State through CBI v. Payal Aggarwal & Ors.

vested in this Court in terms of Section 561-A of J&K CrPC.

6. Shorn of minute details, the overview of the factual background of the case is, that in the year 2010, Government of Jammu & Kashmir referred 100 seats under the Management Quota to Acharya Shri Chander College of Medical Sciences & Hospital (ASCOMS), Sidhara Jammu for Combined Entrance Test (for short CET) for admission in MBBS/BDS courses, admission cards were issued to the candidates, who were eligible in the said examination and the CET was conducted on 21.08.2010 in the University Campus at Jammu. During examination, the staff appointed for conducting CET found seven candidates impersonating on behalf of the actual candidates who had applied for admission in response to the Notification issued for test. Subsequently, they were apprehended as photographs on the admission cards did not match with the photographs on the original application forms and the incriminating material was seized.

7. Accordingly, the Director Admissions, made a written complaint on

21.08.2010 for registration of FIR and the case for offences under sections 419, 420 read with section 120-B RPC and 2/5 of the Jammu and Kashmir (Prevention of Unfairmeans) Examination Act, 1987 (for short PUE Act) was registered at Police Station Gandhi Nagar Jammu vide FIR No. 4 CRR Nos. 76, 51, 58, 63, 71 of 2016 177/2010 for the commission of offences punishable under sections 419, 420 RPC and 2/5 PUE Act 1987. Subsequently, the Government of Jammu & Kashmir referred the matter for CBI investigation and after consent of the State Government, CR was registered by CBI (ACB) Jammu.

8. During investigation, Pankaj Kumar Priyadharshi, Hemant Singh Rajawat, Arvind Mahala, Goverdan Dass Gabba, Virender Sahu, Mohd. Hafiz, Shahzeb and Kulwant Singh volunteered to make confessional statements and accordingly their statements were recorded before a Magistrate. Eventually, after completion of investigation in six different instances, separate charge-sheets were laid, out of which, first five charge sheets were for the offences punishable under sections 419, 420, 468, 471, 120-B read with section 511 RPC and 2/5 of PUE Act and a prayer was made to the learned CBI Magistrate for grant of pardon to above mentioned eight accused persons in terms of section 337 of CrPC and treat them as approvers. However, the learned CBI Magistrate rejected the prayer of the petitioner to tender pardon to the accused in rest of the charge sheets on the ground inter alia that since neither offences alleged against accused were exclusively triable by the Court of Sessions nor the said offences were punishable with imprisonment extendable to seven years.

9. While sixth charge sheet presented against the accused was for the commission of offences punishable under sections 419, 420, 468, 471 read with section 120-B RPC and 2/5 of PUE Act on the ground that the candidates had been selected on the basis of answer sheets attempted by the alleged impersonators, therefore, the learned trial Magistrate accepted the prayer of the petitioner and granted pardon in the said charge sheets to the accused whose statements had been recorded under section 164 CrPC. 5 CRR Nos. 76, 51, 58, 63, 71 of 2016

10. Learned counsel for the petitioner has argued that the learned CBI Magistrate without examining the accused, in order to satisfy himself whether the statements recorded under section 161 CrPC were admitted by the accused and whether they were ready to become approver or not, wrongly interpreting section 337 of CrPC, passed the impugned order. It was also argued that the Revisional Court had also committed error in interpreting section 337 of CrPC without appreciating the relevant provisions in its true perspective and upheld the order passed by the learned CBI Magistrate, dismissing all the revision petitions. It was further argued that though the petitioner has challenged the impugned orders passed by the learned Magistrate as well as the Revisional Court by way of criminal revisions, however, at the same time a prayer has been made in the alternative to quash the impugned orders, invoking inherent jurisdiction of this Court.

11. Learned counsel for the petitioner further argued at the Bar that the offences of forgery and cheating alleged against the accused are punishable upto seven years, therefore, the concurrent finding returned by the Trial Court, as well as, the Revisional Court that none of the offences is punishable with sentence of seven years imprisonment is incorrect view, as such, the orders impugned are liable to be set aside. It was further argued that since the offences of cheating and forgery had been committed by the accused by forging the documents of admit cards etc., as such, the learned Magistrate should have taken a view that the offence of forgery was not only attempted as has been stated in the charge sheet but committed. It was finally prayed to allow the petitions by quashing the orders impugned, passed by the learned Magistrate as well as the Revisional Court, by 6 CRR Nos. 76, 51, 58, 63, 71 of 2016 directing to tender pardon to those accused who have made confessional statements so that they may appear in the court as approvers during trial.

12. Learned counsel for the respondents, ex adverso, argued that the Trial Magistrate and the Revisional Court both have interpreted the relevant provision contained in section 337 of CrPC correctly to hold that the pardon cannot be tendered to the accused, who have made the confessional statements, to make them approvers, since the provision of section 337 of CrPC, cannot be made applicable in the cases, as neither any of the offences in the charge sheet is triable by High Court or Court of Sessions nor any of the offences is punishable with imprisonment of seven years. They have also vehemently argued that the petitioner has filed these criminal revisions having already exhausted remedy of criminal revision before the Sessions Court and subsequently filing of criminal revisions is statutorily barred, as such, the criminal revisions filed by the petitioner are not maintainable.

13. Heard, perused and considered.

14. Section 337(1) of CrPC provides for tender of a pardon to accomplice in respect of the following offences, namely: i) Any offence triable exclusively by the High Court or Court of Sessions; ii) Any offence punishable with imprisonment which may extend to seven years; iii) Any offence under any of the following sections of the IPC i.e 161, 165, 165-A, 216-A, 369, 401, 435 and 477-A.

15. As already stated in the preceding paras that in all the five cases for which these revision petitions have been preferred, the accused were alleged to have attempted to commit offences punishable under sections 419, 420, 468, 471, 120-B read with section 511 RPC and 2/5 of PUE Act. The offences described in the charge sheet alleged to have been committed by 7 CRR Nos. 76, 51, 58, 63, 71 of 2016 the accused are extracted in the following table indicating the offences and the punishment therefor. Sec. RPC 419 420 468 471 511 120- B PU E Act Offence Punishment under Ranbir Penal Code By what Court triable Cheating by personation thereby Cheating dishonestly inducing delivery of property, or the making, destruction of a valuable security Forgery for the purpose of cheating alteration Using as genuine a forged document which is known to be forged Attempting commit offences punishable with imprisonment for life and in such attempt doing Act towards the commission of the offence Criminal Conspiracy 2(k) Unfairmeans Imprisonment of either description for 3 years or fine, or both Imprisonment of either description for 7 years, and fine Imprisonment of either description for 7 years, and fine Punishment for forgery of such document Imprisonment for life or imprisonment exceeding half longest term and of description, provided for the offence, or fine or both Imprisonment of either description months, or fine or both Imprisonment for a term which may extend to 2 years or with fine which may extend to Rs.2000 or with both Court of Session Judicial Magistrate of the second Court of Session Judicial Magistrate of the first class. Court of Session Judicial Magistrate of the first class. Same Court as that by which the forgery is triable The Court which the offence attempted triable. Judicial Magistrate of the first class Judicial Magistrate of the first class

16. None of the offences, except offences under sections 420, 468 RPC are punishable with imprisonment of either discretion for seven years and fine, however, on consideration of all the charge sheets, it appears that the charge sheets have been formulated by the investigating agency CBI, that all the accused had attempted to commit these offences meaning thereby that the offences of attempt to commit cheating and forgery for the purpose of cheating, under section 511 r/w 420 and 468 of RPC shall be punishable for imprisonment not exceeding half of the longest term of description provided for the offence, or fine, or both. Having regard to section 511 RPC with regard to commission of offences under sections 420, 468 RPC for attempting to commit cheating and forgery become punishable not 8 CRR Nos. 76, 51, 58, 63, 71 of 2016 exceeding half of the maximum term of the description provided for the main offence which means that the offences punishable under sections 420, 468 read with Section 511 RPC each, shall be punishable for imprisonment of just three and a half years, being half of seven years provided for those offences.

17. Having regard to the punishment for all the offences, not upto seven years, the matter with regard to tender pardon to accused under section 337 of CrPC, is required to be taken into view. A bare perusal of section 337 of CrPC shows that the view of the learned Trial Magistrate as well as the Revsional Court is correct.

18. Hon’ble the Supreme Court in case titled “State vs Hiralal G. Kothari & Ors.”, reported as AIR 1960 SC 360:1960 Cri LJ 524, has held that the pardon can only be tendered with regard to the offence which falls in one of these categories. It is not disputed that all the offences of which accused made confessional statements do not fall within any of these categories. It was further held that as we read section 337(1) of CrPC, it is to our mind perfectly clear that pardon can only be tendered under that provision with respect to the three categories of offences mentioned therein. Taking into account the provisions contained under section 337 of CrPC, it is held that in only three situations pardon can be tendered to accomplice, firstly in case of any offence triable exclusively by the High Court or Court of Sessions, secondly any offence punishable with imprisonment which may extend to seven years or thirdly any offence under any of the following sections of the RPC i.e 161, 165, 165-A, 216-A, 369, 401, 435 and 477-A, by a Magistrate at any stage of the investigation or enquiry into or the trial of the offence with a view to obtaining the evidence of any person 9 CRR Nos. 76, 51, 58, 63, 71 of 2016 supposed to have been directly or indirectly concerned in or privy to the offence tender a pardon to such person on condition of his making a full and true disclosure of whole of the circumstances within his knowledge relating to the offence and to every other person concerned, whether as principal or abettor, in the commission thereof. While doing so, the Magistrate must know the nature of offence, person seeking pardon is likely to give nature of his complicity and degree of his in-culpability in relation to offence and in relation to the accused.

19. Since none of the offences of which the accused seeking pardon are triable by High Court or Sessions Court or carry the punishment upto seven years or any of those offences which are enumerated in section 337 CrPC, therefore, no fault can be found with the impugned orders passed by the learned CBI Magistrate and the Revisional Court.

20. So far as the contention of learned counsel for the respondents that the second revision petition is not maintainable is concerned, the same also holds water, inasmuch as, section 435 of CrPC provides for exercise of the power of revision can be exercised concurrently by the High Court or any Sessions Judge with regard to any proceeding before any criminal court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed and as to the regularity of any proceedings of such court.

21. Provisions contained in sub-section 3 of section 435 and sub section 3 of section 438 of CrPC, which are relevant on the subject, are extracted for ready reference as follows: 10 CRR Nos. 76, 51, 58, 63, 71 of 2016 “435. Calling for records to exercise powers of revision (1) xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx (2) xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx (3) If an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the either of them.” “438. Sessions Judge’s powers of revision (1) xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx (2) xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx (3) Where any application for revision is made by or on behalf or any person before the Session Judge, the decision of the Sessions Judge thereon in relation to such person shall be final and no further proceeding by way of revision at the instance of such person shall be entertained by the High Court or any other Court.” Sub section 3 of section 435 provides that if an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by either of them. Therefore, in view of the clear statutory provision contained in sub section 3 of section 435, a second revision petition is not maintainable. Sub section 3 of section 438 of CrPC also provides that where any application for revision is made by or on behalf of any person before the Sessions Judge, the decision of the Sessions Judge thereon in relation to such person shall be final and no further proceeding by way of revision at the instance of such person shall be entertained by the High Court or any other court. This court already in a case titled “State of J&K vs Mohd Bashir & Ors”, reported as 2010 (3) JKJ [HC] 533, held that a second petition invoking revisional jurisdiction is not maintainable. Thus, in view of the provisions contained in sub section 3 of sections 435 11 CRR Nos. 76, 51, 58, 63, 71 of 2016 and sub section 3 of section 438 of CrPC second criminal revision petition, is barred when this remedy has been availed before either of the forum provided therefor. It is, therefore, held that all the revision petitions filed by the petitioners herein are barred and are non maintainable.

22. So far as the contention of learned counsel for the petitioner that these petitions in view of the alternative prayer for exercising inherent jurisdiction is concerned, in view of what has been held earlier with regard to merits of the cases, in absence of any grave illegality or perversity in the orders passed by the learned CBI Magistrate or by the revisional Sessions Court, do not warrant any interference by invoking inherent jurisdiction which is to be exercised very cautiously and sparingly. Both the impugned orders are thus upheld.

23. For the foregoing reasons and the observations made hereinabove, all the five criminal revision petitions alongwith pending application(s), if any, are found without any merit and substance and are also held to be non maintainable being statutorily barred, and are hereby dismissed. Interim orders, if any, shall stand vacated. The learned Magistrate shall proceed with the trial of the cases in accordance with law. Copy of this judgment shall be placed across each of the clubbed file and a copy thereof shall be sent down for compliance. Judge (M A Chowdhary) JAMMU 02.3.2023 Vijay Whether the order is speaking: Yes Whether the order is reportable: Yes