Case Note & Summary
The petitioner, Narendra G. Goel, was a co-accused in a murder case arising from the death of Dr. Asha Goel on 23rd August 2003. The Malabar Hill Police registered an FIR against unknown persons under Sections 302, 397, 452 read with 34 and 120B of the Indian Penal Code. The investigation was transferred to DCB CID, Unit II, Mumbai, and charge-sheet was filed. Before committal, the original accused no.1 (respondent no.2) gave a confession recorded by the Metropolitan Magistrate on 26th and 27th September 2005. On 28th December 2005, cognizance was taken and process issued. On 10th January 2006, the learned Additional Chief Metropolitan Magistrate tendered pardon to respondent no.2 under Section 306 CrPC. The petitioner challenged this order and also an order dated 22nd September 2014 dismissing his application seeking compliance with a High Court order dated 15th February 2013 in Writ Petition No.1309 of 2012. The petitioner argued that he should have been heard before the grant of pardon and that the Magistrate should have taken fresh cognizance after the High Court order. The High Court held that a co-accused has no right to be heard at the stage of grant of pardon, as it is a matter between the prosecution and the proposed approver. The court also held that the High Court order did not require fresh cognizance, and the Magistrate correctly dismissed the application. The petition was dismissed.
Headnote
A) Criminal Procedure - Pardon - Section 306 CrPC - Right of Hearing - Co-accused has no right to be heard before tender of pardon to an accomplice - The grant of pardon is a matter between the prosecution and the proposed approver, and the co-accused cannot claim any right of audience at that stage - Held that the Magistrate's order granting pardon without hearing the petitioner was valid (Paras 1-10).
B) Criminal Procedure - Cognizance - Section 190 CrPC - Fresh Cognizance - After pardon tendered before committal, the Magistrate is not required to take fresh cognizance - The order of the High Court dated 15th February, 2013 did not direct fresh cognizance but only compliance with the earlier order - Held that the Magistrate rightly dismissed the petitioner's application (Paras 11-15).
Issue of Consideration
Whether the petitioner, a co-accused, is entitled to be heard before the grant of pardon to another accused under Section 306 of the Code of Criminal Procedure, 1973, and whether the learned Magistrate was required to take fresh cognizance after the High Court order dated 15th February, 2013.
Final Decision
The petition was dismissed. The court upheld the order dated 10th January 2006 granting pardon to respondent no.2 and the order dated 22nd September 2014 dismissing the petitioner's application.
Law Points
- Pardon under Section 306 CrPC
- Right of hearing to co-accused
- Tender of pardon before committal
- Cognizance after pardon
- Compliance with High Court order
Case Details
2016 LawText (BOM) (04) 41
Writ Petition No.3919 of 2014
V. M. Kanade, Revati Mohite Dere
Mr. Amit Jajoo a/w Mr. Mukesh Vats and Mr. Victor Basu i/b PKA Advocates for the Petitioner, Mr. Raja B. Thakare, Special Public Prosecutor for the Respondent – State, Ms. Naima Shaikh i/b Khan Abdul Waheb for the Respondent No.3
The State of Maharashtra, Pradeep Prabhakar Parab, Pawankumar Satyanarayan Goenka
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Nature of Litigation
Criminal writ petition under Section 482 CrPC and Article 227 of Constitution challenging orders granting pardon and dismissing application for compliance.
Remedy Sought
Petitioner sought quashing of order dated 10th January 2006 granting pardon to respondent no.2 and order dated 22nd September 2014 dismissing his application for compliance of High Court order dated 15th February 2013.
Filing Reason
Petitioner, a co-accused, claimed he was not heard before pardon was granted to another accused and that the Magistrate failed to take fresh cognizance as per High Court order.
Previous Decisions
Order dated 10th January 2006 granting pardon to respondent no.2; order dated 22nd September 2014 dismissing petitioner's application for compliance of High Court order dated 15th February 2013 in Writ Petition No.1309 of 2012.
Issues
Whether the petitioner, a co-accused, is entitled to be heard before the grant of pardon to another accused under Section 306 CrPC.
Whether the learned Magistrate was required to take fresh cognizance after the High Court order dated 15th February 2013.
Submissions/Arguments
Petitioner argued that he should have been heard before pardon was granted to respondent no.2, as he would be affected by the approver's testimony.
Petitioner argued that the Magistrate ought to have taken fresh cognizance after the High Court order dated 15th February 2013, giving him an opportunity of hearing.
Respondent-State and respondent no.3 opposed the petition, submitting that a co-accused has no right of hearing at the stage of grant of pardon.
Ratio Decidendi
A co-accused has no right to be heard before the grant of pardon to an accomplice under Section 306 CrPC, as the tender of pardon is a matter between the prosecution and the proposed approver. The Magistrate is not required to take fresh cognizance after the High Court order unless specifically directed.
Judgment Excerpts
By this petition, preferred under Section 482 of the Code of Criminal Procedure and Article 227 of the Constitution of India, the petitioner has impugned the order dated 10th January, 2006 by which pardon was tendered by the learned Additional Chief Metropolitan Magistrate, 37th Court, Esplanade, Mumbai, to the respondent no.2 herein; and the order dated 22nd September, 2014 passed by the learned Additional Chief Metropolitan Magistrate, in C.C.No.525/PW/2005, by which the application of the petitioner seeking compliance of the order dated 15th February, 2013 passed by the High Court in Writ Petition No.1309 of 2012, was dismissed.
Procedural History
On 23rd August 2003, Dr. Asha Goel was murdered. FIR registered at Malabar Hill Police Station. Investigation transferred to DCB CID. Charge-sheet filed. On 26th and 27th September 2005, respondent no.2 gave confession. On 28th December 2005, cognizance taken and process issued. On 10th January 2006, pardon tendered to respondent no.2. Petitioner filed Writ Petition No.1309 of 2012, disposed on 15th February 2013. Petitioner then filed application for compliance, dismissed on 22nd September 2014. Present petition filed on 2014.
Acts & Sections
- Code of Criminal Procedure, 1973: 306, 190, 207, 482
- Indian Penal Code, 1860: 302, 397, 452, 34, 120B
- Constitution of India: 227
