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REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1837 OF 2013

C.B.I.                             …..Appellant  

Versus  

Ashok Kumar Aggarwal & Anr.                                        ..Respondents  

                    J U D G M E N T  

Dr. B.S. Chauhan, J.

1. This appeal has been preferred against the impugned judgment  

and order dated 20.8.2007 passed by the High Court of Delhi at New  

Delhi in Crl. Misc. (Main) No. 3741 of 2001, by which it has set aside  

the  order  of  the  Special  Judge  dated  7.9.2001  granting  pardon  to  

respondent no. 2, Shri Abhishek Verma  under Section 306 of Code of  

Criminal Procedure, 1973 (hereinafter referred to as the ‘Cr.P.C.’) and  

making him an approver in the case wherein respondent no.1, Ashok  

Kumar Aggarwal is also an accused; and remanded the same to decide  

the application afresh.

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2. Facts and circumstances giving rise to this appeal are that:

A. A case was registered by the appellant, CBI on 29.1.1999 on  

the written complaint of one Abhijit Chakraborty, Additional Director,  

Enforcement Directorate (hereinafter referred to as ‘ED’), Ministry of  

Finance, Government of India. The complainant alleged that the Delhi  

Zonal office of the Enforcement Directorate conducted a search at the  

office  i.e.  three  shops  at  Hotel  Maurya  Sheraton,  New  Delhi  and  

residential  premise  i.e.  G-51,  Lajpat  Nagar  III,  New Delhi  of  one  

Subhash  Chandra  Barjatya  on  1.1.1998.  Respondent  no.1  was  the  

Deputy Director incharge of Delhi Zone at the relevant time.  

B. During the searches, the officers of the ED seized a fax message  

(debit  advice)  from  one  of  the  shops  of  said  Shri  S.C.  Barjatya,  

purportedly sent from Swiss Bank Corporation, Zurich, Switzerland.  

This  fax  message   reflected  a  debit  of  US  $  150,000/-  from  the  

account of Royalle Foundation, Zurich, Switzerland in favour of one  

S.K.  Kapoor,  holder  of  account  no.  022-9-608080,  Hong  Kong  &  

Shanghai  Banking  Corporation  (HSBC),  as  per  the  advice  of  the  

customer i.e. Royalle Foundation.  

C. Shri  S.C.  Barjatya  filed  a  complaint  dated  4.1.1998  with  

Director Enforcement alleging that the fax message from Swiss Bank  

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Corporation  was  a  forged  document  and  had  been  planted  in  his  

premises during the course of the search undertaken on 1.1.1998 in  

order  to  frame  him.  The  complainant  and  his  employee  had  been  

illegally  detained  on  the  said  night  and  were  threatened  and  

manhandled.   

D. The  ED  conducted  an  enquiry  and  Shri  S.C.  Barjatya  was  

arrested  on  28.1.1998..  In  March  1998,  Shri  Barjatya  submitted  a  

letter  to ED allegedly procured by one Shri  M. Kapoor,  Chartered  

Accountant of Shri S.C. Barjatya from Eric Huggenberger, Attorney  

of Swiss Bank Corporation, Zurich, Switzerland, which was later on  

authenticated  by  the  Bank  and  the  Indian  Embassy  in  Berne,  

confirming that the above said fax message was a forged document  

and  was  never  issued  by  the  Swiss  Bank  Corporation,  Zurich,  

Switzerland.  

E. In view of the above facts, a prima facie view was taken that a  

criminal  conspiracy had been hatched by the  officers  of  the  Delhi  

Zonal office to create a forged document and to use it as a genuine  

document to create false evidence and  to implicate S.C. Barjatya.   

F. Respondent  no.2  was  arrested  in  November,  1999  and  his  

statement  was  recorded under  Section  161 Cr.P.C.  before  the  CBI  

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disclosing that he played an active role in forging the said fax on the  

instructions of respondent no.1. On 2.12.1999, confessional statement  

of  the  respondent  no.2  was  recorded  in  the  court  of  Metropolitan  

Magistrate  under  Section  164  Cr.P.C.,  wherein  he  re-iterated  his  

statement as made before the CBI.   During this period,  respondent  

no.1  remained  absconding  and  could  be  apprehended  only  on  

23.12.1999 from a hotel at Saharanpur wherein he was staying under a  

fictitious name.  

G. Respondent no.2 filed an application under Section 306 Cr.P.C.  

for  grant  of  pardon and  becoming  an  approver  on  18.7.2000.  The  

Court entertained the said application and issued notices on 3.8.2000.  

When  the  said  application  came  up  for  hearing  on  1.9.2000,  the  

Presiding Officer was on leave. Thus, the matter was adjourned for  

21.9.2000.  

H. The CBI filed a reply to the said application on 1.9.2000 stating  

that it had no objection if respondent no.2 was tendered pardon and  

made an approver. However, as the investigation was not complete,  

the  application  could  not  be  decided.  Respondent  no.1  filed  an  

application  on  30.10.2000,  praying  that  he  should  be  given  an  

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opportunity to be heard before the respondent no.2 is tendered pardon  

and made an approver.  

I. When  the  matter  came  up  on  3.11.2000  before  the  court,  

respondent  no.2  himself  made an  application that  the investigation  

was  still  pending and therefore,  hearing of  his  application  seeking  

pardon be deferred and which was accordingly ordered.  

J. The  learned  Special  Judge  issued  a  Letter  Rogatory  dated  

29.1.2001 to the competent judicial authority in Switzerland seeking  

certain information in respect of the transactions revealed by the said  

fax purported to be a forged and fabricated document.   

K. Respondent no.2 filed an application dated 2.5.2001 for revival  

of the earlier application seeking pardon and making him an approver,  

though the reply to the Letter Rogatory was still awaited. However,  

the CBI filed its reply dated 3.5.2001 and submitted that the reply to  

the Letter Rogatory would be only corroborative in nature and would  

not  have any effect  in deciding the application filed by respondent  

no.2.

L. Respondent  no.1 moved an application on 3.5.2001 claiming  

that he had a right to oppose the application filed by respondent  no.2  

seeking pardon.  However,  the said  application was rejected  by the  

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learned Special Judge on the same day.  The said order dated 3.5.2001  

rejecting  the  application  of  respondent  no.1  claiming  the  right  to  

oppose the application filed by respondent no.2 was affirmed by the  

High Court vide order dated 10.7.2001 and by this Court vide order  

dated 8.10.2001.  

M. The reply to the Letter Rogatory dated 18.7.2001 was received  

by the CBI on 30.7.2001 and the said reply was placed before the  

court. The CBI requested the court that it should be permitted to retain  

the same for  further  investigation which was allowed.  The learned  

Special  Judge  allowed the  application  of  respondent  no.2 seeking  

pardon and made him an approver vide order dated 7.9.2001.

N. Aggrieved, respondent no.1 filed a writ petition challenging the  

said order dated 7.9.2001 which was subsequently converted into a  

petition under Section 482 Cr.P.C. i.e. Crl. Misc. (Main) No. 3741 of  

2001.  During  the  pendency  thereof,  charge  sheet  was  filed  on  

28.6.2002 and the learned Special Judge took cognizance of the case  

vide order dated 8.7.2002.  The Special Judge proceeded further and  

framed the charges vide order dated 17.12.2005. In the meanwhile, the  

prosecution obtained sanction for prosecution of respondent no.1, and  

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the same was challenged by the respondent no.1 by preferring Writ  

Petition No. 1401/2005.   

O. The  High  Court  dealt  with  the  petition  under  Section  482  

Cr.P.C.  vide  impugned  judgment  and  order  dated  20.8.2007  and  

quashed  the  order  dated  7.9.2001.  The matter  was  remitted  to  the  

learned Special Judge to decide the application afresh in light of the  

charge sheet and the relevant material available with the CBI.   

Hence, this appeal.  

3. Shri  K.V.  Vishwanathan,  learned  ASG  appearing  for  the  

appellant has submitted that the order passed by the Special Judge on  

7.9.2001 was in consonance with the law laid down by this Court. The  

question of examining the culpability or comparing the same between  

the accused does not arise. Pardon can also be granted to an accused  

whose culpability is higher than that of the other accused in the crime.  

The  Special  Judge  has  passed  the  order  strictly  observing  and  

following  the  ratio  laid  down  by  this  court  in  this  regard  in  Lt.  

Commander Pascal Fernandes v. State of Maharashtra & Ors.,  

AIR 1968 SC 595 and subsequent judgment in Jasbir Singh v. Vipin  

Kumar Jaggi & Ors., AIR 2001 SC 2734. The High Court erred in  

setting aside the order of the Special Judge and remanding the case to  

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be  decided  afresh.   The  High  Court  failed  to  appreciate  that  

respondent no.1 had earlier approached the High Court and this court  

moving various applications but did not succeed.  Those orders had  

attained finality, however, were not taken note of by the High Court.  

The oral direction given by the Special Judge that the CBI should file  

the  list  of  cases  being investigated  by different  agencies  involving  

respondent no.2 was not complied with. However, failure on part of  

the  CBI  to  do  so  would  not  materially  affect  the  decision  of  the  

Special  Judge  granting  pardon  and  making  respondent  no.2  an  

approver.   Granting  pardon  and  making  an  accused  approver  is  a  

matter between the court and the applicant accused. The co-accused  

has no right to be heard before any forum.  Therefore, the impugned  

order is liable to be set aside.  

4. Shri Maninder Singh, learned counsel appearing on behalf of  

respondent no.2, has supported the case of the appellant and adopted  

the submissions made by the learned ASG and further submitted that  

order  granting  pardon  by  the  Special  Judge  did  not  require  

interference.  The High Court erred in passing the impugned order.

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5. Per  contra,  Shri  Ram  Jethmalani,  learned  senior  counsel  

appearing for respondent no.1 has opposed the appeal contending that  

the reply to the Letter Rogatory itself revealed that the fax message  

recovered from the  premises  of  Shri  S.C.  Barjatya  was a  genuine  

document and not a forged and fabricated one. In fact, there had  

been communication between Swiss Bank Corporation and Shri S.C.  

Barjatya and those letters had been annexed by the Judicial Authority  

in  Switzerland  alongwith  the  reply  to  the  Letter  Rogatory  which  

clearly revealed that there indeed had been communication and the fax  

message  recovered from the  premises  of  Shri  S.C.  Barjatya was  a  

genuine document. The Revenue Department itself has accepted that  

the fax was genuine and not a forged document in other proceedings  

initiated against  the respondent no.  1.  In view of the provisions of  

Section  166-A Cr.P.C.,  documents  sent  by  the  Swiss  Authority  in  

reply to the Letter Rogatory are in fact evidence collected during the  

course of investigation. Respondent no.2 is facing multiple criminal  

cases  involving  serious  charges,  including  espionage  etc.  and  

currently  is  in  jail.  The  version  given  by  respondent  no.2  in  his  

statement  under  Section  161  Cr.P.C.  before  the  CBI  or  in  his  

confessional statement under Section 164 Cr.P.C. reveals that his wife  

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Smt. Asmita Verma had indulged in Hawala transactions with S.C.  

Barjatya and she had regularly been visiting the latter’s commercial  

premises  in  relation thereto and respondent  no.1 simply  wanted to  

know more  about  the  same.  The  culpability  of  respondent  no.2  is  

much more. More so, the order passed by the Special Judge granting  

pardon suffers from non-application of mind as the letters written by  

the Bank Corporation of Switzerland were not examined by the court  

due to their retention by CBI. In fact, if those letters are taken into  

consideration,  the criminal  proceedings against  respondent  no.1 are  

liable to be quashed.  The order granting or rejecting the prayer of  

pardon  is  revisable.  If  the  rights  of  the  co-accused  are  adversely  

affected, he has a right to be heard. Therefore, the appeal is liable to  

be dismissed.  

6. We  have  considered  the  rival  submissions  made  by  learned  

counsel for the parties and perused the record.  

7. In Lt. Commander Pascal Fernandes (supra), Hidayatullah J.  

(as His Lordship then was) speaking for a three-Judge Bench dealt  

with the issue involved herein in great detail and explained the scope  

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of the provisions of Section 337 of the Code of Criminal Procedure,  

1898 (hereinafter referred to as the ‘old Code’) observing as under:  

“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 showing... 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   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....”

   (Emphasis added)

This Court further observed :

“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   prosecution joins in the request. The State may not desire   

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that any accused be tendered pardon because it does not   need  approver’s  testimony.  It  may  also  not  like  the   tender of pardon to the particular accused  because he  may  be  the  brain  behind  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.”   

8. In Laxmipat Choraria & Ors. v. State of Maharashtra, AIR  

1968 SC 938, this Court while dealing with a similar issue under the  

provisions of the old Code, after placing reliance on the judgment in  

Charlotte Winsor v. Queen, (1866) 1 QB 308 observed as under:  

“To keep the sword hanging over  the  head of  an   accomplice  and  to  examine  him  as  a  witness  is  to   encourage  perjury.  Perhaps  it  will  be  possible  to   enlarge Section 337 to take in certain special laws where   accomplice testimony will always be useful and witness   will  come  forward  because  of  the  conditional  pardon   offered to them…..”

           (Emphasis added)

9. In Saravanabhavan and Govindaswamy v.  State of Madras,  

AIR 1966 SC 1273, Justice Hidayatullah, speaking for the majority of  

the Constitution Bench observed that the antecedents of the approver  

do not  really  make him “either  a  better  or  worse witness”  but  his  

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evidence can only be accepted on its own merit and with sufficient  

corroboration.  

10. In Prithipal Singh & Ors. v. State of Punjab & Anr., (2012)  

1 SCC 10, this Court considered a case where an accomplice who had  

not been put on trial was examined as a witness who deposed in the  

court  after  taking  oath;  and  after  considering  earlier  judgments  

particularly  Rameshwar v.  State of  Rajasthan,  AIR 1952 SC 54;  

Sarwan Singh Rattan Singh v. State of Punjab, AIR 1957 SC 637;  

Suresh Chandra Bahri v. State of Bihar, AIR 1994 SC 2420;  K.  

Hashim v. State of Tamil Nadu, AIR 2005 SC 128; and Chandran  

v. State of Kerala, AIR 2011 SC 1594  held that an accomplice is a  

competent  witness  and  that  conviction  can  rest  upon  his  

uncorroborated  testimony,  yet  the  court  is  entitled  to  presume and  

may indeed be justified in presuming in the generality of cases that no  

reliance can be placed on the evidence of an accomplice unless the  

evidence  is  corroborated  in  material  particulars,  which  means  that  

there has to be some independent witness tending to incriminate the  

particular accused in the commission of the crime. The deposition of  

an accomplice in a crime who had not been made an accused and put  

to trial can be relied upon, however, his evidence is required to be  

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considered  with  care  and  caution.  Such  a  person  is  a  competent  

witness as he deposes in the court after taking oath and there is no  

prohibition  in  law  not  to  act  upon  his  deposition  without  

corroboration.  

11. Section  114  Illustration  (b)  and  Section  133  of  the  Indian  

Evidence  Act,  1872  provide  for  the  same  that  an  accomplice  is  a  

competent  witness  and  that  his  testimony  can  be  relied  upon  but  

depending upon the quality of the evidence. While Section 133 reads  

that  “Accomplice  is  a  competent  witness  and  a  conviction  can  be  

maintained on his evidence”, illustration (b) of Section 114 provides  

for presumption that “an accomplice is unworthy of credit, unless is  

corroborated in material particulars”.  Thus, in practice conviction of a  

person on such evidence should not take place except under very rare  

and exceptional circumstances.  Usually substantial corroboration is  

required.  This provision incorporates a rule of caution to which the  

court must have regard. (Vide:  Sheikh Zakir v. State of Bihar, AIR  

1983 SC 911;  Niranjan Singh v.  State of  Punjab,  AIR 1996 SC  

3254; and  State of Tamil Nadu v. Suresh & Anr., AIR 1998 SC  

1044).  

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In Bhiva Doulu Patil v. State of Maharashtra, AIR 1963 SC  

599,  this  court  considered  the  judgment  in  Bhuboni  Sahu v.  The  

King, AIR 1949 PC 257 wherein it has been  observed  as under:

 “The danger of acting upon accomplice evidence is not   merely  that  the accomplice is on his  own admission a   man of bad character who took part in the offence and   afterwards  to  save  himself  betrayed  his  former   associates, and who has placed himself in a position in   which he can hardly fail to have a strong bias in favour   of the prosecution; the real danger is that he is telling a   story which in its general outline is true, and it is easy   for him to work into the story matter which is untrue. He   may implicate  ten people in  an offence,  and the  story   may be true in  all  its  details  as  to  eight  of  them, but   untrue  as  to  the  other  two,  whose  names  have  been   introduced  because  they  are  enemies  of  the  approver.   This tendency to include the innocent with the guilty is   peculiarly  prevalent  in India, as judges have noted on   innumerable  occasions,  and  it  is  very  difficult  for  the   court to guard against the danger.”

This Court placing reliance on the above, held as under:  

“7. The combined effect of Ss. 133 and 114, illustration   (b) may be stated as follows: According to the former,   which is a rule of law, an accomplice is competent  to   give evidence and according to the latter which is a rule   of practice it is almost always unsafe to convict upon his   testimony alone. Therefore though the conviction of an   accused  on  the  testimony  of  an  accomplice  cannot  be   said  to  be  illegal  yet  the  Courts  will,  as  a  matter  of   practice,  not  accept  the  evidence  of  such  a  witness   without corroboration in material particulars.”  

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12. In  Jasbir  Singh  (supra)  this  Court  dealt  with  the  issue  

observing  that  the  court  while  considering  the  application  for  

tendering  pardon  is  not  to  consider  the  possible  weight  of  the  

approver’s evidence even before it was given. The evidence of  an  

approver  does  not  differ  from  the  evidence  of  any  other  witness  

except that the evidence of the approver is looked upon with more  

caution. The suspicion of such evidence may be removed and if the  

evidence of an approver is found to be trustworthy and acceptable,  

then the  evidence  might  will  be decisive  in  securing a  conviction.  

Thus,  the court  while  exercising such power  should not  assess  the  

probative  value  of  the  possible  evidence  of  the  person  seeking  

permission to become an approver in anticipation and wholly in the  

abstract.   

13. The observations made in Lt. Commander Pascal Fernandes  

(supra) were sought to be construed by the learned ASG as requiring  

the  court  to  indubitably  agree  to  the  tendering  of  pardon  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. We do not agree since this  

court was contemplating a situation where the proper course for the  

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Judge was to  ask  for  a  statement  from the  prosecution  and as  the  

prosecution emphasised that it indubitably agreed to the tendering of  

pardon as it will be in the interests of a successful prosecution of the  

other offenders.   

14. It was contended by Mr. K.V. Vishwanathan, learned ASG, that  

the court must invariably agree to tendering a pardon if the proposal to  

pardon originates from the prosecution or if the prosecution supports  

it.  Since  the  prosecution,  as  in  this  case,  supported  the  plea  of  

respondent no.2 for grant of pardon and for becoming an approver, the  

High Court committed an error in reversing the order of the Special  

Judge. If this contention is accepted, it would completely marginalise  

the  role  of  the  court  and  take  away  the  discretion  of  a  judge  in  

ensuring a fair trial and doing justice in a criminal case. We, therefore,  

reject the contention.  

15. The  aforesaid  view  stands  fortified  by  the  judgment  of  this  

Court  in  Santosh  Kumar  Satishbhushan  Bariyar  v.  State  of  

Maharashta, (2009) 6 SCC 498, wherein it has been held that the  

order of pardon cannot be passed mechanically and the court has  

to apply its mind  while exercising such powers.  In  Bawa Faquir  

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Singh v. Emperor, AIR 1938 PC 266, while dealing with the issue of  

grant of pardon under the provisions of the old Code, it was held that  

tendering pardon under the provisions of Section 337 of the old Code  

is   “a  judicial  act and  under  the  special  precautions,  rules  and  

consequences which the statute sets out”.  

16.  Section 306 Cr.P.C. is verbatim to Section 337 of the old Code.  

There is no change at all with respect to the power to grant pardon.  

More so, exercise of judicial power in relation to grant of pardon is  

required so as to remove any suspicion of political consideration or to  

ensure that the pardon is in the interest of justice (Law Commission of  

India  –  48th Report,  July  1972).  The  Constitution  Bench  in  

Saravanabhavan and Govindaswamy  (supra) considered the issue  

of veracity/reliability of the evidence of an approver and  not who can  

be made an approver or what is the role of the court while considering  

the application for grant of pardon.  

17. No  judgment  had  been  brought  to  our  notice  wherein  the  

aforesaid  quoted  portions  of  three-Judge  Bench  judgments  in  Lt.  

Commander  Pascal  Fernandes  (supra)  and  Laxmipat  Choraria  

(supra)  had been taken into consideration.  The trend has been that  

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without making reference to the afore-mentioned observations in the  

aforesaid  judgments,  this  Court  has  observed  that  the  court  while  

exercising the power to grant pardon need not examine the culpability  

of the accused seeking pardon.  

18. The concept of public policy was explained by Lord Mansfield  

in  Holmon  v.  Johnson,  (1775)  1  Cowp  341  observing  that  the  

principle of public policy is: ex dolo malo non oritur action. No court  

will  lend its aid to a man who founds his cause of action upon an  

immoral  or  an  illegal  act.  If,  from  the  plaintiff’s  own  stating  or  

otherwise, the cause of action appears to arise  ex turpi causa, or the  

transgression of a positive law of this country, there the court says he  

has no right to be assisted.  (See also: Kedar Nath Motani & Ors. v.  

Prahlad Rai & Ors., AIR 1960 SC 213).

Public  policy,  though  based  on  morality  and  its  notions  are  

inherently subjective, has apparently been referred to as synonymous  

with the policy of law or the policy of the statute. However, in modern  

times it has become quite distinct from that of policy of law as it has  

rightly been said that a just thing may not be legally right as morality  

and law are not co-extensive. (Vide: Murlidhar Agarwal & Anr. v.  

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State  of  U.P. & Ors.,  AIR  1974  SC 1924;  and  S.  Khushboo  v.  

Kanniammal & Anr., AIR 2010 SC 3196).  

19. In P. Rathinam Nagbhusan Patnaik v. Union of India, AIR  

1994 SC 1844, this Court observed that in judicial sense, public policy  

does not simply mean sound policy or good policy, but it means the  

policy of a State established for the public weal,  either by law, by  

courts, or general consent.  

20. From the aforesaid discussion on the issue, it is evident that the  

law laid down by this Court in  Lt. Commander Pascal Fernandes  

(supra) and Laxmipat Choraria (supra) still holds the field.  In spite  

of  our  repeated  query,  no  case  where  a  different  view  from  the  

aforesaid two cases has been taken could be brought to our notice.  

In view of the above and considering the judgment of the Privy  

Council in  Bawa Faquir Singh (supra), we are of the view that the  

grant of pardon by a court under Section 306 Cr.P.C. on being asked  

by the accused and duly supported by the State is a judicial act and  

while performing the said act, the Magistrate is bound to consider the  

consequences of grant of pardon taking into consideration the policy  

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of the State and to certain extent compare the culpability of the person  

seeking pardon qua the other co-accused.   

21. For  illustration,  we  take  a  case  where  a  person  hires  a  

professional criminal to kill his entire family i.e. father and brothers  

and succeeds in the said mission. Later on, if he turns approver, the  

mercenary who got paid to execute the conspiracy gets hanged while  

the principal accused who hired the mercenary has not only escaped  

the liability in criminal trial but would also succeed in inheriting the  

entire property of his family which otherwise is not permissible in  

view of the law of succession, etc.  

Under  Section  25  of  the  Hindu  Succession  Act,  1956,  the  

murderer stands disqualified for inheritance.  The provision reads as  

under:

“25.  Murderer  disqualified  –  A  person  who  commits  murder  or  abets  the  commission  of  murder  shall  be  disqualified  from inheriting  the  property  of  the  person  murdered,  or  any  other  property  in  furtherance  of  the  succession to which he or she committed or abetted the  commission of the murder.”

The Section deals with the disqualification from inheritance of  

a person who commits murder or abets commission of murder. The  

provision of  the section  provides  for  a  statutory recognition to  the  

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Hindu Law whereunder the rule is applied not on the basis of text but  

upon  the  principle  of  justice,  equity  and  good  conscience.  (Vide:  

Kenchava  Kom Sanyellappa  Hosmani  & Anr.  v.  Girimallappa  

Channappa Somasagar, AIR 1924 PC 209). The rule had been made  

applicable by all courts consistently including this court as is evident  

from the judgment in Vallikannu v. R. Singaperumal & Anr., AIR  

2005 SC 2587.

22. Once the immunity extends to the accused and the accused is  

made an approver, he stands discharged whereupon he seizes to be an  

accused and would be examined only as  a  witness  unless  the said  

privilege  is  revoked  on  violation  of  the  condition  of  disclosing  

complete truth. [See: State (Delhi Admn.) v. Jagjit Singh, AIR 1989  

SC 598; and Jasbir Singh (supra)].

Thus, the illustration cited hereinabove quoting Section 25 of  

the Act 1956 reflects the policy of law and the court must be alive to  

such  situations  while  passing  an  order  otherwise  the  consequences  

may be too abhorrent.  

23. In  Laxmipat  Choraria  (supra),  this  Court  observed  that  a  

person on whose head a sword remains hanging may not depose the  

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whole truth for the reason that if an accused is facing a large number  

of criminal cases and pardon is granted in one case only, he may not  

be able to come out of the clutches of the police pressure.   

Thus, it is quite possible that he may not be able to speak the  

whole  truth  for  the  reason  that  he  is  under  a  constant  pressure  of  

police and in such an eventuality, the pardon may facilitate perjury  

which may cause a serious prejudice to the co-accused.  The Court is  

only required to be not oblivious of such fact-situation.   

24. The  other  facts  which  could  also  be  taken  note  of  are  the  

correspondence between the Judicial Authority of Switzerland and the  

CBI as well  as  the communication,  particularly reply to  the Letter  

Rogatory sent  by Indian Authorities,  letter dated 13.1.1998 sent by  

S.C. Barjatya to the Swiss Bank, letter dated 4.2.1998 sent by Manju  

Barjatya,  wife  of  S.C.  Barjatya   to  Swiss  Bank  Corporation  and  

contradictory  statements  in  the  complaint  dated  4.1.1998  by  S.C.  

Barjatya and the FIR dated 29.1.1999.  The Court may also take note  

of the statutory provisions of Section 166A Cr.P.C. etc. and further  

correspondence  between  different  departments  on  the  issue  of  

sanction for prosecution of the respondent.  

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25. We do not say that the court does not have jurisdiction to grant  

pardon nor we say that the court can be directed by the superior court  

to consider the matter in a particular manner. We simply suggest that  

these are relevant factors which must be kept in mind by the court  

while exercising such power. It is further clarified that we do not want  

to suggest that the finding recorded by the criminal court is binding on  

civil court as the issue raised by the learned ASG that the matter of  

succession under  Section 25 of the Act 1956 has to be dealt with by a  

civil  court  and  the  civil  court  may  not  be  bound  by  the  findings  

recorded by the criminal court nor we suggest that the court has to  

examine each and every point meticulously. The court may consider  

all relevant facts and take a prima facie view on the basis of the same.  

26. So  far  as  the  entertainment  of  the  case  at  the  behest  of  the  

respondent by the High Court is concerned, we may state that he may  

not have a legal right to raise any grievance, particularly in view of  

the law laid down by this Court in Ranadhir Basu v. State of West  

Bengal,  AIR 2000 SC 908.  However, the revisional powers under  

Section 397 read with Section 401 Cr.P.C. can be exercised by the  

court  suo motu, particularly to examine the correctness,  legality or  

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propriety of any finding, sentence or order and as to the regularity of  

any proceeding of the inferior court.   

These two Sections in Cr.P.C. do not create any right in the  

favour of the litigant but only empower/enable the High Court to see  

that  justice  is  done  in  accordance  with  recognised  principles  of  

criminal jurisprudence.  The grounds of interference may be, where  

the facts  admitted or  approved,  do not  disclose  any offence or  the  

court  may interfere where the facts  do not  disclose  any offence or  

where the material effects of the party are not considered or where  

judicial discretion is exercised arbitrarily or perversely.   

(See also: Everest Apartments Co-operative Housing Society Ltd.,  

Bombay v. State of Maharashtra & Ors., AIR 1966 SC 1449; and  

State of U.P. v. Kailash Nath Agarwal & Ors., AIR 1973 SC 2210).

27. Indisputably, respondent no.1 has agitated the issue regarding  

the application filed by respondent no.2 seeking pardon and had lost  

before  the  High Court  as  well  as  before  this  Court  as  the  Special  

Leave Petition stood dismissed. However, these facts had not properly  

been placed by the appellant before the High Court. While passing the  

impugned judgment and considering the fact that the material required  

to  be considered had not  even been placed before  the  court  while  

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disposing of the application for grant of pardon and the manner in  

which the application had been dealt with as the respondent no.2 and  

the present appellant had been playing hide and seek with the court  

and  in  spite  of  the  fact  that  the  court  had  asked  the  appellant  to  

disclose the criminal cases pending against the respondent no.2, no  

information  was  furnished  to  the  court,  we  are  of  the  considered  

opinion that  in  the facts  and circumstances  of  the case,  substantial  

justice should not be defeated on mere technicalities.  

28. In  view of  the  above,  we  do  not  find  any cogent  reason  to  

interfere  with the impugned judgment  and order.  The appeal  lacks  

merit  and  is  accordingly  dismissed.   Interim  order  passed  earlier  

stands vacated.  

Before  parting  with  the  case,  we  would  clarify  that  no  

observation made by us in this judgment, on factual issues should be  

taken as final  by the court  concerned.   The court  shall  proceed in  

accordance with law.  

.........................………………..J.                                                  (DR. B.S. CHAUHAN)

...............………………………J. New Delhi,                    (S.A. BOBDE) November 22,  2013

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