Case Note & Summary
The petitioner, Mahesh Balasaheb Thakoor, original accused no.3 in a murder case, filed a criminal writ petition before the Bombay High Court seeking quashing of an order dated 19th July 2010 passed by the learned Sessions Judge, Pune, which tendered pardon to original accused no.2, Rajesh Pandurang Chaudhary, under Section 306 of the Code of Criminal Procedure, 1973 (CrPC). The petitioner argued that the pardon order was illegal because the accused who was granted pardon was not examined as a witness in the trial, which is a mandatory requirement under Section 306 CrPC. The court heard the learned advocate for the petitioner and the learned APP for the State. The court examined the provisions of Section 306 CrPC and noted that the procedure requires that after the tender of pardon, the person to whom pardon is granted must be examined as a witness in the trial. In this case, the order granting pardon was passed on 19th July 2010, but the accused was not examined as a witness. The court held that the order was passed without following the mandatory procedure under Section 306 CrPC and therefore could not be sustained. The court quashed and set aside the order dated 19th July 2010 and directed the trial court to proceed with the trial without considering the said order. The petition was allowed accordingly.
Headnote
A) Criminal Procedure - Pardon - Section 306 CrPC - Mandatory Procedure - The order granting pardon to original accused no.2 was quashed as the accused was not examined as a witness after the tender of pardon, violating the mandatory requirement under Section 306 CrPC. The court held that the procedure under Section 306 CrPC requires that after tender of pardon, the accused must be examined as a witness in the trial. (Paras 3-5) B) Criminal Procedure - Pardon - Section 306 CrPC - Non-Compliance - The Sessions Judge's order dated 19th July 2010 tendering pardon to original accused no.2 was set aside because the accused was not examined as a witness, and the order was passed without following the mandatory procedure. The court directed the trial court to proceed with the trial without considering the pardon order. (Paras 5-6)
Issue of Consideration
Whether the order granting pardon to an accused under Section 306 of the Code of Criminal Procedure, 1973 is valid when the accused has not been examined as a witness after the tender of pardon.
Final Decision
The petition is allowed. The order dated 19th July 2010 passed by the learned Sessions Judge, Pune, tendering pardon to original accused no.2 is quashed and set aside. The trial court is directed to proceed with the trial without considering the said order.
Law Points
- Pardon under Section 306 CrPC requires examination of accused as witness
- Pardon cannot be granted without recording statement
- Section 306 CrPC mandatory procedure
- Tender of pardon must be followed by examination as witness
