Dismissed

Tipru Burma Alias Santosh Munda v. National Investigating Agency New Delhi

Jharkhand HC1 Oct 2020Cr.A(DB)/790/2019

Case brief

AI extract

What is this about?

Criminal Appeal arising out of NIA Court's dismissal of bail for an approver. Held: NIA Court exercising original jurisdiction applies Section 306 CrPC; approver in serious offence must remain in custody until trial termination per public policy.

What did the court decide?

Appellant's appeal dismissed; NIA Court's bail rejection upheld; no interference in verdict.

Tipru Burma Alias Santosh Munda Vs… — Pension and Retirement Benefits | Jharkhand HC (2020)

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Cr. Appeal (DB) No.790 of 2019

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IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Appeal (DB) No.790 of 2019

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Versus

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National Investigation Agency, New Delhi .... Respondent

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CORAM: HON’BLE MR. JUSTICE H.C. MISHRA HON'BLE MR. JUSTICE RAJESH KUMAR

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……… For the Appellant : Mr. Jitendra Shankar Singh, Advocate For the NIA : Mr. Rohit Ranjan Prasad, Advocate

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The matter was taken up through Video Conferencing. Learned counsels for the parties had no objection with it and submitted that the audio and video qualities are good.

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10/1.10.2020 Heard learned counsel for the appellant and learned counsel for the National Investigation Agency (in short NIA).

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This appeal, under Section 21(4) of the National Investigation Agency Act, 2008, arises out of the impugned order dated 6.07.2019, passed by the learned Judicial Commissioner-cum-Special Judge, N.I.A., Ranchi, (herein after referred to as the ‘NIA Court’), in Misc. Cr. Application No.698 of 2019 in Special (NIA) Case No.01 of 2017, R.C. No.11/2017/NIA/DLI, arising out of Bundu P.S. Case No.65 of 2008, dismissing the bail application of the appellant.

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The case relates to an occurrence dated 9.07.2008, when in a prize distribution function in a high school at village Bundu, the local MLA and three persons were killed, including a child of the school, in indiscriminate firings made by the extremists belonging to CPI (M) Party. Initially the police case was instituted for the offences under Sections 302 / 34 of the Indian Penal Code, read with Section 120-B of the Indian Penal Code, Sections 18, 19 and 20 of the Unlawful Activities (Prevention) Act, 1967, and Section 25(1-B) of the Arms Act. Subsequently, the case was handed over to the NIA and the matter was investigated by it, and after investigation of the case, charge-sheet has been submitted by the NIA. The appellant was apprehended, who confessed his guilt and also consented to making a full and true disclosure of the whole of the circumstances relating to the offence and about the involvement of the other culprits belonging to CPI (M) Party, by whom the offence was committed. Accordingly, the appellant has also been

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Cr. Appeal (DB) No.790 of 2019

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made approver in the case, and was tendered pardon by the NIA Court, which he voluntarily accepted.

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The appellant prayed for bail, but the NIA Court, taking into consideration the provisions under Section 306 (4) (b) of the Cr.P.C., rejected the application of the appellant by the impugned order. Hence this appeal.

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Learned counsel for the appellant has submitted that the impugned order passed by the NIA Court is absolutely illegal and cannot be sustained in the eyes of law, in as much as, the NIA Court is a Court of Session and in the present case, Section 306 of the Cr.P.C., has no application, rather the case of the appellant shall be governed by Section 307 of the Cr.P.C., in which there is no embargo as in Section 306 (4) (b) of the Cr.P.C. Learned counsel for the appellant accordingly, submitted that since the appellant has already been tendered pardon by the Court, he is entitled to be released on bail.

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Learned counsel for the NIA on the other hand has opposed the prayer and submitted that the NIA Court is the original Court and accordingly, the case of the appellant shall be governed by Section 306 of the Cr.P.C., wherein sub-Section (4) (b) provides that the person accepting the tender of pardon, if in custody, shall be detained in custody, until the termination of the trial, and as such, there is no illegality in the impugned order passed by the NIA Court, and the appeal is fit to be dismissed.

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Having heard learned counsels for both the sides and upon going through the record, we find that the relevant provisions of the Cr.P.C. are required to be taken into consideration in this case. Section 306 of the Cr.P.C., relates to tender of pardon to an accomplice, relevant portion of which reads as follows:-

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“ 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 disclosure 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.

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(2) -----------------------.

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Cr. Appeal (DB) No.790 of 2019

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

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(1) shall record—

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(a) his reasons for so doing;

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(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.

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(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.

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(5) -----------------------.”

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A plain reading of Section 306 of the Cr.P.C., reveals that it lays down the procedure to be followed while tendering the pardon when the case is pending in the original Court of trial, i.e., the Court of the Chief Judicial Magistrate or a Metropolitan Magistrate or the Magistrate of first class, as the case may be. It also clearly states that the person accepting the tender of pardon, if in custody, shall be detained in custody, until the termination of the trial.

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Section 307 of the Cr.P.C. reads as follows:-

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“ 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.”

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A plain reading of Section 307 of the Cr.P.C. shows that this provision relates to the Courts, to which the case is committed by the original Court, and this power can be exercised only after the case is committed to that Court by the Magistrate. It is also apparent from a plain reading of this provision that it separately does not lay down the detailed procedure to be followed while tendering the pardon, as has been done in Section 306 of the Cr.P.C. This section does not specifically mention about the Court of Session, rather it only refers to the Courts to which the commitment is made. However, since the cases are committed to the Court of Session by the Magistrate, it is submitted by learned counsel for the appellant that Section 307 of the Cr.P.C., relates to the Court of Session, and since the NIA Court is also a Court of

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Session, the pardon tendered by it shall be governed by Section 307 of the Cr.P.C., and not by Section 306 (4) (b) of the Cr.P.C. 11. In the present case, since this is a special offence triable before the Special Court of NIA, there is no question of commitment of the case to that Court, rather the NIA Court exercises the original jurisdiction for trial of the offence, and accordingly, the NIA Court exercises the power under Section 306 of the Cr.P.C., while tendering pardon. Even otherwise, the Court to which the commitment is made, has also to fallow the same procedure as prescribed in Section 306 of the Cr.P.C. This position is amply clear by the use of expression “ tender a pardon on the same condition to such person”, as used in Section 307 of the Cr.P.C. As such, we do not see any bar that the provisions relating to Section 306 (4) (b) of the Cr.P.C. shall not be followed by the Court to which the commitment is made, while exercising the power even under Section 307 of the Cr.P.C. However in the present case the NIA Court was exercising the dual power of the Sessions Judge as well as that of a Magistrate, and as such he was also exercising the power under Section 306 of the Cr.P.C. This position in law has been settled by the Hon’ble Apex Court in Bangaru Laxman Vs. State & Anr., reported in (2012) 1 SCC 500 , wherein the law has been laid down as follows:-

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“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

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as that of a Magistrate. Such a Special Judge conducts the proceedings under the court both prior to the filing of chargesheet as well as after the filing of charge-sheet, for holding the trial.” (Emphasis supplied).

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The aforesaid decision has again be relied upon by the Hon’ble Apex Court in its subsequent decision in P.C. Mishra Vs. State (CBI), reported in (2014) 14 SCC 629, reiterating the law as follows:-

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“15. Bangaru Laxman, therefore, emphasises 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 CrPC 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

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CrPC 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, the pardon granted by the Magistrate is not a curable irregularity.” (Emphasis supplied).

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Even otherwise, as a matter of common prudence, if a person committing a less serious offence triable by the Magistrate, and accepting the tender of pardon, if in custody, cannot be granted bail, and he has to be detained in custody until the termination of the trial, by no stretch of imagination, can it be said that the persons committing serious offences, triable by the Court of Session, can be released on bail under the similar circumstances.

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The question whether the approver accepting the tender of pardon can be released on bail or not, has been dealt with by the Hon’ble Apex Court in a famous case arising out of this State, in Suresh Chandra Bahri Vs. State of Bihar, reported in 1995 Supp (1) SCC 80 . In the said case the approver, who was an accomplice accused in the case of gruesome murder of a lady and two children, was refused bail by the Court of Magistrate granting the pardon, and also by the Court of Session, but was granted bail by the High Court. In the backdrop of these facts the law was laid down as follows:-

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“34. As regards the contention that the trial was vitiated by reason of the approver Ram Sagar being released on bail contrary to the provisions contained in clause (b) of sub-section (4) of Section 306 of the Code. It may be pointed out that Ram Sagar after he was granted pardon by the learned Magistrate by his order dated 9-1-1985, was not granted bail either by the committing Magistrate or by the learned Additional Judicial Commissioner to whose court the case was committed for trial. The approver Ram Sagar was, however, granted bail by an order passed by the High Court of Patna, Ranchi Bench in Criminal Miscellaneous Case No. 4735 of 1986 in pursuance of which he was released on bail on 21-1-1987 while he was already examined as a witness by the committing Magistrate on 30-1-1986 and 31-1-1986 and his statement in sessions trial was also recorded from 6-9-1986 to 19-11-1986. It is no doubt true that clause (b) of Section 306(4) directs that the approver shall not be set at liberty till the termination of the trial against the accused persons and the detention of the approver in custody must end with the trial. The dominant object of requiring an approver to be detained in custody until the termination of the trial is not intended to punish the approver for having come

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forward to give evidence in support of the prosecution but to protect him from the possible indignation, rage and resentment of his associates in a crime whom he has chosen to expose as well as with a view to prevent him from the temptation of saving his one time friends and companions after he is granted pardon and released from custody. It is for these reasons that clause (b) of Section 306(4) casts a duty on the court to keep the approver under detention till the termination of the trial and thus the provisions are based on statutory principles of public policy and public interest, violation of which could not be tolerated. But one thing is clear that the release of an approver on bail may be illegal which can be set aside by a superior court, but such a release would not have any affect on the validity of the pardon once validly granted to an approver. In these circumstances even though the approver was not granted any bail by the committal Magistrate or by the trial Judge yet his release by the High Court would not in any way affect the validity of the pardon granted to the approver Ram Sagar.” (Emphasis supplied).

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Taking into consideration the dominant object of requiring an approver to be detained in custody until the termination of the trial, as explained by the Hon’ble Apex Court in the aforesaid decision, we are fortified in our reasoning that if a person committing a less serious offence triable by the Magistrate, and accepting the tender of pardon, if in custody, cannot be granted bail, and he has to be detained in custody until the termination of the trial, on the same analogy and for still stronger reasons, the persons committing serious offences, triable by the Court of Session, also cannot be released on bail under the similar circumstances.

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In the facts of this case and for the reasons discussed above, we do not find any illegality in the impugned order dated 6.07.2019 passed by the NIA Court below, in Misc. Cr. Application No.698 of 2019 in Special (NIA) Case No.01 of 2017, R.C. No.11/2017/NIA/DLI, arising out of Bundu P.S. Case No.65 of 2008, rejecting the bail application of the appellant, worth any interference in the appellate jurisdiction.

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There is no merit in this appeal and the same is accordingly, dismissed.

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(H. C. Mishra, J.)

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(Rajesh Kumar, J.)

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R.Kumar

Tipru Burma Alias Santosh Munda v. National Investigating Agency New Delhi

Case brief

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Tipru Burma Alias Santosh Munda v. National Investigating Agency New Delhi

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