CENTRAL BUREAU OF INVESTIGATION v. SHIVA MURTHY S K

certificate was filed, and the Trial Court proceeded to hear the matter, holding that the defect is cured. The Trial Court is right in holding that such an omission is curable.

11. The Special Court considered the statements of PW-1 and PW-2 and concluded that the respondents have not violated the terms of the pardon. Hence, the CBI is before this Court assailing the said order.

12. Before going into the merits of the petition, it is necessary to record certain facts: (a) The prosecution had registered an FIR R.C.No.06(A)/2016 on 17.03.2016 against one Shri - 7 - NC: 2026:KHC:6551 CRL.RP No. 1519 of 2022 HC-KAR Narasimhaswamy S.G. and Shri N. Sundaram, the Superintendents of Customs at the Import Section of Customs at Bengaluru International Airport. The case was registered for offences under Sections 7, 8, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 (for short 'PC Act') and Section 120B of Indian Penal Code (for short 'IPC'). (b) The prosecution alleged that accused No. 1 and 2, the Customs officials, were demanding and accepting illegal gratification from Clearing House Agents, and accused No. 3 and 4, the employees of two Clearing House Agents, collected the bribe from other agents and paid the same to accused No. 1 and 2 for clearing files for the release of imported goods. (c) During the investigation, accused No. 3 and 4 (the present respondents) under Section 164(1) of the - 8 - NC: 2026:KHC:6551 CRL.RP No. 1519 of 2022 HC-KAR Code before the XVII Additional Chief Metropolitan Magistrate admitted the accusations. (d) Accused No.3 and 4 filed applications under Section 306(1) of the Code to be the approvers and sought pardon. The CBI filed a memo supporting the said application to treat accused No.3 and 4 as approvers. (e) Acting on the application under Section 306(1) of the Code, the Special Judge granted the pardon on the conditions which are extracted below: “They must make full and true disclosure of the whole of the circumstances within their knowledge relative to the offence and to every other person concerned in the commission of the offences whether as principal or abettor. Accused no.3 and 4 are also cautioned that if it is disclosed that they have willfully concealed anything essential or giving false evidence and not complied with the condition on which the tender of pardon was tendered and accepted by them or for any other offences of which they appears to have been guilty in - 9 - NC: 2026:KHC:6551 CRL.RP No. 1519 of 2022 HC-KAR connection with the same matter and also for the offence of giving false evidence." (f) Later in the trial, accused No.3 and 4 were examined as PW-1 and PW-2. In cross-examination, according to the prosecution, the said approvers supported the case of the defense. (g) In this background, the application under Section 308(1) of the Code was filed to revoke the pardon and the same was dismissed. The said order of dismissal is questioned in this petition.

13. Learned counsel appearing for the petitioner raised the following contentions: (i) While tendering pardon, conditions were imposed on the accused No.3 and 4 that they should make full and true disclosure of the whole circumstances within their knowledge relative to the offence and the persons concerning the offence, whether as principal or abettor. However, the evidence of PW-1 - 10 - NC: 2026:KHC:6551 CRL.RP No. 1519 of 2022 HC-KAR and PW-2 would demonstrate that the respondents have not complied with the terms and conditions of the pardon; (ii) The respondents supported the prosecution's version in their statements under Section 164(1) of the Code. However, in cross-examination, they took a ‘U-turn’ from their statements and supported the case of the defence, and thereby violated the terms and conditions of the pardon; (iii) The statements in the cross-examination of the respondents are contrary to the statements made under Section 164(1) of the Code; as such, case is made out for revoking pardon under Section 308 of the Code; (iv) The Trial Court, on a certificate issued by the Public Prosecutor under Section 308(1) of the Code, should have proceeded to hold the trial against the approvers, as the revocation of pardon is automatic - 11 - NC: 2026:KHC:6551 CRL.RP No. 1519 of 2022 HC-KAR upon the issuance of such a certificate by the Public Prosecutor.

14. Learned counsel appearing for the respondents raised the following contentions: (i) The revocation of pardon is not automatic upon a certificate being filed by the Public Prosecutor. The Court has to hear the approvers before passing orders on a certificate for revocation of pardon; (ii) In the Section 164(1) statements, examinations-in- chief, and cross-examinations, the respondents narrated the truth as known to them; merely because the statements in cross-examination did not support the prosecution's case, that does not mean that the approvers violated the terms of the pardon; (iii) In examinations-in-chief, cross- examinations, the respondents answered specific questions where there was no scope for further - 12 - NC: 2026:KHC:6551 CRL.RP No. 1519 of 2022 HC-KAR elaboration. In such a situation, if the answers do not tally for any reason, that by itself is not a ground to say pardon conditions were violated; (iv) It is quite possible that the prosecution's theory itself is false and what is stated in the cross- examination is true; therefore, the prosecution cannot file an application under Section 308 merely because the evidence is not to their liking; (v) If any explanation was needed after cross- examinations, the petitioner could have re- examined the witnesses, but the prosecution chose not to do so.

15. Learned counsel for the petitioner has relied on the following judgment in support of his contentions: State of Maharashtra vs. Abu Salem Abdul Kayyum Ansari and Others1.

16. Learned counsel for the respondent has relied on the following judgments in support of his contention: 1 (2010) 10 SCC 179 - 13 - NC: 2026:KHC:6551 CRL.RP No. 1519 of 2022 HC-KAR (i) Emperor v. Kothia Navalya Bhil2 (ii) Dip Chand v. Emperor3 (iii) Faguna Kanta Nath v. State of Assam4 (iv) Ex.Sepoy Hardhan Chakrabarty v. Union of India (UOI) and Anr.5 (vi) Madan Raj Bhandari v. State of Rajasthan6 (vi) B.H. Narashima Rao v. Government of Andhra Pradesh7 (vii) Rammi Alias Rameshwar vs. State of Madhya Pradesh8 (viii) Directorate of Enforcement vs. Rajiv Saxena9

17. Section 308(1) of the Code reads as under: “Where, in regard to a person who has accepted a tender of pardon made under section 306 or section 307, the Public Prosecutor certifies that in his opinion such person has, either by wilfully concealing anything essential or by giving false evidence, not complied with the condition on which the tender was 4 ORDER (i) Petition is dismissed. - 40 - NC: 2026:KHC:6551 CRL.RP No. 1519 of 2022 HC-KAR (ii) Since, the petitioner has not sought the leave of the High Court to prosecute the approvers on the premise that approvers have given false evidence; the liberty is reserved to the prosecution to file such petition as advised in law. (iii) It is made clear that this Court has not expressed any opinion as to whether the statements made by the approvers are false or not. Such question has to be decided on an application, if any, filed seeking prosecute approvers for giving false evidence. Sd/- JUDGE (ANANT RAMANATH HEGDE) BRN/CHS *Page No.40 is retyped and replaced vide chamber order dated 06.02.2026.