CENTRAL BUREAU OF INVESTIGATION v. P POTHURAJAN

The Trial Court framed two points for consideration as follows: (i) Whether the prosecution establishes respondent has not complied with the terms of the pardon? (ii) What order?

The Trial Court, after hearing both sides, dismissed the petition.

Initially, the application under Section 308(1) of the Code was not accompanied by a Public Prosecutor’s certificate, and the respondent opposed the application on that count. Subsequently, the Public Prosecutor’s certificate was filed, and the Court proceeded to hear the matter, holding that the defect - 5 - CRL.RP No. 1525 of 2022 was cured. The Trial Court was right in holding that such an omission is curable.

The Special Court considered the statement of PW-1 and concluded that the respondent had not violated the terms of the pardon. Hence, the prosecution is before this Court assailing the said order.

Before going into the merits of the petition, it is necessary to record certain facts: (a) The prosecution registered FIR R.C.No.07(A)/2016 on 17.03.2016 against Shri Visweswara Bhat and Shri V.Prem Kumar and Sri. K.R. Somasunder, 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 (PC Act) and ection 120B of IPC. (b) The prosecution alleged that accused No.1 to 3, the Customs officials, were demanding and accepting illegal gratification from Clearing House Agents, and accused - 6 - CRL.RP No. 1525 of 2022 No.4, collected the bribe from other agents and paid the same to accused No.1 to 3 for clearing files for the release of imported goods. (c) During the investigation, accused No.4 (the present respondent) under Section 164(1) of the Code before the 17th Additional Chief Metropolitan Magistrate admitted the accusations.

Learned counsel appearing for the petitioner raised the following contentions: (i) While tendering pardon, conditions were imposed on the respondent that he should make full and true disclosure of the whole circumstances within his knowledge relative to the offence and the persons concerning the offence, whether as principal or abettor. However, the evidence - 8 - CRL.RP No. 1525 of 2022 of PW-1 demonstrates that the respondent has not complied with the terms and conditions of the pardon; (ii) The respondent supported the prosecution's version in his statements under Section 164(1) of the Code. However, in cross-examination, accused supported the case of the defence, and thereby violated the terms and conditions; (iii) The statements the cross-examination of respondent are contrary to the statement made under Section 164(1) of the Code; as such, a 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 approver, as the revocation of pardon is automatic upon the issuance of such a certificate by the Public Prosecutor.

Learned counsel appearing for the respondent 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 approver before passing orders on a certificate for revocation of pardon; - 9 - CRL.RP No. 1525 of 2022 (ii) In both the Section 164(1) statement, examination-in- chief, and cross-examination, the respondent narrated the truth as known to him; merely because the statements in cross-examination do not support the prosecution's case, that does not mean the approver violated the terms of the pardon; (iii) In the examination-in-chief, the respondent answered specific questions where there was no scope for further elaboration, and similarly in cross-examination. 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-examination, the petitioner could have re-examined the witness, but the prosecution chose not to do so. - 10 - CRL.RP No. 1525 of 2022

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

Learned counsel for the respondent has relied on the following judgments in support of the contention: (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 (v) 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