C.B.I.versusASHOK KUMAR AGGARWAL & ANR.

                   (2013] 14 S.C.R. 957

                            C.8.1.                                A
                              V.
           ASHOK KUMAR AGGARWAL & ANR.
            (Criminal Appeal No. 1837 of 2013)
                  NOVEMBER 22,        2013
                                                                  8
      [DR. B.S. CHAUHAN AND S.A. BOBDE, JJ.]

    Code of Criminal Procedure, 1973:

     s. 306 - Tender of Pardon - Power and role of Court -        c
Held: While considering grant of pardon, the Court is bound
to consider the consequences of grant of pardon taking into
consideration the policy of the State and comparing the
culpability of the person seeking pardon qua the other
accused.                                                          D
     ss. 397 and 401 - Revisional powers - Invocation of -
Right of co-accused to object to the application of accomplice
uls. 306 Cr.P. C. - Held: Though the accomplice has no legal
right to raise any grievance - But in the facts of the case,
substantial justice should not be defeated on mere                E
technicalities - The Court, in exercise of revisional powers u/
ss. 397 and 401, can suo motu examine the correctness,
legality and propriety of any finding, sentence or order and
as to regularity of any proceedings of the inferior Court.
                                                                  F
     Evidence Act, 1872 - ss. 114 Illustration (b) and 133 -
Evidence of accomplice - Evidentiary value - Held:
Accomplice is a competent witness, but his evidence can be
relied upon depending on the quality of his evidence -
Usually, such evidence needs to be substantially corroborated     G
- Conviction on such evidence should take place only in rare
and exceptional circumstances.

     Principle - Principle of public policy 'ex dolo ma/a non
oritur action' - Applicability of
                               957                                H
    958         SUPREME COURT REPORTS              [2013] 14 S.C.R.


A            Words and Phrases:

             'Public policy' - Meaning of, in the context of criminal
    trial.

      Zonal office of Delhi of the Enforcement Directorate
B conducted a search at the office and residential premises
  of one 'S'. Respondent No. 1 was the Deputy Director
  incharge of the Delhi Zone at the relevant time. During
  the search, a Fax message (debit advice sent from Swiss
  Bank Corporation, Zurich, Switzerland) was seized from
C the office of 'S'.

         'S' lodged a complajnt with the Enforcement
    Directorate alleging that the Fax message from Swiss
    Bank Corporation was a forged document. After "enquiry
0   conducted by the Enforcement Directorate, a letter from
    the Swiss Bank, which was later authenticated by the
    Indian Embassy, confirmed that the seized Fax message
    was a forged document.

      Thereafter Enforcement Directorate lodged a
E complaint and case was registered by CBI against
  respondent No. 1 and Respondent No. 2 (another official
  of Enforcement Directorate). Respondent No. 2
  confessed to have played an active role in forging the
  said Fax message on the instructions of respondent No.1.
F
       Respondent No. 2, then filed an application uls. 306
  Cr.P.C. for grant of pardon and becoming an approver.
  CBI did not object to the same. However, respondent No.
  1 filed an application seeking right to oppose the
G application for tendering pardon to respondent No. 2, and
  the same was rejected and the order was further affirmed
  by the High Court. Subsequently the application of
  respondent No. 2 seeking pardon and for making him an
  approver was allowed. The order was challenged by
H
        C.8.1. v. ASHOK KUMAR AGGARWAL                    959


respondent No. 1 before High Court u/s. 482 Cr.P.C. The           A
trial court obtained sanction for prosecution of
respondent No. 1 and it was challenged by respondent
No. 1 by filing writ petition. The High Court disposed of
the petition u/s. 482 quashing the order tendering pardon
and remitted the matter to trial court to decide the              B
application afresh in the light of the charge-sheet and the
relevant material. Hence the present appeal by CBI.

     In appeal respondent No. 1 contended that the reply
to Letter Rogatory rev.ealed that the Fax message in              C
question was a genuine document and not a forged or
fabricated one; that confessional statement of
respondent No. 2 revealed that his wife had indulged in
Hawala transactions with 'S' and she had been regularly
visiting the commercial premises of 'S'; that in view of
culpability of respondent No. 2, granting pardon is               D
revisable; and that if his rights are being adversely
affected, he has right to be heard.

    Dismissing the appeal, the Court
                                                                  E
     HELD: 1.1. The principle of public policy is: ex dolo
ma/o non oritur action. No court will lend its aid to a man
who founds his cause of action upon an immoral or an
illegal act. If, from the plaintiff's own stating or otherwise,
the cause of action appears to arise ex turpi causa, or the
                                                                  F
transgression of a positive law of this country, there the
court says he has no right to be assisted. Public policy,
though based on morality and its notions are inherently
subjective, has apparently been referred to as
synonymous with the policy of law or the policy of the
statute. However, in modern times it has become quite             G
distinct from that of policy of law as it has rightly been
said that a just thing may not be legally right as morality
and law are not co-extensive. In judicial sense, public
policy does not simply mean sound policy or good policy,
                                                                  H
    960      SUPREME COURT REPORTS           [2013] 14 S.C.R.


A but it means the policy of a State established for the
  public weal, either by law, by courts, or general consent.
  (Paras 18 and 19] (977-C-G]

       P. Rathinam Nagbhusan Patnaik vs. Union of India AIR
B 1994 SC 1844: 1994 (3) SCC 394; Kedar Nath Motani and
  Ors. vs. Prahlad Rai and Ors. AIR 1960 SC 213: 1960 SCR
  861; Murlidhar Agarwal and Anr. vs. State of U.P. and Ors.
  AIR 1974 SC 1924: 1975 (1) SCR 575; S. Khushboo vs.
  Kanniammal and Anr. AIR 2010 SC 3196: 2010 (5) SCR 322
  - relied on.
c
          Holmon vs. Johnson (1775) 1 Cowp 341 - referred to.

      1.2. The grant of pardon by a court under Section 306
  Cr.P.C. on being asked by the accused and duly
0 supported by the State is a judicial act and while
  performing the said act, the Magistrate is bound to
  consider the consequences of grant of pardon taking into
  consideration the policy of the State and to certain extent
  compare the culpability of the person seeking pardon
E qua the other co-accused. It is not correct to say that the
  court must invariably agree tp tendering a pardon if the
  proposal to pardon originates from the prosecution or if
  the prosecution supports it. If such view is accepted, it
  would completely marginalise the role of the court and
F take away the discretion of a judge in ensuring a fair trial
  and doing justice in a criminal case. (Paras 14 and 20]
  (976-A-C; 978-B-C]

       Saravanabhavan and Govindaswamy vs.           State of
    Madras AIR 1966 SC 1273 - followed.
G
        Santosh Kumar Satishbhushan Bariyar vs. State of
    Maharashta (2009) 6 SCC 498: 2009 (9) SCR 90; Bawa
    Faquir Singh vs. Emperor AIR 1938 PC 266 - relied on.
       1.3. A person on whose head a sword remains
H hanging may not depose the whole truth for the reason
  that if an accused is facina a larae number of criminal
         C.B.I. v. ASHOK KUMAR AGGARWAL                 961


cases and pardon is granted in one case only, he may           A
not be able to come out of the clutches of the police
pressure. Thus, it is quite possible that he may not be
able to speak the whole truth for the reason that he is
under a constant pressure of police and in such an
eventuality, the pardon may facilitate perjury which may       B
cause a serious prejudice to the co-accused. The Court
is only required to be not oblivious of such fact-situation.
[Para 23) [979-E-G]
    Laxmipat Choraria and Ors. vs. State of Maharashtra AIR
1968 SC 938: 1968 SCR 624 - relied on.                         C
    1.4. Section 114 Illustration (b) and Section 133 of the
Evidence Act, 1872 provide that an accomplice is a
competent witness and that his testimony can be relied
upon but depending upon the quality of the evidence.
                                                               0
While Section 133 reads that "Accomplice is a competent
witness and a conviction can be maintained on his
evidence", illustration (b) of Section 114 provides for
presumption that "an accomplice is unworthy of credit,
unless is corroborated in material particulars". Thus, in
                                                               E
practice conviction of a person on such evidence should
not take place except under very rare and exceptional
circumstances. Usually substantial corroboration is
required. This provision incorporates a rule of caution
to which the court must have regard. [Para 11) [973-H;
974-A-C]                                                       F

     Sheikh Zakir vs. State of Bihar AIR 1983 SC 911: 1983
(2) SCR 312; Niranjan Singh vs. State of Punjab AIR 1996
SC 3254; State of Tamil Nadu vs. Suresh and Anr. AIR 1998
SC 1044: 1997 (6) Suppl. SCR 203; Bhiva Doulu Patil vs.        G
State of Maharashtra AIR 1963 SC 599: 1963 SCR 830;
Bhuboni Sahu vs. The King AIR 1949 PC 257 - relied on.
      Charlotte Winsor vs. Queen (1866) 1 QB 308 - referred
to.
 ".
                                                               H
    962    SUPREME COURT REPORTS            [2013] 14 S.C.R.


A      1.5. The other relevant factors of the present case,
  which can be taken note of, by the court while granting
  pardon are: correspondence between the Judicial
  Authority of Switzerland and the CBI as well as the
  communication, particularly reply to the Letter Rogatory
B sent by Indian Authorities, letter dated 13.1.1998 sent by
  'S' to the Swiss Bank, letter dated 4.2.1998 sent by wife
  of 'S' to Swiss Bank CorporaUon and contradictory
  statements in the complaint dated 4.1.1998 by 'S' and the
  FIR dated 29.1.1999. The Court may also take note of the
c statutory provisions of Section 166A Cr.P.C. etc. and
  further correspondence between different departments           c
  on the issue of sanction for prosecution of the
  respondent. [Para 24] [979-H; 980-A-C]

       Lt. Commander Pascal Fernandes vs. State of
D Maharashtra and Ors. AIR 1968 SC 595; Jasbir Singh vs. ·
  Vipin Kumar Jaggi and Ors. AIR 2001 SC 2734: 2001 (1)
  Suppl. SCR 598; Prithipal Singh and Ors. vs. State of Punjab
  and Anr. (2012) 1 SCC 10: 2012 (14) SCR 862; Rameshwar
  vs. State of Rajasthan AIR 1952 SC 54: 1952 SCR 377;
E Sarwan Singh Rattan Singh vs. State of Punjab AIR 1957 SC
  537: 1957 SCR 953; Suresh Chandra Bahri vs. State of Bihar
  AIR 1994 SC 2420: 1994 (1) Suppl. SCR 483; K. Hashim
  vs. State of Tamil Nadu AIR 2005 SC 128: 2004 (6) Suppl.
  SCR 1; Chandran vs. State of Kera/a AIR 2011 SC 1594:
F 2011 (8) SCR 273 - relied on.
       Kenchava Korn Sanye//appa Hosmani and Anr. vs.
  Girima/lappa Channappa Somasagar AIR 1924 PC 209;
  Vallikannu vs. R. Singaperuma/ and Anr. AIR 2005 SC 2587:
G 2005 (1) Suppl. SCR 160; State (Delhi Admn.) vs. Jagjit
  Singh (1989) SC 598: 1988 (3) Suppl. SCR 1093 - referred
  to.

       2. So far as the entertainment of the case at the
    behest of the respondent by the High Court is concerned,
H
       C.B.I. v. ASHOK KUMAR AGGARWAL               963


he may not have a legal right to raise any grievance. A
However, the revisional powers under Section 397 read
with Section 401 Cr.P.C. can be exercised by the 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. B
These two Sections in Cr.P.C. do not create any right in
the favour of the litigant but only empower/enable the
High Court to see that justice is done in accordance with
recognised principles of criminal jurisprudence. The
grounds of interference may be, where the facts admitted c
or approved, do not disclose any offence or the court
may interfere where the facts do not disclose any offence
or where the material effects of the party are not
considered or where judicial discretion is exercised
arbitrarily or perversely. In the facts and circumstances 0
of the case, substantial justice should not be defeated on
mere technicalities. [Paras 26 and 27] (980-G-H; 981-A-C,
H]

     Ranadhir Basu v. State of West Bengal AIR 2000 SC
908: 2000 (1) SCR 646; Everest Apartments Co-operative      E
Housing Society Ltd., Bombay vs. State of Maharashtra and
Ors. AIR 1966 SC 1449: 1966 SCR 365; State of UP. vs.
Kai/ash Nath Agarwal and Ors. AIR 1973 SC 2210: 1973 (3)
SCR 728 - relied on.
                                                            F
                   Case Law Reference:
    AIR 1968 SC 595            relied on        Para 3
    2001 (1) Suppl. SCR 598    relied on        Para 3
    1968 SCR 624               relied on        Para 8      G

    (1866) 1 QB 308            referred to      Para 8
    AIR 1966 SC 1273           followed         Para 16
    2012 (14) SCR 862          relied on        Para 10     H
    964      SUPREME COURT REPORTS              (2013] 14 S.C.R.


A         1952 SCR 377              relied on           Para 10
          1957 SCR 953              relied on           Para 10
          1994 (1) Suppl. SCR 483   relied on           Para 10
          2004 (6) Suppl. SCR 1     relied on           Para 10
B
          2011 (8) SCR 273          relied on           Para 10
          1983 (2) SCR 312          relied on           Para 11
          AIR 1996 SC 3254          relied on           Para 11
c         1997 (6) Suppl. SCR 203 relied on             Para 11
          1963 SCR 830              relied on           Para 11
          AIR 1949 PC 257           relied on           Para 11
D         2009 (9) SCR 90           relied on           Para 15
          AIR 1938 PC 266           relied on           Para 15
          (1775) 1 Cowp 341         referred to         Para 18

E         1960 SCR 861              relied on           Para 18
          1975 (1) SCR 575          relied on           Para 18
          2010 (5) SCR 322          relied on           Para 18
          1994 (3) sec 394          relied on           Para 19
F
          AIR 1924 PC 209           referred to         Para 21
          2005 (1) Suppl. SCR 160   referred to         Para 21
          1988 (3) Suppl. SCR 1093 referred to          Para 22
G
          2000 (1) SCR 646          relied on           Para 26
          1966 SCR 365              relied on           P.ar.a 26
          1973 (3) SCR 728          relied on           Para 26
H
           C.B.I. v. ASHOK KUMAR AGGARWAL                    965


    CRIMINAL APPELLATE JURISDICTION : Criminal Appeal               A
No. 1837 of 2013.

    From the Judgment and Order dated 20. 08. 2007 of the
High Court of Delhi at new Delhi in CMM No. 3741 of 2011.

     K.V. Vishwanathan, ASG Ashok Dhamija, V. Mahana,               B
Sonia Dhamija, B.V. Bairam Das and B. Krishna Prasad for
the Appellant.

        P.N .. Puri, Yash Pal Dhingra for the Respondents.

        The Judgment of the Court was delivered by
                                                                    c
     DR. B.S. CHAUHAN, J. 1. This appeal has been
preferred against the impugned judgment and order dated
20.8.2007 passed by the High Court of Delhi at New Delhi in
Crl. Misc. (Main) No. 37 41 of 2001, by which it has set aside      D
the order of the Special Judge dated 7.9.2001 granting pardon
to respondent no. 2, Shri Abhishek Verma under Section 306
of Code of Criminal Procedure, 1973 (hereinafter referred to
as the 'Cr.P.C.') and making him an approver in the case
wherein respondent no.1, Ashok Kumar Aggarwal is also an            E
accused; and remanded the same to decide the application
afresh.

        2. Facts and circumstances giving rise to this appeal are
that:
                                                                    F
     A. A case was registered by the appellant, CBI on
29.1.1999 on the written complaint of one Abhijit Chakraborty,
Additional Director, Enforcement Directorate (hereinafter
referred to as 'ED'), Ministry of Finance, Government of India.
The complainant alleged that the Delhi Zonal office of the          G
Enforcement Directorate conducted a search at .the office i.e.
three shops at Hotel Maurya Sheraton, New Delhi and
residential premise i.e. G-51, Lajpat Nagar Ill, New Delhi of one
Subhash Chandra Barjatya on 1.1.1998. Respondent no.1 was
the Deputy Director incharge of Delhi Zone at the relevant time.    H
    966     SUPREME COURT REPORTS               [2013] 14 S.C.R.


A      B. During the searches, the officers of the ED seized a fax
  message (debit advice) from one of the shops of said Shri
  S.C. Barjatya, purportedly sent from Swiss Bank Corporation,
  Zurich, Switzerland. This fax message reflected a debit of US
  $ 150,000/- from the account of Royalle Foundation, Zurich,
B Switzerland in favour of one S.K. Kapoor, holder of account no.
  022-9-608080, Hong Kong & Shanghai Banking Corporation
  (HSBC), as per the advice of the customer i.e. Royalle
  Foundation.

C      C. Shri S.C. Barjatya filed a complaint dated 4.1.1998 with
  Director Enforcement alleging that the fax message from Swiss
  Bank Corporation was a forged document and had been
  planted in his premises during the course of the search
  undertaken on 1.1.1998 in order to frame him. The
  complainant and his employee had been illegally detained on
D the said night and were threatened and manhandled.

       D. The ED conducted an enquiry and Shri S.C. Barjatya ..
  was arrested on 28.1.1998 .. In March 1998, Shri Barjatya
  submitted a letter to ED allegedly procured by one Shri M.
E Kapoor, Chartered Accountant of Shri S.C. Barjatya from Eric
  Huggenberger, Attorney of Swiss Bank Corporation, Zurich,
  Switzerland, which was later on authenticated by the Bank and
  the Indian Embassy in Berne, confirming that the above said
  fax message was a forged document and was never issued
F by the Swiss Bank Corporation, Zurich, Switzerland.

       E. In view of the above facts, a prima facie view was taken
  that a criminal conspiracy had been hatched by the officers of
  the Delhi Zonal office to create a forged document and to use
  it as a genuine document to create false evidence and to
G implicate S.C. Barjatya.

       F. Respondent no.2 was arrested in November, 1999 and
  his statement was recorded under Section 161 Cr.P.C. before
  the CBI disclosing that he played an active role in forging the
H said fax on the instructions of respondent no.1. On 2.12.1999,
         C.B.I. v. ASHOK KUMAR AGGARWAL                      967
                 [DR. B.S. CHAUHAN, J.]

confessional statement of the respondent no.2 was recorded           A
in the court of Metropolitan Magistrate under Section 164
Cr.P.C., wherein he re-iterated his statement as made before
the CBI. During this period, respondent no.1 remained
absconding and could be apprehended only on 23.12.1999
from a hotel at Saharanpur wherein he was staying under a            B
fictitious name.

     G. Respondent no.2 filed an application under Section 306
Cr.P.C. for grant of pardon and becoming an approver on
18.7.2000. The Court entertained the said application and
issued notices on 3.8.2000. When the said application came           C
up for hearing c:in 1.9.2000, the Presiding Officer was on leave.
Thus, the matter was adjourned for 21.9.2000.

      H. The CBI filed a reply to the said application on 1.9.2000
stating that it had no objection if respondent no.2 was tendered     D
pardon and made an approver. However, as the investigation
was not complete, the application could not be decided.
Respondent no.1 filed an application on 30.10.2000, praying
that he should be given an opportunity to be heard before the
respondent no.2 is tendered pardon and made an approver.             E

     I. When the matter came up on 3.11 .2000 before the court,
respondent no.2 himself made an application that the
investigation was still pending and therefore, hearing of his
application seeking pardon be deferred and which was
accordingly ordered.
                                                                     F

     J. The learned Special Judge issued a Letter Rogatory
dated 29.1.2001 to the competent judicial authority in
Switzerland seeking certain information in respect of the
transactions _revealed by the said fax purported to be a forged      G
and fabricated document.

      K. Respondent no.2 filed an application dated 2.5.2001
for revival of the earlier application seeking pardon and making
him an approver, though the reply to the Letter Rogatory was · H
    968     SLJPREME COURT REPORTS              (2013] 14 S.C.R.


A   still awaited. However, the CBI filed its reply dated 3.5.2001
    and submitted that the reply to the Letter Rogatory would be
    only corroborative in nature and would not have any effect in
    deciding the application filed by respondent no.2.

B       L. Respondent no.1 moved an application on 3.5.2001
  claiming that he had a right to oppose the application filed by
  respondent no.2 seeking pardon. However, the said application
  was rejected by the learned Special Judge on the same day.
  The said order dated 3.5.2001 rejecting the application of
C respondent no.1 claiming the right to oppose the application
  filed by respondent no.2 was affirmed by the High Court vide
  order dated 10.7.2001 and by this Court vide order dated
  8.10.2001.

       M. The reply to the Letter Rogatory dated 18.7.2001 was
D received by the CBI on 30.7.2001 and the said reply was
  placed before the court. The CBI requested the court that it
  should be permitted to retain the same for further investigation
  which was allowed. The learned Special Judge allowed the
  application of respondent no.2 seeking pardon and made him
E an approver vide order dated 7.9.2001.

       N. Aggrieved, respondent no.1 filed a writ petition
  challenging the said order dated 7.9.2001 which was
  subsequently converted into a petition under Section 482
F Cr.P.C. i.e. Crl. Misc. (Main) No. 3741 of 2001. During the
  pendency thereof, charge sheet was filed on 28.6.2002 and the
  learned Special Judge took cognizance of the case vide order
  dated 8.7.2002. The Special Judge proceeded further and
  framed the charges vide order dated 17 .12.2005. In the
  meanwhile, the prosecution obtained sanction for prosecution
G of respondent no.1, and the same was challenged by the
  respondent no.1 by preferring Writ Petition No. 140112005.

      0. The High Court dealt with the petition under Section 482
  Cr.P.C. vide impugned judgment and order dated 20.8.2007
H and quashed the order dated 7.9.2001. The matter was
        C.B.I. v. ASHOK KUMAR AGGARWAL                     969
                [DR. B.S. CHAUHAN, J.]

remitted to the learned Special Judge to decide the application   A
afresh in light of the charge sheet and the relevant material
available with the CBI.

    Hence, this appeal.

      3. Shri K.V. Vishwanathan, learned ASG appearing for the B
appellant has submitted that ·the order passed by the Special
Judge on 7.9.2001 was in consonance with the law laid down
by this Court. The question of examining the culpability or
comparing the same between the accused does not arise.
Pardon can also be granted to an accused whose culpability C
is higher than that of the other accused in the crime. The
Special Judge has passed the order strictly observing and
following the ratio laid down by this court in this regard in Lt.
Commander Pascal Fernandes v. State of Maharashtra &
Ors., AIR 1968 SC 595 and subsequent judgment in Jasbir o
Singh v. Vipin Kumar Jaggi & Ors., AIR 2001 SC 2734. Th.e
High Court erred in setting aside the order of the Special Judge
and remanding the case to be decided afresh. The High Court
failed to appreciate that respondent no.1 had earlier
approached the High Court and this court moving various E
applications but did not succeed. Those orders had attained
finality, however, were not taken note of by the High Court. The
oral direction given by the Special Judge that the CBI should
file the list of cases being investigated by different agencies
involving re¢pondent no.2 was not complied with. However,
                                                                  F
failure on part of the CBI to do so would not materially affect
the decision of the Special Judge granting pardon and making
respondent no.2 an approver. Granting pardon and making an
accused approver is a matter between the court and the
applicant accused. The co-accused has no right to be heard
before any forum. Therefore, the impugned order is liable to be G
set aside.

    4. Shri Maninder SJngh, learned counsel appearing on
behalf of respondent no.2, has supported the case of the
appellant and adopted the submissions made by the learned         H
   970      SUPREME COURT REPORTS                 [2013] 14 S.C.R.


A ASG and further submitted that order granting pardon by the
  Special Judge did not require interference. The High Court
  erred in passing the impugned order.

         5. Per contra, Shri Ram Jethmalani, learned senior counsel
  appearing for respondent no.1 has opposed the •appeal
B contending that the reply to the Letter Rogatory itsel'f revealed
  that the fax message recovered from the premises of Shri S.C.
  Barjatya was a genuine document and _not a forged and
  fabricated one. In fact, there had been communication.
  between Swiss Bank Corporation and Shri S.C. Barjatya and
C those letters had been an.nexed b:y the Judicial Authority in
  Switzerland alongwith the reply to the Letter Rogatory which
  clearly revealed that there indeed had been communication and
  the fax message recovered from the premises of Shri S.C.
  Barjatya was a genuine document. The Revenue Department
D itself has accepted that the fax was genuine and not a forged
  document in other proceedings initiated against the
  respondent no. 1. In view of the provisions of Section 166-A
  Cr.P.C., documents sent by the Swiss Authority in reply to the
  Letter Rogatory are in fact evidence collected during the course
E of investigation. Respondent no.2 is facing multiple criminal
  cases involving serious charges, including espionage etc. and
  currently is in jail. The version given by respondent no.2 in his
  statement under Section 161 Cr.P.C. before the CBI or in his
  confessional statement under Section 164 Cr.P.C. reveals that
F his wife Smt. Asmita Verma had indulged in Hawala
  transactions with S.C. Barjatya and she had regularly been
   visiting the latter's commercial premises in relation thereto and
   respondent no.1 simply wanted to know more about the same.
  The culpability of respondent no.2 is much more. More so, the
G order passed by the Special Judge granting pardon suffers
   from non-application of mind as the letters written by the Bank
   Corporation of Switzerland were not examined by the court due
   to their retention by CBI. In fact, if those letters are taken into
   consideration, the criminal proceedings against respondent
H no.1 are liable to be quashed. The order granting or rejecting
         C.B.I. v. ASHOK KUMAR AGGARWAL                       971
                 [DR. B.S. CHAUHAN, J.]
the prayer of pardon is revisable. If the rights of the co-accused   A
are adversely affected, he has a right to be heard. Therefore,
the appeal is liable to be dismissed.

     6. We have considered the rival submissions made by
learned counsel for the parties and perused the record.              B
     7. In Lt. Commander Pascal Fernande~ (supra),
Hidayatullah J. (as His Lordship then was) speaking for a three-
Judge Bench dealt with the issue involved herein in great detail
and explained the scope of the provisions of Section 337 of
the Code of Criminal Procedure, 1898 (hereinafter referred to        C
as the 'old Code') observing as under:

     "The next question is whether the Special Judge acted
     with due propriety in his jurisdiction. Here the interests
     of the accused are just as important as those of the            o
     prosecution. No procedure or action can be in the
     interest of justice if it is prejudicial to an accused.
     There are also matters of public policy to consider.
     Before the Special Judge acts to tender pardon, he must,
     of course, know the nature of the evidence the person           E
     seeking conditional pardon is likely to give, the nature
     of his complicity and the degree of his culpability in
     relation to the offence and in relation to the co-
     accused. What is meant by public policy is illustrated,
     by a case from Dublin Commission Court (Reg v. Robert
     Dunne, 5 Cox Cr. cases 507) in which Torrens, J., on
                                                                     F
     behalf of himself and Perrin, J., observed as follows:

            "From what I can see of this case, this witness
            Bryan, who has been admitted as an approver
            by the Crown is much the more criminal of the            G
            two on his own showing... I regret that this
            witness, Bryan, has been admitted as evidence
            for the Crown and thus escaped being placed
            upon his trial. ·it is the duty of Magistrates to be
                                                                     H
    972      SUPREME COURT REPORTS                [2013] 14 S.C.R.


A               very cautious as to whom they admit to give
                evidence as approvers, and they should
                carefully inquire to what extent the approver is
                mixed up with the transaction, and if he be an
                accomplice, into the extent of his guilt.. .. "
B
                                                 (Emphasis added)

          This Court further observed :

          "The power which the Special Judge exercises is not on
c         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
D         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 tender
          of pardon will be in the interests of a successful
E
          prosecution of the other offenders whose conviction is not
          easy without the approver's testimony, it will indubitably
          agree to the tendering of pardon."

         8. In Laxmipat Choraria & Ors. v. State of Maharashtra,
F   AIR 1968 SC 938, this Court while dealing with a similar issue
    under the provisions of the old Code, after placing reliance on
    the judgment in Charlotte Winsor v. Queen, (1866) 1 QB 308
    observed as under:

G         "To keep the sword hanging over the head of an
          accomplice and to examine him as a witness is to
          encourage perjury. Perhaps it will be possible to enlarge
          Section 337 to take in certain special laws where
          accomplice testimony will always be useful and witness wiil
          come forward because of the conditional pardon offered
H
        C.B.I. v. ASHOK KUMAR AGGARWAL                   973
                [DR. B.S. CHAUHAN, J.)

    to them ..... "                                              A

                                          (Emphasis added)

    9. In Saravanabhavan and Govindaswamy v. State of
Madras, AIR 1966 SC 1273, Justice Hidayatullah, speaking for
the majority of the Constitution Bench observed that the         B
antecedents of the approver do not really make him "either a
better or worse witness" but his evidence can only be accepted
on its own merit and with sufficient corroboration.

     10. In Prithipal Singh & Ors. v. State of Punjab & Anr., C
(2012) 1 sec 1O, this Court considered a case where an
accomplice who had not been put on trial was examined as a
witness who deposed in the court after taking oath; and after
considering earlier judgments particularly Rameshwar v. State
of Rajasthan, AIR 1952 SC 54; Sarwan Singh Rattan Singh o
v. State of Punjab, AIR 1957 SC 637; Suresh Chandra Bahri
v. State of Bihar, AIR 1994 SC 2420; K. Hashim v. State of
Tamil Nadu, AIR 2005 SC 128; and Chandran v. State of
Kera/a, Al R 2011 SC 1594 held that an accomplice is a
competent witness and that conviction can rest upon his E
uncorroborated testimony, yet the court is entitled to presume
and may indeed be justified in presuming in the generality of
cases that no reliance can be placed on the evidence of an
accomplice unless the evidence is corroborated in material .
particulars, which means that there has' to be some F
independent witness tending to incriminate the particular
accused in the commissi~n of the crime. The deposition of an
accomplice in a crime who had not been made an accused and
put to trial can be relied upon, however, his evidence is required
to be considered with care and caution. Such a person is a
competent witness as he deposes in the court after taking oath G
and there is no prohibition in law not to act upon his deposition
without corroboration.

     11. Section 114 Illustration (b) and Section 133 of the
Indian Evidence Act, 1872 provide for the same that an           H
    974      SUPREME COURT REPORTS                 [2013] 14 S.C.R.


A   accomplice is a competent witness and that his testimony can
    be relied upon but depending upon the quality of the evidence.
    While Section 133 reads that "Accomplice is a competent
    witness and a conviction can be maintained on his evidence",
    illustration (b) of Section 114 provides for presumption that "an
s   accomplice is unworthy of credit, unless is corroborated in
    material particulars". Thus, in practice conviction of a person
    on such evidence should not take place except under very rare
    and exceptional circumstances. Usually substantial
    corroboration is required. This provision incorporates a rule of
c   caution to which the court must have regard. (Vide: Sheikh
    Zakir v. State of Bihar, AIR 1983 SC 911; Niranjan Singh v.
    State of Punjab, AIR 1996 SC 3254; and State of Tamil Nadu
    v. Suresh & Anr., AIR 1998 SC 1044).

         In Bhiva Doulu Patil v. State of Maharashtra, AIR 1963
D   SC 599, this court considered the "judgment in Bhuboni Sahu
    v. The King, AIR 1949 PC 257 wherein it has been observed
    as under:

          "The danger of acting upon accomplice evidence is not
E         merely that the accomplice is on his own admission a
          man of bad character who took part in the offence and
          afterwards to save himself betrayed his former associates,
          and who has placed himself in a position in which he can
          hardly fail to have a strong bias in favour of the
F         prosecution; the real danger is that he is telling a story
          which in its general outline is true, and it is easy for him
          to work into the story matter which is untrue. He may
          implicate ten people in an offence, and the story may be
          true in all its details as to eight of them, but untrue as to
          the other two, whose names have been introduced
G
          because they are enemies of the approver. This
          tendency to include the innocent with the guilty is
          peculiarly prevalent in India, as judges have noted on
          innumerable occasions, and it is very difficult for the
          court to guard against the danger."
H
        C.B.I. v. ASHOK KUMAR AGGARWAL                       975
               [DR. B.S. CHAUHAN, J.]

    This Court placing reliance on the above, held as under:         A

     "7. The combined effect of Ss. 133 and 114, illustration
    (b) may be stated as follows: According to the former,
    which is a rule of law, an accomplice is competent to give
    evidence and according to the latter which is a rule of 8
    practice it is almost always unsafe to convict upon his
    testimony alone. Therefore though the conviction of an
    accused on the testimony of an accomplice cannot be
    said to be illegal yet the Courts will, as a matter of
    practice, not accept the evidence of such a witness without C
    corroboration in material particulars."

     12. In Jasbir Singh (supra) this Court dealt with the issue
observing that the court while considering the application for
tendering pardon is not to consider the possible weight of the
approver's evidence even before it was given. The evidence           D
of an approver does not differ from the evidence of any other
witness except that the evidence of the approver is looked upon
with more caution. The suspicion of such evidence '11ay be
removed and if the evidence of an approver is found to be
trustworthy and acceptable, then the evidence might will be          E
decisive in securing a conviction. Thus, the court while
exercising such power should not assess the probative value
of the possible evidence of the person seeking permission to
become an approver in anticipation and wholly in the abstract.
                                                                     F
     13. The observations made in Lt. Commander Pascal
Fernandes (supra) were sought to be construed by the learned
ASG as requiring the court to indubitably agree to the tendering
of pardon if the prosecution thinks that the tender of pardon will
be in the interests of a successful prosecution of the other         G
offenders whose conviction is not easy without the approver's
testimony. We do not agree since this court was contemplating
a situation where the proper course for the Judge was to ask
for a statement from the prosecution and as the prosecution
emphasised that it indubitably agreed to the tendering of            H
    976      SUPREME COURT REPORTS                [2013] 14 S.C.R.


A   pardon as it will be in the interests of a successful prosecution
    of the other offenders.

          14. It was contended by Mr. K.V. Vishwanathan, learned
    ASG, that the court must invariably agree to tendering a pardon
    if the proposal to pardon originates from the prosecution or if
8
    the prosecution supports it. Since the prosecution, as in this
    case, supported the plea of respondent no.2 for grant of pardon
    and for becoming an approver, the High Court committed an
    error in reversing the order of the Special Judge. If this
    contention is accepted, it would completely marginalise the role
C   of the court and take away the discretion of a judge in ensuring
    a fair trial and doing justice in a criminal case. We, therefore,
    reject the contention.

         15. The aforesaid view stands fortified by the judgment of
D   this Court in Santosh Kumar Satishbhushan Bariyar v. State
    of Maharashta, (2009) 6 SCC 498, wherein it has been held
    that the order of pardon cannot be passed mechanically
    and the court has to apply its mind while exercising such
    powers. In Ba~,;a Faquir Singh v. Emperor, AIR 1938 PC 266,
E   while dealing with the issue of grant of pardon under the
    provisions of the old Code, it was held that tendering pardon
    under the provisions of Section 337 of the old Code is "a
    judicial act and under the special precautions, rules and
    consequences which the statute sets out''.
F      16. Section 306 Cr.P.C. is verbatim to Section 337 of the
  old Code. There is no change at all with respect to the power
  to grant pardon. More so, exercise ofjudicial power in relation
  to grant of pardon is required so as to remove any suspicion ·
  of political consideration or to ensure that the pardon is in the
G interest of justice (Law Commission of India - 48th Report, July
  1972). The Constitution Bench in Saravanabhavan and
  Govindaswamy (supra) considered the issue of veracity/
  reliability of the evidence of an approver and not who can be
  made an approver or what is the role of the court while
H considering the application for grant of pardon.
         C.B.I. v. ASHOK KUMAR AGGARWAL                         977
                 [DR. B.S. CHAUHAN, J.]

     17. No judgment had been brought to our notice wherein             A
the aforesaid quoted portions of three-Judge Bench judgments
in Lt. Commander Pascal Fernandes (supra) and Laxmipat
Choraria (supra) had been taken into consideration. The trend
has been that without making reference to the afore-mentioned
observations in the aforesaid judgments, this Court has                 B
observed that the court while exercising the power to grant
pardon need not examine the culpability of the accused seeking
pardon.

     18. The concept of public policy was explained by Lord
Mansfield in Holmon v. Johnson, (1775) 1 Cowp 341 observing             C
that the principle of public policy is: ex dolo malo non oritur
action. No court will lend its aid to a man who founds his cause
of action upon an immoral or an illegal act. If, from the plaintiff's
own stating or otherwise, the cause of action appears to arise
ex turpi causa, or the transgression of a positive law of this          D
country, there the court says he has no right to be assisted. (See
also: Kedar Nath Motani & Ors. v. Prah/ad Rai & Ors., AIR
1960 SC 213).

     Public policy, though based on morality and its notions are        E
inherently subjective, has apparently been referred to as
synonymous with the policy of law or the policy of the statute.
However, in modern times it has become quite distinct from that
of policy of law as it has rightly been said that a just thing may
not be legally right as morality and law are not co-extensive.          F
(Vide: Murlidhar Agarwal & Anr.. v. State of U.P. & Ors., AIR
1974 SC 1924; and S. Khushboo v. Kanniammal & Anr., AIR
2010 SC 3196).

      19. In P. Rathinam Nagbhusan Patnaik v. Union of India,
AIR 1994 SC 1844, this Court observed that in judicial sense,           G
public policy does not simply mean sound policy or good policy,
but it means the policy of a State established for the public weal,
either by law, by courts, or general consent.

     20. From the aforesaid discussion on the issue: it is              H
    978      SUPREME COURT REPORTS                [2013] 14 S.C.R.


A   evident that the law laid down by this Court in Lt. Commander
    Pascal Fernandes (supra) and Laxmipat Choraria (supra) still
    holds the field. In spite of our repeated query, no case where a
    different view from the aforesaid two cases has been taken
    could be brought to our notice.
B
       In view of the above and considering the judgment of the
  Privy Council in Bawa Faquir Singh (supra), we are of the view
  that the grant of pardon by a court under Section 306 Cr.P.C.
  on being asked by the accused and duly supported by the State
  is a judicial act and while performing the said act, the
C Magistrate is bound to consider the consequences of grant of
  pardon taking into consideration the policy of the State and to
  certain extent compare the culpability of the person seeking
  pardon qua the other co-accused.

D      21. For illustration, we take a case where a person hires
  a professional criminal to kill his entire family i.e. father and
  brothers and succeeds in the said mission. Later on, if he turns
  approver, the mercenary who got paid to execute the
  conspiracy gets hanged while the principal accused who hired
E the mercenary has not only escaped the liability in criminal trial
  but would also succeed in inheriting the entire property of his
  family which otherwise is not permissible in view of the law of
  succession, etc.

        Under Section 25 of the Hindu Succession Act, 1956, the
F   murderer stands d iualified for inheritance. The provision
    reads as under:

          "25. Murderer disqualified - A person who commits murder
          or abets the commission of murder shall be disqualified
G         from inheriting the property of the person murdered, or any
          other property in furtherance of the succession to which he
          or she committed or abetted the commission of the
          murder."

          The Section deals with the disqualification from inheritance
H
         C.B.I. v. ASHOK KUMAR AGGARWAL                      979
                 [DR. B.S. CHAUHAN, J.]

of a person who commits murder or abets commission of                A
murder. The provision of the section provides for a statutory
recognition to the Hindu Law whereunder the rule is applied not
on the basis of text but upon the principle of justice, equity and
good conscience. (Vide: Kenchava Kom Sanyellappa
Hosmani & Anr. v. Girimallappa Channappa Somasagar, AIR              B
1924 PC 209). The rule had been made applicable by all courts
consistently including this court as is evident from the judgment
in Val/ikannu v. R. Singaperumal & Anr., AIR 2005 SC 2587.

     22. Once the immunity extends to the accused and the            c
accused is made an approver, he stands discharged
whereupon he seizes to be an accused and would be examined
only as a witness unless the said privilege is revoked on
violation of the condition of disclosing complete truth. [See:
State (Delhi Admn.) v. Jagjit Singh, AIR 1989 SC 598; and            D
Jasbir Singh (supra)].

     Thus, the illustration cited hereinabove quoting Section 25
of the Act 1956 reflects the policy of law and the court must be
alive to such situations while passing an order otherwise the        E
consequences may be too abhorrent.

     23. In Laxmipat Choraria (supra), this Court observed that
a person on whose head a sword remains hanging may not
depose the whole truth for the reason that if an accused is          F
facing a large number of criminal cases and pardon is granted
in one case only, he may not be able to come out of the clutches
of the police pressure.

      Thus, it is quite possible that he may not be able to speak    G
the whole truth for the reason that he is under a constant
pressure of police and in such an eventuality, the pardon may
facilitate perjury which may cause a serious prejudice to the co-
accused. The Court is only required to be not oblivious of such
fact-situation.                                                      H
    980     SUPREME COURT REPORTS                [2013] 14 S.C.R.


A      24. The other facts which could also be taken note of are
  the correspondence between the Judicial Authority of
  Switzerland and the CBI as well as the communication,
  particularly reply to the Letter Rogatory sent by Indian
  Authorities, letter dated 13.1.1998 sent by S.C. Barjatya to the
B Swiss Bank, letter dated 4.2.1998 sent by Manju Barjatya, wife
  of S.C. Barjatya to Swiss Bank Corporation and contradictory
  statements in the complaint dated 4.1.1998 by S.C. Barjatya
  and the FIR dated 29.1.1999. The Court may also take note of
C the statutory provisions of Section 166A Cr.P.C. etc. and further
  correspondence between different departments on the issue of
  sanction for prosecution of the respondent.

       25. We do not say that the court does not have jurisdiction
  to grant pardon nor we say that the court can be directed by
D the superior court to consider the matter in a particular manner.
  We simply suggest that these are relevant factors which must
  be kept in mind by the court while exercising such power. It is
  further clarified that we do not want to suggest that the finding
E recorded by the criminal court is binding on civil court as the
  issue : .~ised by the learned ASG that the matter of succession
  under Section 25 of the Act 1956 has to be dealt with by a civil
  coui t ;;:id the civil court may not be bound by the findings
  recorded by the criminal court nor we suggest that the court has
F to examine each and every point meticulously. The court may
  consider all relevant facts and take a prima facie viei.v on the
  basis of the same.

       26. So far as the entertain ient of the case at the behest
G of the respondent by the High Court is concerned, we may state
  that he may not have a legal right to raise any grievance,
  particularly in view of the law laid down by this Court in Ranadhir
  Basu v. State of West Bengal, AIR 2000 SC 908. However,
  the revisional powers under Section 397 read with Section 401
H Cr.P.C. can be exercised by the court suo motu, particularly
         C.B.I. v. ASHOK KUMAR AGGARWAL                      981
                 [DR. B.S. CHAUHAN, J.]

to examine the correctness, legality or propriety of any finding,    A
sentence or order and as to the regularity of any proceeding
of the inferior court.

     These two Sections in Cr.P.C. do not create any right in
the favour of the litigant but only empower/enable the High. Court   •
to see that justice is done in accordance with recognised
principles of criminal jurisprudence. The grounds of interference
may be, where the facts admitted or approved, do not disclose
any offence or the court may interfere where the facts do not
disclose any offence or where the material effects of the party      C
are not considered or where judicial discretion is exercised
arbitrarily or perversely.

     (See also: Everest Apartments Co-operative Housing
Society Ltd., Bombay v. State of Maharashtra & Ors., AIR             D
1966 SC 1449; and State of UP. v. Kai/ash Nath Agarwal &
Ors., AIR 1973 SC 2210).

     27. Indisputably, respondent no.1 has agitated the issue
regarding the application filed by respondent no.2 seeking           E
pardon and had Jost before the High Court as well as before
this Court as the Special Leave Petition stood dismissed.
However, these facts had not properly been placed by the
appellant before the High Court. While passing the impugned
judgment and considering the fact that the material required to      F
be considered had not even been placed before the court while
disposing of the application for grant of pardon and the manner
in which the application had been dealt with as the respondent
no.2 and the present appellant had been playing hide and seek
with the court and in spite of the fact that the court had asked     G
the appellant to disclose the criminal cases pending against
the respondent no.2, no information was furnished to the court,
we are of the considered opinion that in the facts and
circumstances of the case, substantial justice should not be         H
    982       SUPREME COURT REPORIS               [2013] 14 S.C.R.


A   defeated on mere technicalities.

          28. In view of the above, we do not find any cogent reason
  to interfere with the impugned judgment and order. The appeal
  lacks merit and is accordingly dismissed. Interim order passed
B earlier stands vacated.

        Before parting with the case, we would clarify that no
    observation made by us in this judgment, on factual issues
    should be taken as final by the court concerned. The court shall
c   proceed in accordance with law.
    Kalpana K. Tripathy                             Appeal dismissed.