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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1310 OF 2010

P.C. Mishra …. Appellant

Versus

State (C.B.I.) & Anr. …. Respondents

J U D G M E N T

K.S. Radhakrishnan, J.

1. We are, in this appeal, concerned with the question  

whether  the  pardon  granted  by  the  Metropolitan  

Magistrate, Tis Hazari, Delhi, under Section 306 Cr.P.C.  to  

the second Respondent,  against whom R.C. No.15(A) 96  

DLI dated 29.2.1996 under Section 7 of the Prevention of  

Corruption Act, 1988 was registered by the Central Bureau  

of Investigation, is legally sustainable.  

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2. The Central Bureau of Investigation (CBI) registered  

R.C. No.15(A) 96 DLI dated 29.2.1996 under Section 7 of  

the Prevention of Corruption Act, 1988 (for short “PC Act”)  

on  receipt  of  a  written  complaint  on  29.2.1996  from  

Gulshan Sikri, proprietor of M/s Filtrex India, Nangal Raya,  

New  Delhi,  against  P.C.  Mishra,  the  then  Assistant  

Commissioner of Sales Tax (Appeals), Appellant herein, for  

demanding Rs.4,000/- as bribe for settling the appeal filed  

against the order of Sales Tax Officer.   

3. CBI,  on  1.3.1996,  laid  a  trap  and the  accused,  PC  

Mishra,  and  his  Reader  Ravi  Bhatt,  second  Respondent  

herein,  were  caught  red-handed  while  demanding  and  

accepting  the  bribe  from  the  complainant.  Both  the  

accused persons  were  arrested by the  CBI  on 1.3.1996  

and, during the course of investigation, an application was  

filed  by  the  co-accused  Ravi  Bhatt  before  the  Special  

Judge, CBI, for recording his confessional statement under  

Section 164 Cr.P.C., which was marked by Special Judge to  

the Chief Metropolitan Magistrate, who assigned the same  

to  the  Metropolitan  Magistrate  and  the  statement  of

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second  Respondent  under  Section  164  Cr.P.C.  was  

recorded on 7.8.1996.  During the course of investigation,  

the witnesses had been examined and records scrutinized  

and  it  transpired  that  the  co-accused  Ravi  Bhatt  had  

accepted  the  bribe  money  for  and  on  behalf  of  the  

Appellant.   The  CBI,  on  investigation,  noticed  that  the  

second Respondent was not a leading accused in the case  

and  it  was  considered  necessary  to  take  him  as  an  

approver to prove the various missing links in the chain of  

circumstantial  evidence,  which  was  otherwise  not  

available to the investigating agency.  Consequently, the  

CBI on 24.10.1996 filed an application under Section 306  

Cr.P.C. before the Special Judge, Tis Hazari, Delhi for grant  

of  pardon  to  the  second  Respondent,  Ravi  Bhatt.   The  

Special Judge marked that application to the learned Chief  

Metropolitan Magistrate for the said purpose, who, in turn,  

marked the same to the Metropolitan Magistrate.    

4. The  Metropolitan  Magistrate  examined  the  

application  of  the  CBI  and  passed  an  order  dated  

2.11.1996, in exercise of powers conferred under Section

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306 Cr.P.C., holding that it was a fit case where pardon  

should be granted to the second accused to enable the  

prosecution to unveil all circumstances of the case and to  

unearth the truth, stating the following reasons :

“Accused  Sh.  Ravi  Bhatt  is  a  privy  to  the  offence.  He is not the principal/leading accused  in this case.  It is not mentioned in the written  complaint of the complainant that accused Sh.  Ravi Bhatt demanded Rs.4000/- from him.  The  role  played  by  him,  however,  is  minimal.  Considering  that  the  matter  relates  to  corruption in the Government Department and  no direct  independent  evidence is  available,  I  think it  appropriate  to  obtain  evidence of  the  accused,  Sh.  Ravi  Bhatt in order to prove the  various  missing  links  in  the  chain  of  the  circumstantial evidence which are not otherwise  available  to  the  investigating  agency.    The  offence  mentioned  in  the  FIR  is  triable  exclusively  by  the  Court  of  a  Special  Judge  appointed under the Criminal Law Amendment  Act, 1952 (46 of 1952).”

5. The above mentioned order was not challenged and  

has attained finality.   Later,  charges were framed under  

Sections 7 and 13(1)(d) read with Section 13(2) of the PC  

Act against the Appellant vide order dated 8.2.2000 after  

getting sanction.  Trial proceeded in the Court of Special  

Judge  and  evidence  was  concluded  as  against  the  

Appellant. Second Respondent, Ravi Bhatt, was examined

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as PW9 by the prosecution and was also cross-examined  

by the Appellant.  

6. The Appellant moved an application under the proviso  

to Section 234 Cr.P.C. for the first time, before the Special  

Judge  on  24.7.2008,  questioning  the  pardon  granted  to  

second Respondent by the learned Metropolitan Magistrate  

on  2.11.1996  in  exercise  of  powers  conferred  under  

Section  306  Cr.P.C.   It  was  contended  that  the  pardon  

could have been granted only by the Special Judge under  

Section 5(2)  of  the  PC Act  and not  by the Metropolitan  

Magistrate, being not a designated Court under the PC Act.  

It was also contended that the Magistrate did not have any  

power  to  grant  pardon.   The Special  Judge rejected the  

application vide order dated 31.10.2008 holding that the  

Metropolitan  Magistrate  had  the  power  to  grant  pardon  

during investigation under Section 306 Cr.P.C. and even if  

the  Magistrate  was  not  empowered  by  law  to  tender  a  

pardon and the order was passed in good faith, then such  

an order is protected under Section 460 Cr.P.C. Aggrieved  

by the same, the Appellant filed Criminal Revision being

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Crl. M.C. No.3514 of 2008 before the High Court of Delhi,  

which was dismissed by the High Court vide its order dated  

6.11.2008, against which this appeal has been preferred.

7. Shri  P.C.  Mishra,  the Appellant,  appeared in  person  

and  submitted  that  the  learned  Metropolitan  Magistrate  

has  committed  a  grave  error  in  granting  pardon  to  the  

second Respondent,  that too, without hearing him.  Shri  

Mishra  submitted  that  the  order  passed  by  the  learned  

Metropolitan  Magistrate  on  2.11.1996  is  without  

jurisdiction, since no power is conferred on him to grant  

pardon  to  second  Respondent  as  the  matter  is  already  

seized before the Special Judge appointed under Section 3  

of the PC Act.  It was pointed out that Section 5(2) of the  

PC Act deals with all matters pertaining to offences under  

the Prevention of Corruption Act, starting from registration  

of FIR to passing of final judgment.  Consequently, it was  

only Special Judge, who could have granted pardon to the  

second Respondent and not the Metropolitan Magistrate.  

Shri  Mishra  also  placed  considerable  reliance  on  the  

Constitution Bench judgment of this Court in A.R. Antulay

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v. Ramdas Sriniwas Nayak and another (1984) 2 SCC  

500  and  various  other  decisions  in  support  of  his  

contention.   Further, it was pointed out that the Special  

Act  lays  down some procedure under  which the Special  

Judge has to function and no other procedure, apart from  

what has been prescribed by the PC Act, could be followed.  

In  support  of  his  contention reliance was placed on the  

judgment of  this  Court  in  Dilawar Singh v. Parvinder  

Singh alias  Iqbal  Singh and another  (2005)  12 SCC  

709 to emphasise the power of the Special  Judge under  

Section 5(2) of the PC Act.  Reliance was also placed on  

the  judgment  of  this  Court  in  Harshad S.  Mehta and  

others v. State of Maharashtra  (2001) 8 SCC 257 and  

Bangaru Laxman v. State (through CBI) and another  

(2012) 1 SCC 500.  It was also pointed out that since the  

issue with regard to the jurisdiction could be raised at any  

point of time, the contention of the Respondents that the  

order of 1996 was challenged only in the year 2008 cannot  

be sustained.   Further, it was also pointed out that the  

learned Metropolitan Magistrate had granted pardon under

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Section 306 Cr.P.C. without issuing notice to the Appellant  

which has caused serious prejudice to him.   

8. Shri Rajiv Nanda, learned counsel appearing for the  

CBI,  submitted  that  the  application  for  pardon could  be  

moved by the prosecution at the stage of investigation, till  

its culmination and in the instant case the application for  

pardon  was  moved  by  the  prosecution  at  the  stage  of  

investigation and that too after recording the statement of  

Ravi  Bhatt  under  Section  164  Cr.P.C.    Learned  

Metropolitan Magistrate, it was pointed out, has exercised  

his jurisdiction to grant pardon under Section 306 Cr.P.C.  

at  the  investigation  stage.   The  Special  Judge,  in  the  

instant  case,  had  directed  the  Chief  Metropolitan  

Magistrate or the Metropolitan Magistrate to deal with the  

application  for  pardon,  since  the  case  was  at  the  

investigation stage.   In any view, it was submitted, even if  

there  was  some irregularity  in  the  order  passed by  the  

Metropolitan  Magistrate,  that  irregularity  was  a  curable  

irregularity in view of Section 460(g) Cr.P.C.

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9. Ms.  V.  Mohana,  learned  Amicus  Curiae  addressed  

elaborate arguments on the scope of Sections 306 and 460  

Cr.P.C. as well as the powers of the Special Judge under  

Section  5(2)  of  the  PC  Act.    Learned  Amicus  Curiae  

pointed  out  that  power  of  the  Magistrate  during  

investigation  to  grant  pardon  is  not  taken  away  or  

deprived by the provisions of the PC Act.  In any view, the  

order passed by the Metropolitan Magistrate is protected  

under  Section  460(g)  Cr.P.C.  since  the  Magistrate  had  

acted bona fide and in good faith.   Learned Amicus Curiae  

also submitted, assuming that the Special Judge under the  

PC  Act  also  has  power  to  grant  pardon  during  

investigation, that will not take away the inherent powers  

on  the  Magistrate  during  investigation  to  grant  pardon  

while exercising powers under Section 306 Cr.P.C. Learned  

Amicus Curiae  further  submitted that  the order  granting  

pardon was passed as early as on 2.11.1996, which was  

revisable and, since no revision had been filed, the order  

had attained finality and hence the same could not have  

been challenged by the Appellant at the fag end of the

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trial, in which, it was pointed out, he had  been convicted  

by the Special Judge vide his judgment dated 24.5.2010.

10. We  are,  in  this  appeal,  concerned  with  the  

correctness  or  otherwise  of  the  order  passed  by  the  

Magistrate  in  granting  pardon  exercising  powers  under  

Section 306 Cr.P.C. during the course of investigation of  

the case and before the submission of the charge-sheet  

before the Special Judge.   The CBI, as already stated, had  

filed an application for grant of pardon before the Special  

Judge at a stage when investigation was going on and the  

Special  Judge,  in its  wisdom, thought it  appropriate that  

the  application  be  dealt  with  by  the  Chief  Metropolitan  

Magistrate, since investigation was not over and charge-

sheet  was  not  submitted  before  him.   The  Chief  

Metropolitan Magistrate, however, assigned the matter to  

the Metropolitan Magistrate.   Situation would have been  

different if the  investigation was over, charge-sheet had  

been submitted and the charges were framed against the  

accused.  In our view, at the stage of  investigation, the  

power  conferred  on  the  Magistrate  under  Section  306

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Cr.P.C.  (Section  337  of  Cr.P.C.  1898  Old  Code)  has  not  

been taken away,  even if  the offence can ultimately be  

tried by a Special Judge.  Section 306 Cr.P.C. is applicable  

in  a  case  where  the  order  of  committal  has  not  been  

passed,  while Section 307 Cr.P.C.  is  applicable after  the  

committal of the case before the judgment is pronounced.  

This  Court  in  A.  Devendran v.  State of  Tamil  Nadu  

(1997) 11 SCC 720 opined that after committal of the case,  

the power to grant pardon vests in the Court to which the  

case has been committed and the pardon granted by the  

Chief Judicial Magistrate is not a curable irregularity. For  

easy  reference,  we  refer  to  Section  306  Cr.P.C.,  which  

reads as follows :

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, 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

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to examine the scope of Section 337 and 338 of the old  

Code (Cr.P.C. 1898) vis-à-vis the powers of a Special Court  

constituted  under  the  Criminal  Law  (Amendment)  Act,  

1952.  This Court held that, reading the proviso to Section  

337 and provisions of  Section 338 together,  the District  

Magistrate is empowered to tender a pardon even after a  

commitment, if the Court so directs.  It was also held that  

under Section 8(2) of the Criminal Law (Amendment) Act,  

1952, the Special Judge has also been granted power to  

tender  pardon.   The  conferment  of  this  power  on  the  

Special Judge in no way deprives the District Magistrate of  

his  power  to  grant  a  pardon  under  Section  337  of  the  

Code.   It  was  held  if  at  the  time  when  the  District  

Magistrate tenders the pardon,  the case was not before  

the Special Judge, then there is no illegality committed by  

the District Magistrate.   

12. The scope of above-mentioned provisions again came  

up for  consideration  before  this  Court  in  Kailash  Nath  

Agarwal (supra), wherein this Court after referring to its

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earlier  judgment  in   Kanta  Prashad  (supra)  held  as  

follows:-

“It  will  be  noted  from  this  decision  that  emphasis is laid on the fact that the proviso to  Section  337  contemplates  concurrent  jurisdiction in the District Magistrate and in the  Magistrate making an inquiry or holding the trial  to tender pardon. It is also emphasised that the  conferment of the power to grant pardon on the  Special  Judge  does  not  deprive  the  District  Magistrate of his power to grant pardon under  Section 337.”

13. In  Bangaru Laxman (supra), this Court has stated  

that  the  power  of  Special  Judge  to  grant  pardon  is  an  

unfettered power and held that, while trying the offences,  

the Special  Judge has dual power of a Special  Judge as  

well as that of a Magistrate.  This Court, while interpreting  

Section 5, then went on to say as follows :-

40. Thus,  on a harmonious reading of Section  5(2) of the PC Act with the provisions of Section  306, specially Section 306(2)(a) of the Code and  Section 26 of the PC Act,  this  Court is  of  the  opinion that the Special Judge under the PC Act,  while trying offences, has the dual power of the  Sessions 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.

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41. ……………….  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.

42. In view of the discussion made above, this  Court  is  of  the  opinion  that  the  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.”

14. Bangaru  Laxman (supra),  therefore,  emphasizes  

the concurrent jurisdiction of the Special Judge as well as  

the Chief Judicial Magistrate or Metropolitan Magistrate to  

grant pardon during investigation, but does not say that  

the Metropolitan Magistrate has no power under Section  

306 Cr.P.C. to grant pardon during the investigation i.e.  

before  filing  of  charge-sheet  before  the  Special  Judge.  

During investigation, in our view, both the Special Judge  

as well as the Magistrate acting under Section 306 Cr.P.C.  

have  concurrent  jurisdiction  to  entertain  application  of  

pardon, which facilitates proper investigation of the crime.  

But, as already indicated, after the committal of the case,

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the  pardon  granted  by  the  Magistrate  is  not  a  curable  

irregularity.

15. We may, in this regard, refer to Section 460 Cr.P.C.  

which  refers  to  nine  kinds  of  crurable  irregularities,  

provided they are caused erroneously and in good faith.  

Irregularity caused while granting pardon is dealt with in  

Section 460(g) Cr.P.C.   The relevant part of that Section  

reads as follows :-

“460. Irregularities  which  do  not  vitiate  proceedings.  

If any Magistrate not empowered by law to do  any of the following things, namely:-

(g) to tender a pardon under section 306;

erroneously  in  good faith  does  that  thing,  his  proceedings  shall  not  be  set  aside  merely  on  the ground of his not being so empowered.”

Section  461  Cr.P.C.  speaks  of  irregularities  which  

vitiate proceedings.

16. We have already held, both the Magistrate as well as  

the Special Judge has concurrent jurisdiction in granting  

pardon under Section 306 Cr.P.C. while the investigation is

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going  on.   But,  in  a  case,  where  the  Magistrate  has  

exercised his jurisdiction under Section 306 Cr.P.C. even  

after the appointment of a Special Judge under the PC Act  

and has passed an order  granting pardon,  the same is  

only  a  curable  irregularity,  which  will  not  vitiate  the  

proceedings, provided the order is passed in good faith.  

In fact, in the instant case, the Special Judge himself has  

referred  the  application  to  Chief  Metropolitan  

Magistrate/Metropolitan Magistrate to deal with the same  

since  the  case  was  under  investigation.   In  such  

circumstances, we find no error in Special Judge directing  

the  Chief  Metropolitan  Magistrate  or  the  Metropolitan  

Magistrate to pass appropriate orders on the application  

of CBI in granting pardon to second Respondent so as to  

facilitate the investigation.    

17. Appeal lacks merit and the same is dismissed.   

……..……………………J. (K.S. Radhakrishnan)

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……..……………………J. (Vikramajit Sen)

New Delhi, March 27, 2014.