Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Writ No.410 of 2013 ====================================================== Arun Kumar Bhagat, S/o Late Hari Narayan Bhagat, Resident ov Laheriaganj, Ward No.-1 Police Station Madhubani in the District of Madhubani, presently posted as Orderly, Nagar Parishad, Madhubani .... .... Petitioner Versus 01. The State Of Bihar through the Chief Secretary, Government Of Bihar, Patna 02. The District Magistrate, Madhubani, District- Madhubani 03. The Superintendent of Police, Madhubani, District- Madhubani 04. Smt. Rekha Nayak, W/o Sri Sunil Nayak 05. Sunil Nayak, S/o Singheshwar Nayak, Both resident of village-Suratganj, Ward No.-9, P.S.-Madhubani Town in the District of Madhubani 06. Jata Shankar Jha, S/o Sri Prem Lal Jha, resident of village- Parjuar Jatdhari, P.S.-Arer in the District of Madhubani .... .... Respondents For the Petitioner :-
Legal Reasoning
Mr. Akhileshwar Pd. Singh, Sr. Adv. Mrs. Anika Kr. Singh & Mr. Bimal Kumar, Advocate Mr. A.Ujjwal, SC-25 For the State ====================================================== :- CORAM: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH ORAL ORDER 2 30-04-2013 The petitioner is permitted to delete the second
Decision
prayer made in the writ petition during course of the day. At the outset, it was pointed out to the learned senior counsel for the petitioner that he cannot maintain multiple prayers in one writ petition. Under such circumstances, learned senior counsel appearing for the petitioner sought permission to delete the second prayer made in the application with liberty to file another application for the said relief. The prayer is allowed. Patna High Court CR. WJC No.410 of 2013 (2) dt.30-04-2013 2 The prayer sought to be deleted is as follows:- “Petitioner further prays for learned Additional to direction Sessions Judge, Fast Track Court-IV, Madhubani to dispose of Criminal Revision No.-120 of 2011 at an early date”. the The petitioner is a Peon in Madhubani Town P.S. Case No. 02 of 2007, registered under sections 409, 420, 467 and 468 read with 34 of the Indian Penal Code. In the said case, apart from the petitioner some other persons have also been made accused. It appears that two separate trials bearing Trial No.- 1650 of 2009 and Trial No.- 2337 of 2009 arising out of aforesaid Madhubani Town P.S. Case No. 02 of 2007, were going on in the court below in respect of different accused persons. The petitioner filed an application under Article 226 and 227 of the Constitution of India before this Court seeking amalgamation of the two trials referred to above. A Bench of this Court vide order dated 31st July, 2009 passed in Cr.W.J.C. No. 322 of 2009, allowed the prayer made on behalf of the petitioner and directed the court below to amalgamate both the trials and proceed ahead with one trial in accordance with law. While arguing the aforesaid Criminal writ petition, learned counsel for the petitioner had submitted that the petitioner intended to file a petition under section 306 of the Code of Criminal Procedure with a prayer to become an approver in the case. A Bench of this Court vide order dated 31st July, 2009, directed the court below that if, Patna High Court CR. WJC No.410 of 2013 (2) dt.30-04-2013 3 any such application is filed within two weeks from the date of receipt of the order, the learned Magistrate shall dispose of the same in accordance with law. The aforesaid order passed by this Court was received in the court of the Magistrate concerned on 13.08.2009. Learned senior counsel appearing for the petitioner submitted that the petitioner thereafter filed an application before the Magistrate concerned on 21.08.2009, under section 306 of the Code of Criminal Procedure seeking conditional pardon, but the said application has not been disposed of till date. In the instant application, the prayer of the petitioner is to direct the Magistrate concerned to dispose of the aforesaid application filed on behalf of the petitioner under section 306 of the Code of Criminal Procedure. Taking into consideration, the facts and circumstances of the case, I direct the concerned Judicial Magistrate, Ist Class, Madhubani to dispose of the petition filed on behalf of the petitioner under section 306 of the Code of Criminal Procedure within one month from the date of receipt/production of a copy of this order. It is made clear that this Court has not expressed any opinion on the merits of the application filed on behalf of the petitioner. It is needless to say that the very object of section 306 of the Code of Criminal Procedure is to allow Patna High Court CR. WJC No.410 of 2013 (2) dt.30-04-2013 4 pardon to be tendered in cases where a grave offence is alleged to have been committed by several persons so that with the aid of evidence of the person pardoned the offence would be brought home to the rest. The provision is to prevent the escape of offenders from punishment in grave cases for lack of evidence by grant of pardon to accomplices for obtaining true evidence. From a bare perusal of the provisions as prescribed under section 306 of the Code of Criminal Procedure, it is clear that it is for the prosecution to ask that a particular accused, out of several may be tendered pardon, if the prosecution thinks that the tender of pardon will be in the interest of a successful prosecution of the other accused whose conviction is not easy without approver’s testimony. It is also open for the prosecution to agree for tendering of pardon to a particular accused, if the application is filed by such accused. Learned Magistrate before whom the matter is pending must not take on himself the task of determining the propriety of tendering pardon to the petitioner. Although, the power to grant pardon is vested in court, it is the prosecution’s job to see whether the assistance of the petitioner is required or not to ensure the conviction of the other persons. The learned Magistrate before whom the matter is pending must keep in mind these parameters while disposing of the application filed on behalf of the petitioner under section 306 of the Code of Criminal Procedure. With these observations the present application is Patna High Court CR. WJC No.410 of 2013 (2) dt.30-04-2013 5 disposed of. Let a copy of this order be communicated to the court below through Fax at the costs of the petitioner (Ashwani Kumar Singh, J) P.K./-