Allowed

Mr.Umesh Kumar I.P.S., v. The State of Andhra pradesh

Telangana HC11 Apr 2012WP/31927/2011

Case brief

AI extract

What is this about?

This judgment sets aside an order of a Metropolitan Magistrate granting pardon to an alleged accomplice. The Court held that the Magistrate lacked jurisdiction under Section 306 Cr.P.C. because the charge sheet contained no bare and bald allegations satisfying the ingredients of 'cheating' under Section 415 IPC, a prerequisite for the offence of 'forgery for the purpose of cheating' under Section 468 IPC. The pardon was quashed as the statutory conditions for exercising power under Section 306 were not fulfilled.

What did the court decide?

The order of the VI Addl. Chief Metropolitan Magistrate, Hyderabad, in Crl.M.P. No.3729 of 2011 dated 10.10.2011, granting pardon to Sri T. Sunil Reddy, was quashed.

Mr.Umesh Kumar I.P.S., Vs The State of… — Pension and Retirement Benefits | Telangana HC (2012)

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*** THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN**

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+ WRIT PETITION No.31927 OF 2011

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% Dated 11-04-2012

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# Sri Umesh Kumar IPS

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…. Petitioner Vs.

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$ The State of Andhra Pradesh

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Rep. by Dy. Superintendent of Police, CID, GOW, Hyderabad and 4 others.

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…. Respondents

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! Counsel for the petitioner: Sri Prabhakar Sripada,

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^ Counsel for respondents : GP for Home

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Addl. Advocate General

<GIST:

> HEAD NOTE:

? Citations:

1) (2002) 1 ALD (Crl.) 367 2) (2011) 9 SCC 479 3) 1986 (1) Crimes 432 (P &HC)

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4) AIR 1958 Pun 72 5) 1963(3) Crl.L.J. 547 6) 2012(1) SCC 500

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7) AIR 1968 SC 594

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8) (1851) 5 Cox Cr. Cas 507

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9) (2007) 8 SCC 559 10) AIR 1959 SC 492 11) (2007) 1 SCC 732 12) 2000 CRI.L.J.3487 13) AIR 1957 MAD 727 14) (2000) 3 SCC 161 15) 1958 SCR 1240 16) AIR 1964 SC 477 17) (2010) 2 SCC 432 18) (2003) 6 SCC 675 19) 1958 SCR 595 20) (2008) 4 SCC 451 21) (1973) 1 SCC 751

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THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION NO.31927 OF 2011

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ORDER:

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In this Writ Petition, a Writ of Certiorari is sought to quash the order of the VI Addl. Chief Metropolitan Magistrate, Hyderabad in Crl.M.P. No.3729 of 2011 in Cr. No.53 of 2011 dated 10.10.2011. 2. Facts, in brief, are that, on the basis of a complaint filed by the 1^st respondent, Crime No.53 of 2011 was registered in CID Police Station on 25.08.2011. By his complaint letter/petition dated 25.08.2011, Sri M. Malla Reddy, DSP, CID, GOW, Hyderabad requested the Addl. DGP, CID, A.P., Hyderabad to order for necessary criminal action against Sri T. Sunil Reddy and others who had conspired together to commit the offence of forgery, using false documents as genuine etc., as per law. The said complaint letter of Sri M. Malla Reddy dated 25.08.2011 was the basis of FIR No.53 of 2011 dated 25.08.2011 for offences under Sections 471, 468 and 120-B I.P.C. Sri T. Sunil Reddy and two others, shown as accused in the said complaint, are alleged to have secured certified copies of registered documents by filing search applications in the names of third parties, forging their signatures with the ulterior motive of maligning a senior police officer; they had created a false representation in the name of a fictitious person i.e., one Sri Tejavath Ramulu Naik, organizing secretary of the All India Banjara Seva Sangham, Rangareddy District, and a false covering letter dated 22.04.2011 purported to have been written by Sri M.A. Khan, MP

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(Rajya Sabha), for enquiry into the matter alleged in the representation; Sri M.A. Khan had informed that no such letter was addressed by him at any point of time, and the signature did not belong to him; during the course of enquiry at the sub-registrar’s offfices at Maheshwaram, Champapet and Medchal, it was revealed that one Lokesh, a document writer at Champapet SRO, had applied for certified copies, and had collected about 30 certified copies of registered documents; on examination, Sri D. Lokesh stated that he had obtained certified copies of registered documents at the instance of Sri N. Sharath Reddy, a childhood friend; upon enquiry Sri Sharath Reddy stated that he had acted on the instructions of his distant relative Sri T. Sunil Reddy who, in turn, revealed that, on the instructions of a Senior Officer, he had collected certified copies of the registered documents with the help of the said Lokesh and Sharath. On his being examined, Sri R. Ramavath Roop Singh stated that he did not lodge any such complaint against any of the officers, and there was no organizing secretary in the name of Tejavath Ramulu Naik; the Secretary, Gram Panchayat, Shamshabad informed in writing that no house bearing Door No.2-34/A is in existence in the village; these facts reveal that Sri T. Sunil Reddy, with a malafide intention, had collected certified copies of registered documents from the subregistrar’s offices at Maheswaram, Champapet and Medchal; he had also created a false representation in the name of Tejavath Ramulu Naik, organizing secretary of the All India Banjara Seva Samithi, and a false covering letter in the name of Sri M.A. Khan, MP (RS) by forging his signature on his letter head; the forged letter was forwarded to the Union Government; on careful observation it was visible to the naked eye that the alleged forged signature of Sri M.A. Khan, on the alleged covering letter, had a striking similarity with the original signature of Sri

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T. Sunil Reddy; the enquiry revealed a prima facie case of forgery, using false documents as genuine knowing it to be false, and conspiracy to do an illegal act; and true facts would come out during the course of regular investigation.

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3. Sri T. Sunil Reddy was arrested on 26.08.2011, and remanded to police custody. His confession was recorded on 27.08.2011 and 03.09.2011. Sri T. Sunil Reddy (respondent No.4 herein) filed a petition under Section 306 Cr.P.C. on 07.09.2011, (numbered as Crl.M.P. No.3729 of 2011), which the prosecution did not oppose. The Learned VI Additional Chief Metropolitan Magistrate passed an order on 10.10.2011 granting pardon to Sri T. Sunil Reddy. Even before pardon was granted to him on 10.10.2011, a memo was filed in the Court on 24.09.2011 to array the petitioner as the 4^th accused. On 14.11.2011 a charge sheet was filed in the Court under Sections 468, 471, 120-B and 201 IPC.

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4. Elaborate submissions, both oral and written, were made by Sri Prabhakar Sripada, Learned Counsel for the petitioner, the Learned Additional-Advocate General appearing for the 1^st and the 7^th respondents, and Sri C. Padmanabha Reddy, Learned Senior Counsel appearing on behalf of the 4^th respondent.

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5. In support of his submission that the order of the Learned Magistrate, in Crl.M.P. No.3729 of 2011 in Crime No.53 of 2011 dated 10.10.2011, should be quashed, Sri Sripada Prabhakar, Learned Counsel for the petitioner, would submit that granting pardon under Section 306 Cr.P.C. is a judicial act; the Learned Magistrate had granted pardon merely on the application of Sri T. Sunil Reddy (the 4^th respondent), which request was supported by the prosecution; the Learned Magistrate erred in granting pardon to a person who had, allegedly, forged the signature of a Member of Parliament, and who

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was described by the Addl. DGP, CID, in his letter dated 22.8.2008, as the king-pin in the whole transaction; when a case of forgery is filed, pardon cannot be granted to the very person who is said to have forged the signature; it is only the person, said to be the least guilty amongst the several accused, who can be granted pardon, and not the person who had actively participated in the commission of the offence; Section 306 would apply only where the offences involved are punishable with imprisonment which may extend to seven years or more; among the offences mentioned in the FIR, and the charge sheet, it is only Section 468 IPC which prescribes imprisonment of upto 7 years; neither the prosecution nor the approver, in any of the affidavits/statements/documents placed before the Learned Magistrate, had stated who the victim of “cheating” was or whether he had suffered, or was likely to suffer, damage to his body, mind reputation or property; even the word ‘cheating’ has not been used in any of the aforesaid statements/documents/affidavits; as the ingredients of “cheating” as defined under Section 415 IPC, which forms the basis of the offence of “forgery for the purpose of cheating” under Section 468 IPC, is not even alleged, the petition seeking pardon under Section 306 Cr.P.C could not have been entertained; all the allegations, taken at face value, do not even state as to who was cheated, let alone state that such a person had suffered, or was likely to suffer, damage to his body, mind, reputation or property; the Learned Magistrate could not, therefore, have entertained the request for grant of pardon in respect of an alleged offence which has not even feebly been demonstrated to have been committed; none of the documents relied upon by the prosecution i.e., FIR, remand report, confession statement, statement of the approver, charge sheet etc, refer either to the name or the description of the victim or the manner in which the

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victim was cheated; introduction of Section 468 IPC in the FIR was only with the object of planting an approver; the Learned Magistrate blindly accepted the version of the prosecution that the accused had committed the offence under Section 468 IPC, without even ascertaining whether the documents placed for his perusal even allege that any person was “cheated” and, if so, what was the nature of “cheating”; the Learned Magistrate ought to have rejected the request for pardon as the approver had neither spelt out the actual act of “cheating” nor did he identify the victim; the complaint in Cr. No.53 of 2011 was an abuse of the process of law; the complaint was lodged at the behest of, and under the directions of, respondent No.5 (Sri V. Dinesh Reddy – Director General of Police) as it was he who had, by his memo dated 24.08.2011, ordered registration of the FIR; the court below erred in conducting proceedings in camera; the court below did even notify the petitioner regarding an application being filed under Section 306 Cr.P.C, even though the petitioner was arrayed as an accused before the court on 24.09.2011; the court below erred in denying the petitioner an opportunity to cross-examine the approver; the Court below failed to notice that Sri T. Sunil Reddy had changed his version several times; his confession statement in police custody on 27.08.2011 was different from his subsequent confession statement dated 03.09.2011; similarly the affidavit filed by him, in Crl.M.P. No.3729 of 2011, was again different; there were marked improvements in his statements from time to time; the court below erred in granting pardon to Sri T. Sunil Reddy without either examining his conduct or the impact of granting pardon to a self-confessed prime offender; the order of the court below is without jurisdiction; existence of an alternative remedy of revision, under Section 397 Cr.P.C, is not a bar for filing this Writ Petition challenging the order passed under

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Section 306 Cr.P.C; the petitioner was framed and hounded by the prosecution at the behest of Sri V. Dinesh Reddy, IPS; and the petitioner has rendered 34 years of spotless service, and is being subjected to humiliation and harassment at the pinnacle of his career. 6. On the other hand, Learned Additional Advocate General would submit that both in his petition seeking pardon, and in the affidavit filed in support thereof, Sri T. Sunil Reddy (the 4^th respondent) had made a true and full disclosure of facts relating to the commission of the offence; while considering such an application, all that has to be examined is whether or not the object for which the Section has been incorporated would be fulfilled by the grant of pardon as sought for by the accused, and as supported by the prosecution; the Magistrate is required to consider if, but for the grant of pardon, it would be possible to bring home the guilt of the accused; in the instant case the 4^th respondent is the only person who can speak of the involvement of the petitioner, and that the entire offence was committed at his instance; no other material was available at the time when the application under Section 306 Cr.P.C. was considered; in the absence of evidence, and the confession of the 4^th respondent, the material on record at that stage may not have sufficed to bring home the guilt of the petitioner; the conspiracy was hatched by the petitioner who was the ultimate and only beneficiary thereof; at the stage of granting pardon, under Section 306 Cr.P.C, it is neither possible nor desirable for the Learned Judge to return a finding whether the ingredients of a particular offence, including Section 468 IPC, are satisfied or not; the facts narrated in the affidavit filed by the 4^th respondent would show that documents had been forged; they had been dishonestly used for the purpose of obtaining wrongful gain or, at any rate, causing wrongful loss to the 5^th

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respondent; this was sufficient for the Learned Judge to come to the conclusion that pardon could be granted; at that stage the Learned Judge would not return a finding whether or not the charges are proved conclusively; the question whether the Learned Judge has jurisdiction, and whether such jurisdiction can be exercised only if the conditions stipulated under Section 306(2)(b) are satisfied, cannot also be scrutinized in certiorari proceedings; on the basis of the allegations in the FIR/charge sheet, it is for the Magistrate to decide whether a charge relating to an aggravated form, or a simple form, of forgery, should be framed; at the stage of considering the application under Section 306 Cr.P.C, it would not be appropriate for the Magistrate to go into these questions, more so as Section 468 IPC is included in the charge sheet; it would not be appropriate for the Learned Magistrate to examine whether the ingredients of the charge levelled against the accused are fulfilled or not; the Learned Magistrate, while dealing with the application for grant of pardon, must examine the facts of each case, and no hard and fast rule can be prescribed therefor; while in police custody Sri T. Sunil Reddy confessed that he had forged the signature of Sri M.A. Khan, and had collected certified copies of the purchase and sale of land by the wife of Sri V. Dinesh Reddy; Sri T. Sunil Reddy filed a petition seeking pardon on turning approver; he volunteered to make a true disclosure of facts; in support of his petition he filed an affidavit relating to the facts of the case, and disclosed the involvement of the petitioner in the conspiracy; this deposition of Sri T. Sunil Reddy was helpful in unravelling the plan and modus operandi; taking an overall view of the matter and, since his confession would strengthen the case in so far as the offence of conspiracy was concerned, the investigating agency filed a statement accepting the offer of Sri T. Sunil Reddy; grant of pardon was only in the interest of

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justice, and does not necessitate interference by this Court in exercise of its extra-ordinary jurisdiction; the discretion conferred on the learned Magistrate has not been abused or misused; it is not correct to state that the intention of the prosecution was only to frame the petitioner, tarnish his reputation, and prevent him from being considered for the post of DGP; the object and purpose of examining the person, (accepting tender of pardon), as a witness is limited; the proceedings which take place before the Magistrate, at that stage, is neither an enquiry nor a trial; the phrase ‘examination of a witness’ does not necessarily mean examination and cross-examination of that witness; at the stage of investigation or enquiry into an offence, the accused cannot claim any right under law to cross-examine the witness; the right of cross-examination would only arise at the time of trial; the accused has no right to cross-examine the approver twice, i.e., once before committal, and the other at the time of trial; the exercise of power to grant pardon is on condition that such person makes a full and true disclosure of all facts within his knowledge relating to the offence, and regarding every other person concerned whether as a principal or abettor in the commission thereof; minor discrepancies in the evidence of a witness need not be considered by the Court, more so as a parrot like narration is difficult to believe; the present case does not involve committal proceedings, and the case is only made over to the Chief Metropolitan Magistrate; this is a case where, but for grant of pardon, the offences charged against the petitioner cannot be brought home; this Court should not exercise its discretion to grant relief to the petitioner; the power of judicial review cannot, simultaneously, be invoked by the petitioner, who has also filed a criminal petition under Section 482 Cr.P.C. on similar set of facts, though the main prayer is slightly different; the discretionary relief under Article 226 would not be

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available to the petitioner in view of these facts and circumstances. 7. Sri C. Padmanabha Reddy, Learned Senior Counsel appearing on behalf of Sri V. Dinesh Reddy, IPS (fifth respondent), would submit that the offence under Section 468 IPC is made out prima facie; the Magistrate was justified in exercising his jurisdiction at the stage of investigation as grant of pardon would benefit ends of justice, and help the prosecution to bring the real offender to book; at that stage even the petitioner (A-3) was not made an accused, and the FSL report was not available; it was wholly unsafe for the prosecution to take up the matter against a senior officer of the Police Force without substantial evidence; at that stage the confession of Sri T. Sunil Reddy (A-1), (as recorded by the Magistrate), was essential to test whether the petitioner was directly or indirectly involved in the alleged offences or not; a mere reading of the impugned order shows that the Magistrate has given good and cogent reasons for grant of pardon relying on the established law, and the guidelines set out by this Court; at the investigation stage, while exercising powers under Section 306 Cr.P.C. at the time of recording of a statement of one of the accused, the question of permitting the other accused to cross-examine him does not arise; even if it is found that the order passed by the Magistrate is irregular, the proceedings would not be vitiated as Section 460(g) Cr.P.C. includes, among the irregularities which would not vitiate proceedings, an order under Section 306 Cr.P.C also. 8. In his order, in Crl.M.P. No.3729 of 2011 in Cr. No.53 of 2011 dated 10.10.2011, the Learned VI Additional Chief Metropolitan Magistrate, Hyderabad observed that no evidence was adduced either on behalf of Sri T. Sunil Reddy or the prosecution; the Senior Additional Public-prosecutor had contended that granting pardon would help the prosecution to prove the case against the petitioner as

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there was no other evidence on record; the Crime was registered for offences punishable under Sections 468, 471 and 120-B IPC; Sri T. Sunil Reddy was shown as A-1, and A-2 and A-3 were shown as absconding; Sri T. Sunil Reddy (A-1) was produced on 27.08.2011 for remand, and his custody to police was obtained; later he was released on bail; he then filed the petition and an affidavit; basing on his petition and affidavit, and also his confession, the investigating officer had filed a memo to include the petitioner as A-4; the allegations were that, at the behest of the petitioner-Sri Umesh Kumar, IPS, a forged letter was sent to the Union Government making allegations against the present Director General of Police; and Sri T. Sunil Reddy had also filed a separate affidavit disclosing details of the manner in which the offences were committed, and the motive for the same.

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9. The Learned Magistrate observed that, from the judgment in

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Kanajeti Raja Babu v. State of A.P^[1] , it was clear that it was not only the prosecution but also the accused who could make an application of this nature; at that stage it could not be stated whether the evidence of Sri T. Sunil Reddy (A-1) was weak or strong; the petitioner had shown his readiness to make a full and true disclosure; and the prosecution had joined his request by filing a statement expressing no objection for pardon being granted to Sri T. Sunil Reddy in order to strengthen its case; the prosecution had stated that, in view of the conspiracy alleged and the secrecy regarding the commission of offence by Sri T. Sunil Reddy and Sri Umesh Kumar, IPS, the evidence of Sri T. Sunil Reddy had to be relied on by them; the prosecution had alleged that Sri Umesh Kumar had committed the offence with the motive of getting the benefit of promotion to the highest post, and he had lured Sri T. Sunil Reddy offering him some benefits; according to the prosecution, the name of Sri Umesh Kumar

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had come out in the confession of Sri T. Sunil Reddy in police custody; all the conditions for granting pardon were satisfied in this case; Section 306 Cr.P.C. empowered the Court to grant conditional pardon; there was sufficient reason to grant pardon to Sri T. Sunil Reddy as he had showed his readiness to make a full and true disclosure of facts, and it appeared to be voluntarily; more over the prosecution had joined his request, and had stated that it would strengthen and advance its case; and the Court did not find any reason not to consider his request with conditions. The Learned Magistrate, while holding that it was just and necessary to grant conditional pardon in the interest of and to meet the ends of justice, directed that Sri T. Sunil Reddy be granted pardon after ascertaining whether he accepted pardon or not on certain conditions. The Learned Magistrate also recorded that Sri T. Sunil Reddy had stated that he was accepting the pardon granted with the said conditions.

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10. Section 306 Cr.P.C., empowers the Magistrate to tender pardon to an accomplice on condition of his making a full and true disclosure of the entire circumstances within his knowledge relative to the crime. An accomplice, who has been granted pardon under Section 306 or Section 307 of the Code, gets protection from prosecution. Once an accused is granted pardon under Section 306, he ceases to be an accused and becomes a witness for the prosecution. (Mrinal Das v.

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State of Tripura^[2] ) . Larger questions involving the interest of the State are involved when a Court embarks upon granting pardon to an accomplice. It is, in substance and in fact, a contract between the State on the one hand and a person to whom it is granted on the other. A pardon, in the context, has been defined as an act of grace which exempts the individual on whom it is bestowed from the punishment the law inflicts for a crime he has committed. The grant of pardon

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carries an imputation of guilt and, in acceptance thereof, confession of it. If this be the essence of the power, it would seem that it has to be very sparingly and cautiously exercised when it is otherwise the fundamental duty of the State to try offences and punish the guilty. It is only in exceptional cases that this function is surrendered in favour of receiving evidence from an accomplice against his guilty associates. Nevertheless pardon should not, and cannot, be easily available to an accomplice on his mere askance or even on the readiness of the Court to have more evidence, qualitative or quantitative in nature. Exercise of the power to tender pardon rests on judicial discretion, and the Magistrate should proceed with great caution on sufficient grounds recognising the risk which the grant of pardon involves of allowing an offender to escape just punishment at the expense of the other accused. The power to grant pardon to an accomplice should be regulated by the Court or the Magistrate. Such power should be exercised only in exceptional cases and one such case can be that, but for the evidence of the accomplice, it would otherwise not be possible to bring the guilt home to the other accused. (Bhup Singh v. The State of Haryana^[3] ; A.L. Mehra v. The State^[4] ; Kashinath Krishan Bapat v. The State of Mysore^[5] ) . The power of granting pardon prior to the filing of the charge-sheet, as in the instant case, is within the domain of judicial discretion of the Magistrate before whom such a prayer is made. The power to grant pardon is contemplated in situations where a serious offence is alleged to have been committed by several persons, and with the aid of the evidence of the person, who has 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

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purpose is to prevent failure of justice by allowing the offender to escape from a lack of evidence. (Bangaru Laxman v. State (through CBI )^[6] ) .

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11. Before the Magistrate acts to tender pardon, he must 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. 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. 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. (Lt. Commander Pascal Fernandes v. State of Maharashtra^[7] ; Reg. v. Robert Dunne^[8] ; Konajeti Rajababu¹ ).

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12. The judgment of the Supreme Court, in Lt. Commander Pascal Fernandes⁷ ), on the scope of Sections 337 and 338 of the Criminal Procedure Code, 1898 and Section 8(2) of the Criminal Law Amendment Act, 1952, was distinguished in a later judgment of the Supreme Court in Bangaru Laxman⁶ , and it was held:-

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“………..Apart from that, the questions which fell for consideration in Lt. Commander Pascal Fernandes v. State of Maharashtra are: (a) the difference between Sections 337 and 338 of the old Code and Section 8(2) of the Criminal Law Amendment Act; (b) that the power of the 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 the Special Judge had not exercised his discretion properly in the case.

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None of the above considerations are relevant in the present case.

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Therefore, the said decision does not render any assistance to the appellant in connection with the points which have been urged on his behalf……..”

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13. As the provisions of Sections 337 and 338 of Criminal Procedure Code, 1898 (1898 Code) fell for consideration before the Supreme Court, in Lt. Commander Pascal Fernandes⁷ , it is useful to read Sections 306 and 307 of the Code of Criminal Procedure, 1973 in juxta-position with Sections 337 and 338 of the Code of Criminal

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Procedure, 1898:

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Code of Criminal Procedure 1973 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	Code of Criminal Procedure, 1898 337 (1)In the case of any offence triable exclusively by the High Court or Court of Session, or any offence punishable with imprisonment which may extend to seven years or any offence under any of the following sections of the Indian Penal Code (45 of 1860), namely section (161, 165, 165A) 216A, 369, 401, 435 and 477A,the District Magistrate, a Presidency Magistrate, a Sub-Division Magistrate or any Magistrate of the First Class may, at any stage of the investigation or inquiry into the trial of the offence, with a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in or privy to the offence, tender a pardon to such person on condition of his
principal or abettor, in the commission thereof.	making a full and true disclosure of the whole of the circumstances within his knowledge relative to the
(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);	offence and to every other person concerned, whether as principal or abettor, in the commission thereof. Provided that, where the offence is under inquiry or trial, no Magistrate of the first class other than the District
( b ) any offence punishable with imprisonment which may extend to	Magistrate shall exercise the power hereby conferred unless he is the
seven years or with a more severe sentence.	Magistrate making the inquiry or holding the trial, and, where the offence is under investigation, no such Magistrate shall
(3) Every Magistrate who tenders a pardon under sub-section (1) shall record-	exercise the said power unless he is a Magistrate having jurisdiction in a place where the offence might be inquired into
(a) his reasons for so doing; (b) whether the tender was or was not	or tried and the sanction of the District Magistrate has been obtained to the

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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 in the subsequent trial, if any; (b) shall, unless he is already on bail, be detained in custody until the termination of the trial.	exercise thereof. (IA) Every Magistrate who tenders a pardon under sub-section (1) shall record his reasons for so doing, and shall, on application made by the accused, furnish him with a copy of such record. Provided that the accused shall pay for the same unless the Magistrate for some special reason thinks fit to furnish it free of cost. (2) Every person accepting a tender under this section shall be examined as a witness in the Court of the Magistrate taking cognizance of the offence and in the subsequent trial, if any. (2A) In every case where a person
(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.	has accepted of pardon and has been examined under sub-section (2), the Magistrate before whom the proceedings are pending shall, if he is satisfied that there are reasonable grounds for believing that the accused is guilty of an offence, commit him for trial to the Court of Session or High Court, as the case may be. (2B) In every case where the offence is punishable under Section 161 or Section 165 or Section 165A of the Indian Penal Code (45 of 1860) or sub- section (2) of Section 5 of the Prevention of Corruption Act, 1947 (2 of 1947), and where a person has accepted a tender of pardon and has been examined under sub-section (2), then; notwithstanding anything contained in sub-section (2), a Magistrate shall, without making any further inquiry, send the cases for trial to the Court of Special Judge appointed under the Criminal Law Amendment Act, 1952. (3) Such person unless he is already on bail, shall be detained in custody until the termination of the trial.

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

exercise thereof.
(IA) Every Magistrate who tenders
a pardon under sub-section (1) shall
record his reasons for so doing, and
shall,
on application made by the
accused, furnish him with a copy of
such record.
Provided that the accused shall pay
for the same unless the Magistrate for
some special reason thinks fit to furnish
it free of cost.
(2) Every person accepting a tender
under this section shall be examined as
a witness in the Court of the Magistrate
taking cognizance of the offence and in
the subsequent trial, if any.
(2A) In every case where a person

(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.

has accepted of pardon and has been
examined
under sub-section (2), the
Magistrate
before
whom
the
proceedings are pending shall, if he is
satisfied that there are reasonable
grounds for believing that the accused
is guilty of an offence, commit him for
trial to the Court of Session or High
Court, as the case may be.
(2B)
In every case where the
offence is punishable under Section 161
or Section 165 or Section 165A of the
Indian Penal Code (45 of 1860) or sub-
section
(2)
of Section
5
of
the
Prevention of Corruption Act, 1947 (2 of
1947),
and
where
a person
has
accepted a tender of pardon and has
been examined under sub-section (2),
then;
notwithstanding
anything
contained
in
sub-section
(2), a
Magistrate shall, without making any
further inquiry, send the cases for trial
to the Court of Special Judge appointed
under the Criminal Law Amendment Act,
1952.
(3)
Such person unless he is
already on bail, shall be detained in
custody until the termination of the trial.

¶51

307:Power to direct tender of pardon	338. At any time after commitment,
At any time after commitment of a case	but before judgement i s passed, the
but before judgment is passed, the	Court to which the commitment is made
Court to which the commitment is made may, with a view to obtaining at the trial	may with the view of obtaining on the trial the evidence of any person
the evidence of any person supposed to have been directly or indirectly	supposed to have been directly or indirectly concerned in, or privy to, any
concerned in, or privy to, any such offence, tender pardon on the same	such offence, tender, or order the committing Magistrate or the District
condition to such person.	Magistrate to tender, a pardon on the same condition to such person.

¶52

14. It is clear, from the aforesaid table, that Section 306(1) & (2) of the Criminal Procedure Code, 1973 (1973 Code) is similar to Section 337 (1) of the 1898 Code, and Section 306(3)(a) of the 1973 Code is similar to Section 337(1A) of the 1898 Code. Unlike, in Bangaru Laxman⁶ , the limitations on the exercise of power conferred on the Magistrate to tender pardon, under Section 306(1) Cr.P.C., in view of the restrictions placed under Section 306(2)(a)&(b) of the 1973 Code, arises for consideration in the present case. As Section 306(1) of the 1973 Code is similar to Section 337 (1) of the 1893 Code, the contention that no reliance can be placed on Lt. Commander Pascal Fernandes⁷ , wherein the scope of the power conferred on a Magistrate to tender pardon was examined, is not tenable. 15. The power conferred on the Magistrate to tender pardon, under Sections 306 and 307 Cr.P.C, is to obtain the evidence of an accomplice so as to facilitate conviction of others. A wide power has been conferred on the Magistrate to tender a conditional pardon to a particular person with a view to obtaining the evidence of that person in support of the charge against the other accused therein. Under sub-section (3) of S. 306, the Court is expected to record its reasons for tendering such pardon, and should further

¶53

record the factum of acceptance of the person to whom pardon was tendered, albeit with conditions. The necessity to examine an accomplice depends upon the facts of each case, and no hard and fast rule can be prescribed therefor. Adequacy or otherwise of the evidence to bring home the guilt to the accused affords a reasonable ground so as to conclude whether the discretion conferred on the Court can be exercised or not, and affords a reason to support a judicious exercise of the discretion. (Konajeti Rajababu¹ ).

¶54

16. The power conferred by Section 306 Cr.P.C., on the Magistrate, to grant pardon is circumscribed by the conditions prescribed in the said Section itself, and under Section 307 Cr.P.C. As is evident from sub-section (2) thereof, Section 306 Cr.P.C. 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; and (b) any offence punishable with imprisonment which may extend to seven years or with a more severe imprisonment. It is not as if the offences in Cr. No.53 of 2011 were triable exclusively by the Court of Session or by the Court of a Special Judge appointed under the Criminal Law Amendment Act, 1952. As such it is only if the offence, of which the accused in Cr. No.53 of 2011 were charged, is punishable with imprisonment which may extend to seven years or more could the power to tender pardon, to an accomplice, have been exercised.

¶55

17. Pardon is tendered to an accomplice to unravel the truth in a grave offence so that guilt of the other accused, concerned in the commission of such a crime, could be brought home. The object of Section 306 Cr.P.C. is to allow pardon in cases where a heinous offence is alleged to have been committed by several persons so that, with the aid of the evidence of the person granted pardon, the offence

¶56

may be brought home to the rest. (Mrinal Das² ). The Legislature, in its wisdom, has chosen to restrict the power to grant pardon only to grave and heinous offences for which the prescribed sentence is imprisonment for seven years or more. As Section 306 Cr.P.C. has no application to offences punishable with imprisonment for a period less than seven years, the concerned Magistrate cannot tender pardon, under sub-section (1) of Section 306 Cr.P.C, to those accused of committing such offences. It is, therefore, imperative for the Magistrate, whose jurisdiction to grant pardon under Section 306 Cr.P.C. is invoked, to peruse the complaint/charge sheet as the case may be; the affidavit filed in support of the petition seeking pardon; the affidavit, if any, filed by the prosecution; and the confession statement made on oath by the person seeking pardon; to satisfy himself that the foundational facts, (even basic facts may suffice), are laid regarding commission of offences for which the punishment liable to be imposed is seven years or more, for it is only if the complaint/charge sheet contains an allegation attracting the ingredients of such an offence, can the Magistrate exercise his jurisdiction, under Section 306 Cr.P.C., to tender pardon to the accomplice. The fact or facts upon which the jurisdiction of an authority depends is a “jurisdictional fact” the existence of which is the sine qua non, or the condition precedent, to the assumption of jurisdiction by the authority. (Carona Ltd. v. Parvathy Swaminathan & Sons^[9] ; Halsbury’s Laws of England (4th Edn.), Vol.1, Para 55, p.61; Reissue, Vol.1(1), Para 68, pp.11415; Chaube Jagdish Prasad v. Ganga Prasad Chaturved i^[10] , Arun Kumar vs. Union of India^[11] ) .

¶57

18. The Legislature, in its wisdom, has classified forgery into different categories, and has prescribed different punishments for such

¶58

offences. While a severe punishment is prescribed for some forms of forgery, for others a lesser punishment is stipulated. The punishment prescribed for “forgery of the record of Court or of public registers” under Section 466 IPC, and “forgery for the purpose of cheating” under Section 468 IPC, is imprisonment for a term which may extend to seven years. The punishment prescribed for “forgery of valuable Security, Will etc.”, under Section 467 IPC, is imprisonment for life or with imprisonment for a term which may extend to ten years. On the other hand, the punishment for “forgery” under Section 463 IPC and “using as genuine a forged document” under Section 471 IPC is imprisonment for a term which may extend to two years, and for “forgery for the purpose of harming reputation” under Section 469 IPC the prescribed punishment is imprisonment which may extent to three years. While the Magistrate can exercise his power to tender pardon under Section 306 Cr.P.C. for “forgery of record of Court or of public register etc.” under Section 466 IPC; for “forgery of valuable Security, Will etc.,” under Section 467 IPC and “forgery for the purpose of cheating” under Section 468 IPC; he cannot, in view of Section 306(2)(b), exercise his power to tender pardon where the offence alleged is “forgery” under Section 463 IPC; “forgery for the purpose of harming reputation” under Section 469 IPC; or “for using as genuine a forged document” under Section 471 IPC.

¶59

19. In the case on hand, the offences referred to in the complaint (Crime No.53 of 2011) are Sections 471, 468, and 120-B IPC. It was only after pardon was tendered to the fourth respondent herein (Sri T. Sunil Reddy) was the charge sheet filed on 14.11.2011, including therein the offence under Section 201 IPC. The offence under Section 471 IPC is punishable under Section 465 IPC with imprisonment of

¶60

either description for a term which may extend to two years, or with fine, or with both. The punishment prescribed for criminal conspiracy under Section 120-B(1) IPC is in the same manner as if the accused had abetted the offence and, under sub-section (2), imprisonment of either description for a term not exceeding six months or with fine or with both. The punishment prescribed for causing disappearance of evidence of offence under Section 201 IPC is, if the offence is punishable with less than ten years, punishment for a term which may extend to one fourth part of the longest term of the offence or with fine or with both. It is evident that, but for Section 468 IPC, (the punishment prescribed for which is imprisonment of either description for a term which may extend to seven years and fine), the Magistrate could not have exercised his power to tender pardon, under Section 306 Cr.P.C., to Sri T. Sunil Reddy (A-1). The Learned Magistrate was, therefore, required to satisfy himself that the documents placed before him contained an allegation, (even if it be a bare and bald allegation), attracting the ingredients of Section 468 IPC for, if the compliant merely refers to Section 468 IPC as among the offences committed by the accused, but does not contain even a bare and bald allegation attracting the ingredients of the said Section, it would reveal that it is not even the case of the complainant in Cr. No.53 of 2011 that the accused have committed the offence of “forgery for the purpose of cheating” under Section 468 IPC. In such a situation, and in view of the bar under Section 306(2)(b) Cr.P.C, the Magistrate would not be justified in tendering pardon to the accomplice. 20. Sri Prabhakar Sripada, Learned Counsel for the petitioner, would assert, not without justification, that, let alone the factual foundation being laid, neither the documents placed before the Learned Magistrate nor the impugned order make any mention of even

¶61

the word “cheating”. A perusal of the impugned order reveals that the Learned Magistrate has not even examined this aspect. Section 306(3)(a) Cr.P.C. requires every Magistrate, who tenders pardon, to record his reasons for doing so. This requirement is stipulated to ensure that the Magistrate applies his mind to the material placed before him and, only if he is satisfied that the requirements of subsections (1) and (2) of Section 306 Cr.P.C, and Section 307 Cr.P.C, are satisfied, can he exercise his power of tendering pardon to an accomplice; record his reasoned opinion of the provisions of Section 306 & 307 being complied with; and then pass an order assigning reasons therefor.

¶62

21. The essential ingredients of Section 468 IPC are (i) that the accused committed forgery; and (ii) that he did so intending that the document forged shall be used for the purpose of “cheating”. The ingredients of “cheating” under Section 415 IPC are (i) the accused had deceived another person; (ii) the accused intentionally induced the person so deceived to do something which he would not do, or omit to do if he were not so deceived; and (iii) such act or omission was such as to cause, or was likely to cause, damage or harm to the person deceived in body, mind, reputation or property. Any person who intentionally induces a person so deceived to do or omit to do anything, which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to “cheat”. While the first part of the definition of “cheating” in Section 415 IPC relates to property, the second part does not necessarily relate to property. The second part speaks of intentional deception which must be intended not only to induce the person deceived to do or omit to do something, but also to cause damage or harm to that person in body, mind, reputation or property. The intentional deception

¶63

presupposes the existence of a dominant motive of the person making the inducement. Such inducement should have led the person deceived or induced to do or omit to do anything which he would not have done or omitted to do if he were not so deceived. The further requirement is that such act or omission should have caused damage or harm to body, mind, reputation or property. (G.V. Rao v. L.H.V. Prasad^[12] ; Kandaswami Gounder v. State of Tamil Nadu^[13] ) . In so far as the second part of Section 415 is concerned, “property” is not involved at any stage. Here it is the doing of an act or omission to do an act by the deceived, as a result of intentional inducement by the accused, which is material. Such inducement should result in the doing of an act, or the omission to do an act, as a result of which the person deceived should have suffered or was likely to suffer damage or harm in body, mind, reputation or property. (Kandaswami Gounder¹³ ). While the Magistrate may not be justified in making a detailed analysis of the material placed before him, and record a conclusive finding whether or not an offence under Section 468 IPC has been established; he would, nonetheless, be required to satisfy himself that the material placed before him contains atleast a bald and bare allegation attracting the ingredients of “cheating” under Section 415 IPC in which event alone can the accused in Crime No.53 of 2011 or in

¶64

C.C. No.555 of 2011 (renumbered as C.C. No.846 of 2011), including Sri T. Sunil Reddy (A-1) be said to have committed the offence of “forgery for the purpose of cheating” under Section 468 IPC. 22. The legislative object of restricting the power of tendering pardon to an accomplice, only in cases of grave and serious offences, where the punishment liable to be imposed is imprisonment which may extend to seven years or more, is to ensure that a person, albeit an

¶65

accomplice, who is accused of the offence is not let off scot free, and avoid being tried for the less serious offences which he is alleged to have committed. This provision enables the prosecution, in the absence of any other evidence, to obtain full and complete information from an accomplice, of the circumstances relating to the offence, as a trade-off for his being tendered pardon. The provision has been inserted only to ensure that those who are guilty of grave and heinous offences are not let off and, even if one of the accused is granted pardon and is absolved of being convicted of the offence, his evidence would enable the prosecution to secure the conviction of others involved in such offences. The power under Section 306 Cr.P.C. is not to be exercised as a matter of course, or to let off those guilty of offences punishable with imprisonment for a period of less than seven years. The allegations in the charge sheet, if accepted as true, would show that it was Sri T. Sunil Reddy (the fourth respondent herein) who had forged the letter sent in the name of Sri M.A. Khan MP; and was also involved in the conspiracy to commit the offence under Section 471 IPC. The Addl. DGP-CID, by his letter dated 22.08.2011, informed Sri V. Dinesh Reddy DGP (the 5^th respondent herein) that the enquiry report revealed that Sri T. Sunil Reddy (A-1) (the respondent herein) was the king-pin in the whole transaction. But for Section 468 IPC being included in the complaint/charge sheet, Sri T. Sunil Reddy (Accused No.1) would also have been tried for the offences under Section 471 and 120-B IPC, along with the other accused. Except in cases specified under Section 306 (2)(b) Cr.P.C, there would be no justification in absolving an accomplice who is alleged to have actually “forged” a document, besides conspiring with others to “use as genuine a forged document”.

¶66

23. As held by this Court, in its order in Crl.P. No.12791 of 2011, let

¶67

alone laying the factual foundation on how their mind or reputation had either been damaged or was likely to be damaged, the charge sheet and the documents annexed thereto do not even contain a bare and bald allegation that either the mind or the reputation of the Secretary/Joint Secretary, Ministry of Home Affairs or the State of A.P. had either been damaged, or was likely to be damaged, by the act of the Joint Secretary in addressing a letter to the Chief Secretary, Govt. of A.P., believing the forged letter to have been addressed by Sri M.A. Khan, M.P; Section 415, which defines “cheating”, requires the person who was deceived to do an act, (which he would not have done, if he were not so deceived), to suffer damage, or likely to suffer damage, to his mind or reputation; it is not even alleged in the charge sheet that Sri V. Dinesh Reddy IPS had done an act which he would not have done if he had not been deceived, the only person who had done an act, on having been deceived by the petitioner, was the Joint Secretary, Ministry of Home Affairs, New Delhi; as the charge sheet, and the documents annexed thereto, do not allege that the Secretary/ Joint Secretary either suffered, or were likely to suffer, damage to their mind or reputation, the ingredients of “cheating” as defined in Section 415 IPC are not attracted; even if the allegations in the charge sheet, and the documents annexed thereto, are read in their entirety, and accepted as true, the petitioner cannot be said to have “cheated” or to have committed an offence under Section 468 IPC and the ingredients of Section 468 IPC are not attracted. The charge sheet, to the limited extent the petitioner was alleged to have committed an offence under Section 468 IPC, was quashed. For all the reasons aforementioned the Magistrate exceeded the powers, vested in him under Section 306 (1) Cr.P.C, to grant pardon to Sri T. Sunil Reddy, the fourth respondent herein.

¶68

“IN CAMERA” PROCEEDINGS AND CROSS-EXAMINATION OF THE ACCUSED SEEKING PARDON:

¶69

24. The contention, urged on behalf of the petitioner, that Section 306 Cr.P.C. proceedings should be conducted only in open Court, and not in “in camera”, does not merit acceptance as these proceedings are neither an enquiry nor a trial. Both the aforesaid contention, and the other contention that an approver can only be tendered pardon after he is subjected to cross-examination by the other accused, was considered in Ranadhir Basu v. State of West Bengal .^[14] , wherein

¶70

the Supreme Court held:-

¶71

“……….From this observation it does not follow that the person who is granted pardon must be examined in the presence of the accused and that the accused has a right to appear and cross-examine him at that stage also. As pointed out by this Court in that case the object is to provide an opportunity to the accused to show to the Court that the approver's evidence at the trial is untrustworthy in view of the contradictions or improvements made by him during his evidence at the trial. Considering the object and purpose of examining the person accepting tender of pardon as a witness is thus limited. The proceeding which takes place before the Magistrate at that stage is neither an inquiry nor a trial. Therefore, the submission of the learned counsel that Sudipa should have been examined as a witness in open court and not in the chamber and that while she was examined the Magistrate should have kept the accused present and afforded to them an opportunity to cross-examine Sudipa cannot be accepted. The phrase “examination of a witness” does not necessarily mean examination and crossexamination of that witness. What type of examination of a witness is contemplated would depend upon the object and purpose of that provision……..” (emphasis supplied)

¶72

25. It is true that, while holding that the phrase “examination of a witness” does not necessarily mean examination and crossexamination of that witness, the Supreme Court left the question, whether the approver was required to be cross-examined by the other accused before he is tendered pardon, open. In any event, it is wholly unnecessary for this Court to now examine whether the proceedings stand vitiated on this ground, as the impugned order is being set aside on the ground that the Learned Magistrate did not examine whether the material placed before him contained even a bare and bald allegations

¶73

attracting the ingredients of “cheating” (which forms the basis for an offence under Section 468 IPC), more so as this Court, in its order in Crl.P. No.12791 of 2011, has quashed the charge sheet in so far as the offence under Section 468 IPC is concerned.

¶74

SECTION 460(g) Cr.P.C:

¶75

26. The submission of Sri C. Padmanabha Reddy, Learned Senior Counsel, that, even if it is found that the order passed by the Magistrate is irregular, the proceedings would not be vitiated as Section 460 (g) Cr.P.C. includes, among the irregularities which would not vitiate the proceedings, the power to tender pardon under Section 306 Cr.P.C, does not merit acceptance. Section 460 Cr.P.C. relates to irregularities which do not vitiate proceedings and, under clause (g) thereof, if any Magistrate, not empowered by law to tender pardon under Section 306 Cr.P.C, erroneously in good faith tenders pardon, his proceedings shall not be set aside merely on the ground of his being not so empowered. Section 460 (g) Cr.P.C. applies only if a Magistrate is not empowered by law to tender pardon under Section 306 Cr.P.C. It is not even the case of the petitioner that the Magistrate, who passed the impugned order, either lacks jurisdiction or he does not have the power to tender pardon under Section 306 Cr.P.C. The case of the petitioner, in short, is that, while Section 306 Cr.P.C. did empower the Learned VI Additional Chief Metropolitan Magistrate to tender pardon, his power to do so was circumscribed by the requirement under sub-section 2(b) thereof, and it is only in such a case could he have exercised his power to grant pardon to an accomplice. While the Learned Magistrate does have the power under Section 306 Cr.P.C. to grant pardon, such a power can only be exercised, in view of Section 306(2)(b), where the offence of which the accused is charged is punishable for a period of seven years or more.

¶76

Section 460(g) Cr.P.C, therefore, has no applicable to the facts of the present case. As the Learned Magistrate has granted pardon to the fourth respondent herein, despite the bar under Section 306 (2)(b) Cr.P.C., and none of the documents placed before him contain even a bare and bald allegation attracting the ingredients of “cheating” under Section 415 IPC which is the essential requirement for an offence of “forgery for the purpose of cheating” under Section 468 IPC, the impugned order must be, and is, accordingly, quashed. EXERCISE OF JURISDICTION TO ISSUE A WRIT OF CERTIORARI:

¶77

27. The submission of the Learned Additional Advocate General that exercise of judicial review, under Article 226 of the Constitution of India, is not warranted even on the ground of correcting a jurisdictional error; and the question, whether the Learned Magistrate can exercise jurisdiction only if the conditions stipulated under Section 306(2)(b) Cr.P.C. are satisfied, cannot be examined in certiorari proceedings; does not merit acceptance.

¶78

28. The jurisdiction under Article 226 of the Constitution is limited to ensuring that judicial or quasi-judicial tribunals, or administrative bodies, do not exercise their powers in excess of their statutory jurisdiction, but correctly administer the law within the ambit of the statute creating them or entrusting those functions to them. Its purpose is only to determine, on an examination of the record, whether the inferior tribunal has exceeded its jurisdiction or has not proceeded in accordance with the essential requirements of the law which it was meant to administer. (Nagendra Nath Bora v. Commr. of Hills Division^[15] ) .

¶79

29. A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior courts or tribunals: these are cases

¶80

where orders are passed by inferior courts or tribunals without jurisdiction, or in excess of it, or as a result of failure to exercise jurisdiction. A writ can similarly be issued where, in exercise of the jurisdiction conferred on it, the Court or Tribunal acts illegally or improperly. An error of law, which is apparent on the face of the record, can be corrected by a Writ. Where it is manifest that the conclusion of law recorded by an inferior Court or Tribunal is based on an obvious mis-interpretation of the relevant statutory provision, or sometimes in ignorance of it, or even in disregard of it, or is expressly founded on reasons which are wrong in law, the said conclusion can be corrected by a writ of certiorari. In all these cases the impugned conclusion should be so plainly inconsistent with the relevant statutory provision that no difficulty is experienced by the High Court in holding that the said error of law is apparent on the face of the record. (Syed Yakoob

¶81

v. K.S. Radhakrishnan^[16] ) .

¶82

30. Certiorari, under Article 226 of the Constitution, is issued for correcting gross errors of jurisdiction i.e. when a subordinate court is found to have acted (i) without jurisdiction—by assuming jurisdiction where there exists none, or (ii) in excess of its jurisdiction—by overstepping or crossing the limits of jurisdiction, or (iii) acting in flagrant disregard of the law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice. (Abdul Razak v.

¶83

Mangesh Rajaram Wagle^[17] ; Surya Dev Rai v. Ram Chander

¶84

Ra i^[18] ) . If an inferior court or the tribunal of first instance acts in a manner which is contrary to all accepted rules of procedure, and which offends all sense of fair play, the superior court may exercise its power to issue the prerogative writ of certiorari to correct the error of the court

¶85

or the tribunal of first instance. (State of U.P. v. Mohd. Nooh^[19] ) . The certiorari jurisdiction extends only to cases where inferior courts or tribunals or authorities act illegally or improperly in the exercise of their jurisdiction causing grave miscarriage of justice. (B.K. Muniraju v. State of Karnataka^[20] ) .

¶86

31. The power conferred on the Magistrate, under Section 306(1) Cr.P.C, to tender pardon is only in cases which fall within Section 306(2) Cr.P.C. Where the Magistrate exercises power to tender pardon to an accused, even in those cases where either clause (a) or clause (b) of Section 306(2) Cr.P.C. is not attracted, exercise of such power would be ultra vires the said statutory provision. Where subordinate courts/tribunals act in excess of their jurisdiction to tender pardon to an accused even in cases where neither clause (a) nor clause (b) of Section 306(2) Cr.P.C. is attracted, they overstep or cross the limits of their jurisdiction, and therefore a Writ of Certiorari would issue for correcting such gross errors of jurisdiction as the court/tribunal concerned is required to exercise its power only in accordance with the statutory provisions conferring such a power on it.

¶87

ALTERNATIVE REMEDY:

¶88

32. The contention that, since a remedy of revision is available under Section 397 of the 1973 Code, this Court should refrain from exercising its jurisdiction under Article 226 of the Constitution of India is only to be noted to be rejected. It is true that an order granting pardon is open to revision but whether the court, whose powers are invoked for that purpose, will interfere or not is a matter depending upon the circumstances of each case. (State of U.P. v. Kailash Nath

¶89

Agarwa l^[21] ) . That would, however, not bar this Court from exercising its jurisdiction under Article 226 of the Constitution of India. There is no

¶90

rule, with regard to certiorari as there is with mandamus, that it will lie only where there is no other equally effective remedy. It is well established that, provided the requisite grounds exist, certiorari will lie although a right of appeal/revision has been conferred by statute. (Halsbury's Laws of England, 3rd Edn., Vol. 11, p. 130; Mohd. Nooh¹⁹ ). The petitioner invoked the jurisdiction of this Court under Section 482 Cr.P.C. to quash the charge sheet in C.C. No.555 of 2011, (later renumbered as C.C. No.846 of 2011) on the file of the Court of the Chief Metropolitan Magistrate, Hyderabad. The order under challenge in this Writ Petition is the order of the VI Addl.Chief Metropolitan Magistrate, Hyderabad, in Crl.M.P. No.3729 of 2011 in Cr. No.53 of 2011 dated 10.10.2011 whereby pardon was tendered to Sri T. Sunil Reddy, the first accused in C.C. No.846 of 2011. As the proceedings under challenge and the relief sought for in both these cases are distinct and different, invocation of this Court’s jurisdiction under Section 482 Cr.P.C. would not bar the petitioner from invoking the certiorari jurisdiction of this Court by way of the present Writ Petition.

¶91

33. As a result the order of the VI Addl. Chief Metropolitan Magistrate, in Crl.M.P. No.3729 of 2011 in Cr. No.53 of 2011 dated 10.10.2011, is quashed. The Writ Petition is allowed. However, in the circumstances, without costs.

¶92

_______________________________ Date: 11.04.2012 RAMESH RANGANATHAN, J

¶93

Note: L.R. copy to be marked. B/o MRKR/ASP

¶94

[1] (2002) 1 ALD (Crl.) 367 [2] (2011) 9 SCC 479 [3] 1986 (1) Crimes 432 (P &HC) [4] AIR 1958 Pun 72 [5] 1963(3) Crl.L.J. 547 [6] 2012(1) SCC 500 [7] AIR 1968 SC 594 [8] (1851) 5 Cox Cr. Cas 507 [9] (2007) 8 SCC 559 [10] AIR 1959 SC 492 [11] (2007) 1 SCC 732 [12] 2000 CRI.L.J.3487 [13] AIR 1957 MAD 727 [14] (2000) 3 SCC 161 [15] 1958 SCR 1240 [16] AIR 1964 SC 477 [17] (2010) 2 SCC 432 [18] (2003) 6 SCC 675 [19] 1958 SCR 595 [20] (2008) 4 SCC 451 [21] (1973) 1 SCC 751

Mr.Umesh Kumar I.P.S., v. The State of Andhra pradesh

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Mr.Umesh Kumar I.P.S., v. The State of Andhra pradesh

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