Eldhose v. State of Kerala and Kunjumon K.D.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **THURSDAY, THE 13TH DAY OF FEBRUARY 2020 / 24TH MAGHA, 1941** **Crl.Rev.Pet.No.1345 OF 2019** **AGAINST THE ORDER DATED 07.11.2019 IN CMP NO.231/2019 IN CC 219/2017 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-II KOTHAMANGALAM** ## **REVISION PETITIONER/ACCUSED NO.3:** **ELDHOSE, AGED 43 YEARS S/O KURIAKOSE, PUTHENPURAKKAL HOUSE, KOOVAPPARA, KUTTAMPUZHA, KOTHAMANGALAM, PIN - 686 691.** **BY ADV. SRI.C.DILIP** ## **RESPONDENTS/COMPLAINANT & STATE:** **1 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031. 2 KUNJUMON K.D., S/O DEVASSIA, KALARIKUDIYIL HOUSE, CHAKKIMEDU, VATATTUPARA P.O., KUTTAMPUZHA, KOTHAMANGALAM, PIN - 686 691.** **R1 BY SRI.SANDESH RAJA.K., SPL. G.P. (FORESTS)** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 30.01.2020, THE COURT ON 13.02.2020 PASSED THE FOLLOWING:** Crl.R.P.No.1345/2019 2 ## **R.NARAYANA PISHARADI, J** ************************ Crl.R.P.No.1345 of 2019 -----------------------------------------------Dated this the 13[th] day of February, 2020 ## **O R D E R** The petitioner is the third accused in the case C.C.No.219/2017 on the file of the Court of the Judicial First Class Magistrate-II, Kothamangalam. 2. The offences alleged against the accused in the aforesaid case are under Sections 27(1)(e)(i) and (iv) of the Kerala Forest Act, 1961 and Sections 9, 39, 40, 44, 49, 51(1), 51(2) and 52 of the Wild Life (Protection) Act, 1972. 3. The prosecution case is as follows: Accused 1 to 6 had entered into a conspiracy with Accused No.7 to collect ivory by killing elephants. Accused Nos.13 and 14 provided guns for the aforesaid purpose to Accused 1 to 6. Accused 1 to 6 trespassed into the reserve forest and shot an elephant and killed it and removed the ivory weighing five kilograms and sold it to Crl.R.P.No.1345/2019 3 Accused 10 and 11. Accused 10 and 11 sold the ivory to Accused No.12. Accused No.12 entered into a conspiracy with accused No.29 and took a building on rent and collected raw ivory there and he made idols using the ivory with the help of Accused Nos.15, 22, 27 and 28. Accused No.12 sold the idols to Accused No.26 with the help of Accused No.25. The other accused in the case had engaged in the trade of ivory idols and assisted the main accused at various stages in committing the aforesaid acts. 4. Kunjumon, the first accused in the case, filed an application as Crl.M.P.No.231/2019 in the trial court under Section 306 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code') for granting pardon to him. As per the order dated 04.09.2019, the trial court dismissed the aforesaid application. 5. Kunjumon filed Crl.M.C.No.6522/2019 before this Court challenging the order of the trial court dismissing the application filed by him for granting pardon. As per the order dated 20.09.2019 in Crl.M.C.No.6522/2019, this Court set aside the aforesaid order of the trial court and remitted the application Crl.R.P.No.1345/2019 4 filed by Kunjumon for fresh consideration by the trial court. 6. Thereafter, as per order dated 07.11.2019, the trial court considered afresh the application filed by Kunjumon for granting pardon and allowed it stating as follows: _“It is hereby ordered that this court do tender pardon to the accused Kunjumon K.D. S/o.Devasya on condition of his making a full and true disclosure of the whole circumstances and facts within his knowledge relative to the offence and to every other persons concerned in the commission of the offence. Accused No.1. K.D.Kunjumon shall be examined as a prosecution witness.”_ 7. The legality and propriety of the aforesaid order are challenged by the petitioner, who is the third accused in the case, in this revision petition. 8. Heard learned counsel for the petitioner and the learned Public Prosecutor. 9. Learned counsel for the petitioner contended that the impugned order passed by the learned Magistrate is illegal and it is against the principles laid down by the Apex Court in the Crl.R.P.No.1345/2019 5 decisions in **Commander Pascal Fernandes v. State of Maharashtra : AIR 1968 SC 594** and **Laxmipat Choraria v. State of Maharashtra : AIR 1968 SC 938** . Learned counsel would also contend that, while considering the application filed by the first accused for granting pardon, the learned Magistrate had not obtained any report from the Public Prosecutor and the report submitted by the investigating officer (Forest Range Officer) cannot be treated as a substitute for the report of the Public Prosecutor. 10. _Per contra_ , the learned Public Prosecutor submitted that, granting pardon to the first accused and making him an approver in the case is in the best interests of the prosecution and that the prosecution does not oppose the prayer made by the first accused in that regard. Learned Public Prosecutor also contended that, the petitioner who is a co-accused in the case, cannot challenge the order of the trial court granting pardon to another accused in the case. 11. Section 306(1) of the Code states that, with a view to obtain the evidence of any person supposed to have been Crl.R.P.No.1345/2019 6 directly or indirectly concerned in or privy to an offence to which the Section applies, the Chief Judicial Magistrate or a Metropolitan Magistrate at any stage of the investigation or inquiry into, or the trial of, the offence, and the Magistrate of the First Class inquiring into or trying the offence, at any stage of the inquiry or trial, may tender a pardon to such person, on condition of his making a full and true disclosure of the whole of the circumstances within his knowledge relative to the offence and to every other person concerned, whether as principal or abettor, in the commission thereof. Section 306(3) of the Code provides that, every Magistrate who tenders a pardon under sub-Section (1) shall record his reasons for so doing and whether the tender was or was not accepted by the person to whom it was made. 12. While disposing of Crl.M.C.No.6522/2019, this Court had directed the trial court to consider the application filed by Kunjumon in the light of the decisions of the Apex Court in **Commander Pascal Fernandes** (supra) and **Laxmipat Choraria** (supra). Crl.R.P.No.1345/2019 7 13. **Commander Pascal Fernades** (supra) was a case in which application was filed by one of the accused for tendering pardon to him. The application was filed before a Special Judge dealing with a case under the the Prevention of Corruption Act, 1947. In that case, the Apex Court held as follows: _“Ordinarily it is for the prosecution to ask that a particular accused, out of several, may be tendered pardon. But even where the accused directly applies to the Special Judges he must first refer the request to the prosecuting agency. It is not for the Special Judge to enter the ring, as a veritable director of prosecution. The power which the Special Judge exercises is not on his own behalf but on behalf of the prosecuting agency, and must, therefore, be exercised only when the prosecution joins in the request. The State may not desire that any accused be tendered pardon because it does not need approver's testimony. It may also not like the tender of pardon to the particular accused because he may be the brain behind the crime or the worst offender. The proper course for the Special Judge is to ask for a statement from the prosecution on the request of the prisoner. If the prosecution thinks that the_ Crl.R.P.No.1345/2019 8 _tender of pardon will be in the interests of a successful prosecution of the other offenders whose conviction is not easy without the approver's testimony, it will indubitably agree to the tendering of pardon. The Special Judge (or the Magistrate) must not take on himself the task of determining the propriety of tendering pardon in the circumstances of the case. The learned Special Judge did not bear these considerations in mind and took on himself something from which he should have kept aloof. All that he should have done was to have asked for the opinion of the Public Prosecutor on the proposal. But since the Public Prosecutor, when appearing in the High Court, stated that the prosecution also considered favourably the tender of pardon to Jagasia we say no more than to caution Magistrates and Judges in the matter of tender of pardon suo motu at the request of the accused. This practice is to be avoided”._ 14. In **Laxmipat Choraria** (supra), it was held that proper procedure shall be followed in the matter of granting pardon to an accused. 15. In the instant case, the Forest Range Officer concerned had filed a report before the trial court in support of Crl.R.P.No.1345/2019 9 the application filed by Kunjumon and also stating that granting pardon to him would help the prosecution to bring out the role of the other accused in the commission of the offences. The trial court had given a copy of the application filed by Kunjumon to the Assistant Public Prosecutor. The Assistant Public Prosecutor did not oppose the application before the trial court. Therefore, even though a specific report from the Assistant Public Prosecutor was not obtained by the trial court, it can be found that there was substantial compliance with the directions made by the Apex Court in **Commander Pascal Fernades** (supra). 16. Even before this Court, learned Public Prosecutor has submitted that granting pardon to the first accused Kunjumon would be in the interest of the prosecution and that the prosecution supports the application filed by the first accused. In **Commander Pascal Fernades** (supra), the Apex Court has stated as follows: _“But since the Public Prosecutor, when appearing in the High Court, stated that the prosecution also considered favourably the tender of pardon to Jagasia we say no more than to caution_ Crl.R.P.No.1345/2019 10 _Magistrates and Judges in the matter of tender of pardon suo motu at the request of the accused. This practice is to be avoided. Since the prosecution in this case also wants that the tender of pardon be made it is obvious that the appeal must fail. It will accordingly be dismissed._ (emphasis supplied). 17. Before allowing the application filed by Kunjumon for granting pardon, the trial court had ascertained, though not in writing, the views of the learned Assistant Public Prosecutor in the matter. The investigating officer had filed a report supporting the application filed by Kunjumon. Learned Magistrate also took into consideration the statement given by accused Kunjumon before the Deputy Range Forest Officer and the statement made by Kunjumon under Section 164 of the Code before the Magistrate concerned. Learned Magistrate has not acted suo motu on the application filed by the accused for granting pardon. 18. In the aforesaid circumstances, I find no sufficient ground to interfere with the impugned order passed by the learned Magistrate. Crl.R.P.No.1345/2019 11 19. Learned Public Prosecutor has submitted that, the petitioner who is a co-accused in the case, has no locus standi to challenge the order passed by the learned Magistrate granting pardon to another accused in the case. There is considerable force in this submission. 20. A co-accused has no legal right to raise any grievance against an order granting pardon to another accused in the case (See **C.B.I v. Ashok Kumar Aggarwal : (2013) 15 SCC 222** and **Ranadhir Basu v. State of West Bengal: AIR 2000 SC 908** ). However, the revisional powers can be exercised by the High Court suo motu, particularly to examine the correctness, legality or propriety of any finding, sentence or order and as to the regularity of any proceeding of the inferior court. 21. The other accused, including the petitioner herein, against whom evidence of the approver is likely to be used, shall have sufficient opportunity to cross-examine the approver when examined in the course of trial and show that his evidence is not reliable or he is not a trustworthy witness. Whatever material the petitioner intends to use against the approver, he would be Crl.R.P.No.1345/2019 12 entitled to use it against him during the trial to discredit him. Consequently, the revision petition is dismissed. (sd/-) **R.NARAYANA PISHARADI, JUDGE** jsr Crl.R.P.No.1345/2019 13 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **ANNEXURE 1 CERTIFIED COPY OF APPLICATION DATED 0603-2019 SUBMITTED BY THE SECOND RESPONDENT BEFORE THE MAGISTRATE COURT IN C.C. NO. 219/2017.** **ANNEXURE 2 CERTIFIED COPY OF REPORT DATED 26-062019 OF FOREST RANGE OFFICER, EDAMALAYAR FOREST DIVISION. ANNEXURE 3 CERTIFIED COPY OF ORDER DATED 04-092019 IN C.M.P. NO. 231/2019 IN C.C. NO. 219/2017 ON THE FILE OF JUDICIAL FIRST CLASS MAGISTRATE COURT, NO II, KOTHAMANGALAM.** RESPONDENTS' EXHIBITS : NIL TRUE COPY PS TO JUDGE