points which have been urged on  

his behalf.  

33. The learned counsel for the State relied on a three  

Judge Bench decision of this Court in the case of  

Harshad S. Mehta and others vs. State of Maharashtra  1

reported in (2001) 8 SCC 257. In the case of Harshad  Mehta (supra) this Court was considering the Special  Court (Trial of Offences Relating to Transactions in  

Securities) Act and it is admitted that the Court  

under the aforesaid Act is like the Special Court  

under P.C. Act. Both are Courts of Original Criminal  

Jurisdiction.  In  paragraph  21  of  the  judgment  in  

Harshad Mehta (supra) this Court held as follows:

“21. We have no difficulty in accepting the  contention that the Special Court, per se, is  not  a  Magistrate  falling  in  any  of  the  categories  of  Magistrates  as  enumerated  in  Section 306(1) and also that it is not a court  to which the commitment of a case is made. But,  it does not necessarily follow therefrom that  the power to tender pardon under Sections 306  and 307 has not been conferred on the Special  Court.”

34. In coming to the conclusion that a Special Court is  

a  court  of  original  criminal  jurisdiction,  this  

Court  in  Harshad  Mehta  (supra)  relied  on  the  law  laid down by the Constitution Bench of this Court in  

Antulay’s (supra) in which the Court was considering  the provisions of the P.C. Act.  

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35. Relying  on  the  ratio  in  Antulay (supra),  where  Special  Judge  has  been  considered  a  court  of  

original  criminal  jurisdiction  this  Court  held  in  

Harshad Mehta (supra) that in order to make the said  Court  functionally  oriented  some  powers  are  

conferred by the statute setting it up and except  

those powers which are specifically denied, it has  

to  function  as  a  court  of  original  criminal  

jurisdiction  not  being  hidebound  by  the  

terminological status description of Magistrates or  

a Court of Session. Under the Code, it will enjoy  

all the powers which a court of original criminal  

jurisdiction enjoys save and except the ones which  

are specifically denied. (see para 22, page 269 of  

the report)

36. The Court in  Harshad Mehta  (supra) also considered  the decision of this Court in Pascal (supra). After  considering  the  decision  in  Pascal  (supra),  this  Court  in  Harshad  Mehta  (supra)  came  to  the  

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conclusion that the Special Court enjoys all powers  

which  a  court  of  original  criminal  jurisdiction  

enjoys  whether  of  a  Magistrate  or  as  a  Court  of  

Session,  save  and  except  the  one  specifically  

denied. (See para 50 page 281).  

37. The  conclusion  reached  by  three  Judge  Bench  in  

Harshad Mehta (supra) after considering the decision  in Pascal (supra) is as follows:

“62. Our  conclusion,  therefore,  is  that  the  Special Court established under the Act is a  court of exclusive jurisdiction. Sections 6 and  7 confer on that court wide powers. It is a  court of original criminal jurisdiction and has  all the powers of such a court under the Code  including those of Sections 306 to 308.”

38. If  we  may  note,  the  Court  reached  the  aforesaid  

conclusion  in  Harshad  Mehta (supra)  even  though  under the aforesaid Act there is no provision like  

Section 5(2) in the P.C. Act.  

39. If we follow the ratio of  Harshad Mehta (supra) to  the interpretation of Section 5(2) of the P.C. Act,  

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it is clear that the power to grant pardon under  

Section 306 of the Code has not been specifically  

denied. If it is not specifically denied, then as a  

court of original criminal jurisdiction the Special  

Court under P.C. Act has the power to grant pardon  

under Section 306 of the present Code. Any different  

interpretation will be contrary to the plain words  

of Section 306 of the Code and also the law laid  

down by this Court in  Harshad Mehta (supra) on the  principles decided in Antulay (supra).     

40. Reference in this connection can also be made to the  

decision of the Supreme Court in the case of State  

of Tamil Nadu vs. V. Krishnaswami Naidu and another,  

reported  in  (1979)  4  SCC  5.  In  that  case  the  

question was whether the Special Judge has the power  

of remand. This court, by referring to Section 3(32)  

of  the  General  Clauses  Act,  1897  defining  a  

Magistrate,  held  that  Magistrate  will  include  a  

Special Judge. Therefore, a Special Judge shall be a  

Magistrate for the purposes of Section 167 of the  

Code  even  though  the  word  ‘Special  Judge’  is  not  

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mentioned in Section 167 (see para 7, pg. 8 of the  

report).

41. It  is  therefore  clear  that,  on  the  ratio  of  V.  Krishnaswami (supra),  the  Special  Judge  has  been  given a very important magisterial function, namely  

the power of remand. Compared to that, the power to  

grant pardon is an ancillary power. Therefore under  

the scheme of the Code, read with Section 5(2) of  

the PC Act, and in light of the consistent view of  

this  Court,  a  Special  Judge  will  include  a  

magistrate.  On  the  same  parity  of  reasoning  a  

Special Judge, unless specifically denied, will have  

the power to grant pardon. Here there is no question  

of specific denial, rather Section 5(2) of the P.C.  

Act  clearly  confers  this  power  subject  to  the  

deeming  clause,  the  limited  purpose  of  which  has  

been discussed above.  

42. Thus, on a harmonious reading of Section 5(2) of  

the  P.C.  Act  with  the  provisions  of  Section  306,  2

specially Section 306(2)(a) of the Code and Section  

26 of the P.C. Act, this Court is of the opinion  

that  the  Special  Judge  under  the  P.C.  Act,  while  

trying offences, has the dual power of the Session  

Judge  as  well  as  that  of  a  Magistrate.  Such  a  

Special  Judge  conducts  the  proceedings  under  the  

court both prior to the filing of charge sheet as  

well  as  after  the  filing  of  charge  sheet,  for  

holding the trial.  

43. It  has  already  been  held  by  this  Court  that  the  

Special  Judge  is  fully  vested  with  the  powers  of  

remand.  The power of granting remand is very wide  

power  compared  to  the  power  of  granting  pardon.  

Since this Court has already held that the Special  

Court  is  clothed  with  the  magisterial  power  of  

remand, thus in the absence of a contrary provision,  

this Court cannot hold that power to grant pardon at  

the  stage  of  investigation  can  be  denied  to  the  

Special Court.

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44. In view of the discussion made above, this Court  

is  of  the  opinion  that  power  of  granting  pardon,  

prior to the filing of the charge sheet, is within  

the  domain  of  judicial  discretion  of  the  Special  

Judge before whom such a prayer is made, as in the  

instant case by the prosecution.

45. Any other conclusion would be detrimental to the  

administration of justice, in as much as, the power  

to grant pardon is contemplated in situations where  

serious offence is alleged to have been committed by  

several persons and with the aid of the evidence of  

the  person,   who  had  been  granted  pardon,  the  

offence  committed  may  be  proved.  The  basis  of  

exercise of this power is not to judge the extent of  

culpability  of  the  persons  to  whom  the  pardon  is  

tendered. The main purpose is to prevent failure of  

justice by allowing the offender to escape from a  

lack of evidence.

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46. Therefore, this Court does not find any merit in  

the  contention  urged  on  behalf  of  the  Appellant.  

However,  this  Court  makes  it  clear  that  in  the  

course of holding trial, the Special Judge will not  

be in any way influenced by the observations in the  

order granting pardon but will act independently of  

the  same.  In  this  case,  the  Special  Judge  who  

granted pardon is not holding the trial. Therefore,  

at the time of holding trial, it is directed that  

the Special Judge will independently apply his mind  

to  the  facts  of  the  case  in  arriving  at  his  

conclusions.

47. With  this  direction  the  appeals,  being  without  

merit, are dismissed.  

.......................J. (ASOK KUMAR GANGULY)

.......................J. New Delhi (GYAN SUDHA MISRA) November 22, 2011

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