“Lack Of Evidence Could Only Justify Grant Of Pardon U/s 306 Cr.P.C.” | P&H HC Dismisses Petition To Interfere With Trial Court Order Dismissing Application For Grant Of Pardon

“Lack Of Evidence Could Only Justify Grant Of Pardon U/s 306 Cr.P.C.” | P&H HC Dismisses Petition To Interfere With Trial Court Order Dismissing Application For Grant Of Pardon.

Recently, Hon’ble Punjab & Haryana High Court dismissed the application U/s  482 Cr.P.C. filed by the accused to set aside the order passed by Trial court vide which an application filed by the prosecution under Section 306 Cr.P.C. for grant of pardon to the petitioner has been declined.

Hon’ble High Court held that “It is not a case where there is some deep-rooted conspiracy which is to be unearthed and regarding which there is lack of evidence or such a case where the modus operandi of any scam is unknown. The present case is a trap case where there is sufficient evidence available with the prosecution against the accused. As such, the trial Court has correctly observed that the application is motivated and has been filed with oblique motives.” Further it was observed that it is only the lack of evidence which could justify grant of pardon to one of the co-accused. Any such application is to be examined minutely and cannot be accepted as of right.

BRIEF FACTS OF THE CASE

Petitioner who was working as a Registry Clerk and co-accused Amit Kumar who was Naib Tehsildar, Sub-Tehsil Satnali, Narnaul, had been demanding amount from the complainant for getting sale-deeds registered. When a trap was laid, it is the co-accused Amit Kumar, Naib Tehsildar, only who was caught red-handed. During the proceedings of trial, the prosecution moved an application for grant of pardon to the petitioner who had not been caught at the spot. The trial Court declined the said application while observing that there was sufficient evidence against co-accused Amit Kumar.

HON’BLE COURT’S OBSERVATIONS

At the outset, Hon’ble Mr. Justice Gurvinder Singh Gill framed 3 questions for the consideration of the court viz

(i) Does an accused himself have locus-standi to move an application for grant of Pardon in terms of Section 306 Cr.P.C. or as to whether the said provisions are for the purpose of facilitating prosecution only under the limited circumstances of lack of evidence against co-accused?

(ii) Can “Pardon” in terms of Section 306 Cr.P.C. be termed as beneficial legislation for the benefit of accused as is “Pardon” granted in terms of Article 72 or Article 161 of Constitution of India?

(iii) Upon an application under Section 306 Cr.P.C. moved by prosecution being dismissed by trial Court, does the accused for whom “Pardon” is sought, have locus-standi to challenge that order?

Learned Counsel for the petitioner while contending question no. 1, placed reliance on Lt. Commander Pascal Fernades versus State of Maharashtra AIR 1968 Supreme Court 595 to which Hon’ble court observed that “Hon’ble Apex Court held that there was nothing in the Code (Cr.PC) that an application to become approver is essentially to be filed by the prosecution only. However, there are words of caution for the Magistrate and Judges to exercise such discretion.”

Learned Counsel for the petitioner further placed reliance on Jasbir Singh vs. Vipin Kumar Jaggi, 2001(3) RCR(Criminal) 818 to which Hon’ble court has quoted relevant portion of that judgment and further observed that “None of the above cited two judgments, anywhere indicates that even in cases where the prosecution has evidence, the Court is obliged to grant pardon in case any such application is moved before it.”

Further, in answer to the first question, it was observed that “The language of Section 306 Cr.P.C. and also the judgments also make it clear that the purpose of granting pardon to an accused is to facilitate the prosecution to prove its case with the help of statement of approver in addition to other evidence as may have been collected, particularly when otherwise there is some dearth of evidence.

The first question, as such, is answered accordingly partly in favour of the accused to the extent that an application under Section 306 Cr.P.C. for seeking pardon can be moved by a convict also and that any such application need not necessarily originate from the prosecution only”

While discussing question no. 2, as framed by the Hon’ble court, it was observed by placing reliance on Suresh Chandra Bahri vs. State of Punjab 1994(3) RCR(Criminal) 1, in which Hon’ble Apex Court while explaining the scope of Sec/ 306 Cr.P.C. observed that “Since many a times the crime is committed in a manner for which no clue or any trace is available for its detection and, therefore, pardon is granted for apprehension of the other offenders for the recovery of the incriminating objects and the production of the evidence which otherwise is unobtainable. The dominant object is that the offenders of the heinous and grave offences do not go unpunished.

The basis of the tender of pardon is not the extent of the culpability of the person to whom pardon is granted, but the principle is to prevent the escape of the offenders from punishment in henious offences for lack of evidence.”

Dealing with third question it was held that “Since this Court while answering question no. (i) has already held that an accused does have a right to move an application independently to the trial Court under Section 306 Cr.P.C. seeking pardon, the same would necessarily imply that any order passed by the trial Court under Section 306 Cr.P.C. by which an accused is aggrieved can be challenged by such accused by filing appropriate petition before a Higher Court. The third question stands answered accordingly.”

In view of the above, and considering the discretion applied by the learned Trial court, Hon’ble High Court did not find any reason to differ with the observations as recorded by the trial Court and dismissed the petition.

Case Title:-  Somveer Singh Vs. State of Haryana & ors.

Case no. :-   CRM-M-12838-2023 (O&M)

Order date :- 02.06.2023