STATE THROUGH CBI, CHENNAIversusV. ARUL KUMAR

                           [2016] 2 S.C.R. 486



A                  STATE THROUGH CBI, CHENNAI
                                    v.

                            V. ARUL KUMAR
                    (Criminal Appeal No. 499of2016)
B                             MAY 13, 2016
               [A. K. SIKRI AND R. K. AGRAWAL, JJ.]
         Code of Criminal Procedure, 1973 - s.306 - Tender ofpardon
  to approver - Charge sheet filed against respondent and others
  before the Magislrate under Penal Code and Prevenlion of
c Corruption  Act - Five individuals taken as approvers after recording
  !heir confessional stalements - Applicalion by prosecutor uls. 306
  for gra/1/ of pardo11 - Grant of pardo11 by Magistrale and thereafter
  committal of case to Special Judge - Special Judge upheld !he order
  of granl of pardon - However, High Courl held thal the Special
D Judge is empowered to grant tender ofpardon and such order passed
  by !he Magistrate is no/ lawful - On appeal, held: In cases where
  charge sheet is filed before /he Magistrale, 1he Magislrate is duly
  empowered lo gra11t tender of pardo11 uls. 306 even i11 respect of
  the cases which are friable by the Sessio11 Courl or by the Special
  Judge for !he offences under the PC Act - Preve11tion of Corruption
E
  Act, /988.
          Allowing the appeal, the Court
          HELD: 1.1 Sub-section (1) of Section 306 of the Code of
    Criminal Procedure, 1973 very categorically and unambiguously
F   mentions Metropolitan Magistrate as one of the Judicial Officers
    who can exercise the power of tender of pardon to accomplice.
    Thus, Metropolitan Magistrate is specifically given such a power
    under Section 306 of the Code. Suh-section (2) of Section 306
    makes it clear that this Section applies even to those offences
    which are triable exclusively by the Court of Session or hy the
G   Court of a Special Judge appointed under the Criminal Law
    Amendment Act, 1952. Thus, even where the cases are triable
    by a Special Jildge, the Metropolitan Magistrate is authorised to
    grant tender of pardon. Sub-section (5) makes the position beyond
    any pale of doubt, that even when an offence is triable by a Session
H   Judge, the Magistrate has the requisite power to take cognizance
                                   486
   STATE THROUGH CBI, CHENNAI v. Y. ARUL KUMAR                          487



and grant tender of pardon and, thereafter, commit the case to           A
the Special Judge for trial. Section 307 of the Code restricts the
power to grant tender of pardon by conferring it in the hands of
the Court to which the commitment is made, only after the
commitment of a case. This provision, also lends support to the
position taken by the appellant, as it makes it clear that after the
                                                                         B
committal of the case, it is only that Court to which the
commitment is made has the power to tender a pardon, thereby
implying that before the commitment of case, Magistrate is duly
empowered. [Para 14) [496-E-H; 497-A-B]
      1.2 On a plain reading of Section 306 in conjunction with
Section 307 of the Code, it becomes manifest that Magistrate is
                                                                         c
duly empowered to grant tender of pardon even in respect of the
cases which are triable by the Session Court or by Special Judge.
[Para 15] [497-C]
      P.C. Mishra v. State (CBI) and Another 2014 (4) SCR
      183 : (2014) 14 sec 629 - relied on.                               D

       1.3 Sub-section (1) of Section 5, while empowering a Special
Judge to take cognizance of offence without the accused being
conimitted· to him for trial, only has the effect of waiving the
otherwise mandatory requirement of Section 193 of the Code.
Section 193 stipulates that the Court of Session cannot take             E
cognizance of any offence as a Court of original jurisdiction unless
the case has been committed to it by a Magistrate under the
Code. Thus, embargo of Section 193 of the Code. has been lifted.
It, however, nowhere provides that the cognizance cannot be
taken by the Magistrate at all. There is, thus, an option given to       F
the Special Judge to straightway take cognizance of the offences
and not to have the committal route through a Magistrate.
However, normal procedure prescribed under Section 190 of the
Code empowering the Magistrate to take cognizance of such
offences, though triable by the Court of Session, is not. given a
go-bye. Both the alternatives are available. In those cases where        G
chargesheet is filed before the Magistrate, he will have to commit
it to the Special Judge. In this situation, the provisions of Section
306 of the Code would be applicable and the Magistrate would
be empowered to exercise the power under the said provision.
In contrast, in those cases where Special Judge takes cognizance         H
488             SUPREME COURT REPORTS                     [2016] 2 S.C.R.


A     of offence directly, as he is authorised to do so in view of Section
      5(2) of PC Act, Section 306 of the Code would get bypassed and
      as the Special Judge has taken cognizance, it is Section 307 which
      would become applicable. Section 5(2) of PC Act makes this
      position clear by prescribing that it is the Special Judge who would
      exercise his powers to tender of pardon as can clearly be spelled
8
      out by the language employed in that provision. Section 5(2) is to
      be read in conjunction with Section 5(1). Once the proceedings
      are committed to the Court of Session, it is that court only to
      which commitment is made can grant pardon to the approver.
      [Para 17] [500-E-H; 501-A-C)
c           1.4 Section 460 of the Code treats some of the acts of the
      Magistrate, specified in clauses (a) to (i) as 'irregularities'. These
      are treated as irregularities even when the Magistrate is not
      'empowered by law to do' those acts. Tendering a pardon under
      Section 306 of the Code is included in those acts of
 D    "irregularities". Therefore, even if it is presumed that the
      Magistrate was not empowered (though held otherwise), the order
      passed by the Magistrate is saved by s. 460(g). [Para 20] [501-
      H; 502-A-B]
         1.5 The High Court formulated wrong question for
 E consideration. The question was not as to whether Special Judge
   is competent to tender of pardon. The question was as to whether
   Magistrate rightly passed the order of tender of pardon. The High
   Court took circuitous route by answering that Special Judge was
   competent and from that concluded that Magistrate was not
   competent. The impugned judgment of the High Court does not
 F stand legal scrutiny and is set aside. [Paras 21-231 [502-H; 503-
   A-C]
         Rajendra Singh v. Slate of Rajasthan RLW 2003 (3)
         Raj. 1865 - disapproved.
         Bangaru Laxman v. Slale (lhrough CBI) and Ano/her
 G       2011 (13) SCR 268:(2012) 1 SCC 500; State of HP. v.
         Surinder Mohan and Others 2000 (1) SCR 659:(2000)
         2 SCC 396; A. Devendran 1( State of Tamil Nadu 1997
         (4) Suppl. SCR 591:(1997) 11 SCC 720 - referred to.
                             Case Law Reference
 H    2011 (13) SCR 268               referred to.            Para4
    STATE THROUGH CBI, CHENNAI v. V. ARUL KUMAR                                489



2014 (4) SCR 183             relied on.             Para7                       A
2000 (1) SCR 659             referred to.           Para 7
RLW 2003 (3) Raj. 1865       disapproved.           Para 11
1997 (4) Suppl. SCR 591      referred to.           Para 12
      CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 499 of20 I 6                                                                B
      From the Judgment and Order dated 05.03.2013 in Criminal
Revision Case No. 1244 of2012 passed by the High Court of Madras
      Neeraj K. Kaul, ASG, Samar S. Kachwalia, Raghavendra M. Bajaj,
B. V. Balaram Das, Advs. for the Appellant.
     R. Basant, Sr. Adv., Anish R. Shah, KarthikAshok, Abinash Kumar            c
Mishra, Advs. for the Respondents.
      The Judgment of the Court was delivered by
      A. K. SIKRI, J. I. Leave granted.
       2. The brief facts leading to the filing of the present appeal by the
State, challenging the correctness and legality of order dated 05 .03.2013      D
passed by High Court of Madras, are as follows:
         A case was registered on 31.01.2004 against the respondent
herein who was then Regional Chief of Housing Urban Development
Corporation Ltd., Chennai, along with other co-accused. FIR was
submitted to the Principal Special Judge, CBI on the allegation thatthe         E
respondent herein has dishonestly sanctioned 64 loans which were
processed by A-2 to various individuals who sought loans for purchase
of plots developed by A-3 (firm) knowing fully well thatA-3 was not a
reputed promoter under the HUDCO Niwas Scheme. It was further
alleged that pursuant to a criminal conspiracy, the respondent sanctioned
                                                                                F
loans for inflated amounts causing wrongful loss ofRs.21,07,546.50 to
HUDCO. After completion of inquiry, a chargesheet was filed against
the respondent and 15 others on 30.01.2006 under Section 120-B read
with Sections 420, 467, 468, 471 of the Indian Penal Code (for short the
'!PC') and Section 13(2) read with Section 13(1) of the Prevention of
Corruption Act (for short the 'PC Act').                                        G
       3. As per the appellant, during the course of investigation, five
individuals were taken as approvers after recording their confessional
statements. Accordingly, an application was filed by the Prosecutor
under Section 306 of the Criminal Procedure Code (for short the 'Code')
for grant of pardon. This application was entertained by the Metropolitan       H
490             SUPREME COURT REPORTS                         [2016] 2 S.C .R.



A     Magistrate who passed the orders dated 30.01.2006 whereby he granted
      pardon to those five approvers.
           4. Since the case is triable by the Special Judge under the provisions
    of PC Act, who is of the rank of Sessions Judge, the Metropolitan
    Magistrate committed the case to the Special Judge. After the committal,
B the Special Judge framed charges against the respondent herein (who is
    arrayed as A-1) as well as other accused persons i.e. A-2 to A-15.
    These accused persons pleaded not guilty. Much thereafter, the
    respondent and two accused persons (A-I to A-3) challenged the order
    of grant of tender of pardon. This challenge was repelled by the trial
    courtvide orders dated 30.08.2012 resulting in dismissing the application
c of the said accused persons. It was held that Section 306 of the Code
    does not specifically state that only the Court which inquires into or tries
    the case should grant tender of pardon and that the perusal of records
  . shows. that the evidence has been recorded exhaustively in the
    questionnaire form in accordance with Section 146 of the Indian Evidence
D Act. The Sessions Judge also held that the judgment of this Court in
    Bangaru Laxman v. Stme (through CBI) and Another', that was
    cited by the respondent herein was distinguishable on facts and hence
  · not applicable to the present case and that the challenge had been filed
    after a lapse of six years with the object of protracting the proceedings.

 E           5. Feeling aggrieved by the said order, the respondent herein filed
      Criminal Miscellaneous Revision under Section 397 read with Section
      40 I of the Code, in the High Court. The primary contention raised by
      the respondent was that the Metropolitan Magistrate had no authority,
      poweror jurisdiction to entertain application for grant of pardon and it is
      only the Special Judge who could entertain such an application. The
 F    High Court vide its impugned judgment has accepted this plea of the
      respondent thereby allowing the criminal revision preferred by the
      respondent. In the opinion of the High Court, it is the Special Judge who
      will have the powers ofa Magistrate, though the authority mentioned in
      Section 306(1) of the Code includes Magistrate. On that basis, it is held
 G    that it is only the Special Judge who is empowered to grant tender of
      pardon and such an order passed by Metropolitan Magistrate is not lawful.
      As a consequence, all further proceedings held subsequent to the tender
      of pardon by Metropolitan Magistrate were struck off with direction to
      the appellant herein to initiate fresh action to get tender of pardon in
      accordance with law.
 H    '(2012) I SCC500
    STATE THROUGH CBI, CHENNAI v. V. ARUL KUMAR                              491
                   [A. K. SIKRI, 1.1

      (). The question, therefore, that falls for consideration is as to      A
whether the Magistrate has power to grant tender of pardon under Section
306 of the Code or such powers are to be necessarily exercised only by
the Special Judge having regard to the provisions of the PC Act.
       7 .. Mr. Neeraj Kishan Kaul, learned ASG appearing for the State/
appellant, submitted that Section 306(1) of the Code confers such a           B
power upon the Metropolitan Magistrate in no uncertain terms and this
issue stands authoritatively concluded by this Court in the case of P.C.
Mishra v. State (CBI) and Another'. His second contention, in the
alternative and without prejudice to the aforesaid contention, was that
the High Court failed to take into consideration the provisions of Section
460(g) of the Code which stipulate that such an irregularity, if at all,
                                                                              c
would not vitiate the proceedings. He, thus, argued that in any case
tender of pardon bythe Metropolitan Magistrate was an irregularity and
the High Court could not have struck off the proceedings conducted
post tender of pardon. He also referred and relied upon the judgment of
this Court in the case of State of H.P. v. Surinder Mohan and Others',        D
for the proposition that at the time of recording of approvers evidence
by Magistrate at pre-committal stage i.e. at the time of investigation or
inquiry for offence triable by Sessions Court, accused persons have no
right to cross examine the approver.
        8. The aforesaid arguments were countered by Mr. Basant, learned       E
senior counsel, appearing for the respondent. He submitted that power
to grant pardon is an important judicial power which the Court is to grant
 in exercise ofjudjcial function and while exercising such a power, Court
is not discharging administrative function which would be the case, for
example, when the Magistrate records statement of a person under
Section 164 of the Code. His submission was that on this touchstone, it        F
was imperative that such a power is exercised only by the Judge
specificaily authorised in this behalfand ifthe matter is dealt with by a
Judge who is lower in rank, the order passed by him would be without
jurisdiction. Taking this argument on the next level, he further submitted
that Section 306 of the Code had to be read along with Sections 307 and       G
308 thereof in order to understand the scheme of grant of pardon to an
accomplice. His contention was that Section 3 07 grants such power,
after commitment of a case, to that Court to which the commitment is
made. Proceeding with this line of submission, he paraphrased his
2
  (2014114 sec 629
' (2000) 2sec 396                                                             H
492             SUPREME COURT REPORTS                          [2016] 2 S.C.R.


A     argument with the plea that the very scheme of PC Act is that the case
      could be tried only by a Special Judge who would not be below the rank
      of Special Judge as provided under Section 4 of the PC Act, which is as
      under:
            "4. Cases triable by special Judges.-
 B          ( I) Notwithstanding anything contained in the Code of Criminal
            Procedure, 1973, or in any other law for the time being in force,
            the offences specified in sub-section (I) of section 3 shal I be tried
            by special Judges only.
            (2) Every offence specified in sub-section (1) of section 3 shall
 c          be tried by the special Judge for the area within which it was
            committed, or, as the case may be, by the special Judge appointed
            for the case, or where there are more special Judges than one for
            such area, by such one of them as may be specified in this behalf
            by the Centra I Government.
 D          (3) When trying any case, a special Judge may also tiy any offence,
            other than an offence specified in section 3, with which the accused
            may, under the Code of Criminal Procedure. 1973, be charged at
            the same trial.
            (4) Notwithstanding anything contained in the Code of Criminal
 E          Procedure, 1973, a special Judge shall. as far as practicable, hold
            the trial of an offence on day-to-day basis."
             9. He then referred to Section 5 to point out that there was a
      specific power given to the Special Judge to take cognizance even without
      committing the case to the Special Judge by the Magistrate. Section 5
 F    reads as under:
            "5. Procedure and powers of special Judge.-
             ( I) A special Judge may take cognizance ofoffences without the
             acctised being committed to him for trial and, in trying the accused
             persons, shall follow the procedure prescribed by the Code of
 G           Criminal Procedure, 1973. for the trial of warrant cases by
             Magistrates.
             (2) A special Judge may, with a view to obtaining the evidence of
             any person supposed to have been directly or indirectly concerned
             in or privy to, an offence, tender a pardon to such person on
 H           condition of his making a full and true disclosure of the whole
   STATE THROUGH CBI, CHENNAI v. V. ARUL KUMAR                                 493
                  (A. K. SIKRJ, J.]

      circumstances within his knowledge. relating to the offence and           A
      to every other person concerned, whether as principal or abettor,
      in the commission thereof and any pardon so tendered shall, for
      the purposes of sub-sections (I) to (5) of section 308 of the Code
      of Criminal Procedure, 1973, be deemed to have been tendered
      under section 307 of that Code.
                                                                                B
      (3) Save as provided in sub-sections (1) or sub-section (2), the
      provisions of the Code of Criminal Procedure, 1973. shall, so far
      as ti1ey are not inconsistent with this Act, apply to t11e proceedings
      before a special Judge; and for the purposes of the said provisions,
      the Coutt of the special Judge shall be deemed to be a Court of
      Session and the person conducting a prosecutipn before a special
                                                                                c
      Judge shall be deemed to be a public prosecutor.
      (4) Jn particular and without prejudice to the generality of the
      provisions contained in sub-section (3), the provisions of sections
      326 and 475 of the Code of Criminal Procedure, 1973, shall, so
      for as may be, apply to the proceedings before a special Judge            D
      and for the purpo.ses of the said provisions, a special Judge shall
      be deemed to be a Magistrate.
       (5) A special Judge may pass upon any person convicted by him
     · any sentence authorized by law for the punishment of the offence
       of which such person is convicted.                                       E

      (6) A special Judge, while trying an offence punishable under ti*
      Act, shall exercise all the powers and functions exercisable by a
      District Judge under the Criminal Law Amendment Ordinance.
      1944."
                                                                                F
       I 0. The submission, to be precise, was that PC Act, on this aspect
was a complete Code in itself which gave powers to only the Special
Judge to try the cases, without the involvement of a Magistrate even in
committing the case to the Special Judge and because of'this reason,
provision of Section 306 of the Code stand excluded and would have no
application to the cases triable under PC Act. To buttress this submission,     G
Mr. Basant referred to Sections 4 and 5 of the Code which deal with
"Trial of offences under the Indian Penal Code and other laws" as well
as "saving':respectively and provide as follows:
      "4. Trial of offences under the Indian Penal Code and other laws.-
      (1) All offences under the Indian Penal Code( 45 of 1860) shall           H
494             SUPREME COURT REPORTS                          [2016] 2 S.C.R.


A           be investigated. inquired into, tried, and otherwise dealt with
            according to the provisions hereinafter contained.
            (2) All offences under any other law shall be investigated; inquired
            into, tried, and otherwise dealt with according to the same
            provisions, but subject to any enactment for the time being in force
B           regulating the manner or place ofinvestigating, inquiring into, trying
            or otherwise dealing with such offences.
            5. Saving.-
            Nothiri'g contained in this Code shall, in the absence of a specific
            provision to the contrary, affect any special or local law for the
 c          time being in force, or any special jurisdiction or power conferred,
            or any special form of procedure prescribed, by any other law for
            the time being in force."'
           11. Specifically relying upon the provisions of Section 4(2) of the
   Code, the learned senior counsel made a passionate plea that if the
 D offences are to be tried under a law, other than Indian Penal Code, the
   Code was subject to that law/enactment, in force at that time. He argued
   that since PC Act is in force with special scheme giving the powers only
   to the Special Judge to take cognizance without any committal of
   proceedings, it should be treated that the case from very beginning is the
 E post committal case i.e. with the Sessions Judge and, therefore, Magistrate
   stands denuded of his powers which are given in respect of offences
   under the !PC to him under Section 306 of the Code. He pointed out
   that though there was no judgment of this Court on this aspect but
   Rajasthan High Court had taken the same view as projected by him, in
      Rajendra Singh v. State of Rajastlwn'.
 F
             12. Insofar as argument of the appellant predicated on Section
      460 of the Code is concerned, it was sought to repel by Mr. Basant with
      the submission that in the aforesaid scenario projected by him, it was not
      a case of irregularity but inherent lack of jurisdiction on the part ofthe
      Magistrate to pass the order of tender of pardon and, therefore, Section.
 G    460 of the Code had no application. He relied upon the judgment in the
      case of A. Devendran v. State of Tamil Nadu;.
            13. We have given our utmost consideration to the respective
      submissions advanced by counsel for the parties on both sides. We may
      ' RLW 2003 (3) R~j. 1865
 H    ' (1997) 11 sec no
    STATE THROUGH CBI, CHENNAI v. V. ARUL KUMAR                                   495
                   fA. K. SIKRI, J.l .

state at the outset that in the instant case, the chargesheet was filed by         A
the prosecution on 30.01.2006 before the Metropolitan Magistrate. At
that time, prayer for grant of tender of pardon was also made before the
Magistrate taking the plea that five individuals were taken as approvers
after recording their confessional statements. Order was passed by the
learned Magistrate granting pardon and thereafter the case was
                                                                                   B
committed to the Additional Special Judge for CBI cases, Chennai as it
is triable by the Special Judge. Special Judge thereafter framed charges
against the accused persons on 10.07.2012. Keeping in mind the aforesaid
facts, let us take note of Section 306 of the Code to find out as to whether
the Magistrate had the requisite power to grant tender of pardon under
the said provision. It reads as under:                                             c
        "306. Tender of pardon to accomplice.- (I) With a view to obtaining
        the evidence of any person supposed to have been directly or
      · indirectly concerned in or privy to an offence to which this section
        applies, the Chief Judicial Magistrate or a Metropolitan Magistrate
        at any stage of the investigation or inquiry into, or the trial of, the    D
        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.                E
       (2) This section applies to-
          (a) any offence triable exclusively by the Court of Session or
          by the Court of a.Special Judge appointed under the Criminal
          Law Amendment Act, 1952 (46of1952).
                                                                                   F
          (b) any offence punishable with imprisonment which may
          extend to seven years or with a more severe sentence.
      · (3) Every Magistrate who tenders a pardon under Sub-Section
        ( 1) shall record-
          ( a) his reasons for so doing;
                                                                                   G
       (b) whether the tender was or was not accepted by the person to
       whom it was made,                                    ·
       and shall, on application made by the accused, furnish him with a
       copy of such record free of cost.
       (4) Every persQn accepting a tender of pardon made under Sub-
       section (I}--                                                               H
496             SUPREME COURT REPORTS                         [2016] 2 S.C.R.



A              (a) shall be examined as a witness in the Court of the Magistrate
               taking cognizance of the offence and in the subsequent trial, if
               any;
               (b) shall, unless he is already on bail, be detained in custody
               until the termination of the trial.
B           (5) Where a person has accepted a tender of pardon made under
            Sub-Section ( 1) and has been examined under Sub-Section (4),
            the Magistrate taking cognizance of the offence shall, without
            making any further inquiry in the case,-
                (a) commit it for trial--
 c              (i) to the Court of Session ifthe offence is triable exclusively
                by that Court or if the Magistrate taking cognizance is the
                Chief Judicial Magistrate;
                (ii) to a Court of Special Judge appointed under the Criminal
                Law Amendment Act 1952 (46of1952), if the offence is triable
                exclusively by that Court;
 D
                (b) in any other case, make over the case to the Chief Judicial
                Magistrate who shall try the case himself."
             14. Sub-section ( 1) of Section 306 of the Code very categorically
      and unambiguously mentions Metropolitai1 Magistrate as one of the
      Judicial Officers who can exercise the power of tender of pardon to
 E
      accomplice. Thus, Metropolitan Magistrate is specifically given such a
      power under Section 306 of the Code. Sub-section (2) of Section 306
      makes it clear that this Section applies even to those offences which are
      triable exclusively by the Court of Session or by the Court of a Special
      Judge appointed under the Criminal Law Amendment Act, 1952. Thus,
 F    even where the cases are triable by a Special Judge, the Metropolitan
      Magistrate is authorised to grant tender of pardon. Sub-section (3) and
      sub-section (4) outline the procedure that is to be followed in discharging
      this function. Sub-section (5), which is material forour purpose, stipulates
      that after the person has accepted a tender of pardon made under sub-
 G    section ( 1) and has bee1texamined under sub-section (4), the Magistrate
      taking cognizance i'lfthe offence will not make any further inquiry in the
      case and commit it for trial to a Court ofSpecial Judge, ifthe offence is
      triable exclusively by that Court. This sub-section makes the position
      beyond any pale of doubt, that even when an offence is triable by a
      Session Judge, the Magistrate has the requisite power to take cognizance
 H    and grant tender of pardon and, thereafter, commit the case to the Special
    STATE THROUGH CBI, CHENNAl v. V. ARUL KUMAR                                497
                 • [A. K. SlKRl, J.]

Judge for trial. Section 307 of the Code restricts the power to grant           A
tender of pardon by conferring it in the hands of the Court to which the
commitment is made, only after the commitment of a case. This provision,
also lends support to the position taken by the appellant, as it makes it
clear that after the committal of the case, it i"s only that Court to which
the commitment is made has the power to tender a pardon, thereby
                                                                                B
implying that before the commitment of case, Magistrate is duly
empowered. Section 308 of the Code is of no consequence to decide
the controversy before us as it deals with the trial of person not complying
with conditions of pardon.
       15. On aplain reading of Section 306 in conjunction with Section
307 of the Code, it becomes manifest that Magistrate is duly empowered
                                                                           c
to grant tender of pardon even in respect of the cases which are triable
by the Session Court or by the Special Judge. This legal position is
eloquently accepted in P.C. Mislrra's case. That was also a case under
P.C. Act in which P.C. Mishra (appellant in the said appeal) and his
Reader Ravi Bhatt were made accused persons. During investigation, D
CBI noticed that accused Ravi Bhatt was not a leading accused in the
case and it was considered necessary to take him as an approver to
prove the various missing links in the chain of circumstantial evidence,
which were otherwise not available to the investigating agency. In this
backdrop, the CBI filed an application under Section 306 of the Code
before the Special Judge, CBI, Delhi for grant of pardon to Ravi Bhatt.    E
The Special Judge marked that application to the Chief Metropolitan··
Magistrate, who, in tum, referred the same to the Metropolitan Magistrate.
The Metropolitan Magistrate examined the application of the CBI and
passed the order, in exercise of powers conferred under Section 306 of
the Code, holding that it was a fit case where pardon should be granted    F
to Ravi Bhatt to enable the prosecution to unveil all circumstances of the
case and to unearth the truth. Other accused, namely, P.C. Mishra
challenged the said order exactly on the grounds whieh are taken before
us, i.e., the Magistrate had no power to grant the pardon as the case
was triable by the Special Judge. This Court repelled the contention by
reading such a power in the hands of Metropolitan Magistrate as well, G
before the committal of the case and found that power was rightly
exercised as order of committal has not been passed when the order of
grant of pardon was passed by the Magistrate. Following discussion
from the said judgment is worth quoting:
                                                                                H
498       SUPREME COURT REPORTS                          [2016) 2 S.C.R.


A     11. Power to grant pardon enjoined under Section 306 Cr.P.C. is
      a substantial power and the reasons for tendering pardon must be
      recorded. It is for the prosecution to ask that a particular accused,
      out of several, may be granted pardon, ifit thinks that it is necessary
      in the interest of successful prosecution of other offenders or else
      the conviction of those offenders would not be easy. This Court in
B
      State of U.P. v. Kai/ash Nath Agarwal [State of U.P. v. Kai/ash
      Nath Agarwal, (1973) I SCC 751 : 1973 SCC (Cri) 698]
      recognised the power of the District Magistrate to grant pardon
      at the investigation stage. This Court in Kanta Prashad v. Delhi
      Admn. [Kaniii Prashad v. Delhi Admn., AIR 1958 SC 350 :
c      1958 Cri LJ 698) had the occasion to examine the scope of Sections
      337 and 338 of the old Code (CrPC 1898) vis-a-vis the powers of
      a Special Court constituted under the Criminal Law (Amendment)
      Act, 1952. This Court held that, reading the proviso to Section
      337 and provisions of Section 338 together, the District Magistrate
      is empowered"to tender a pardon even after a commitment, ifthe
D
      Court so directs. It was also held that under Section 8(2) of the
      Criminal Law (Amendment) Act, 1952, the Special Judge has
      also been granted power to tender pardon. The conferment of
      this power on the Special Judge in no way deprives the District
      Magistrate of his power to grant a pardon under Section 33 7 of
 E    the Code. It was held if at the time when the District Magistrate
      tenders the pardon, the .case was not before the Special Judge,
      then there is no illegality committed by the District Magistrate.
      12. The scope of abovementioned provisions again came up for
      consideration before this Court in Kai/ash Nath Aganl'O/ [State
 F    ofU.P. v. KailashNathAganl'a/, (1973) I SCC 751: 1973 SCC
      (Cri) 698), wherein this Court after referring to its earlier judgment
      in Kanta Prashad [Kanta Prashad v. Delhi Admn., AIR 1958
      SC 350: 1958 Cri LJ 698) held as follows: (Kai/ash Nath Aganl'O/
      case [State ofU.P. v. KailashNathAgan1'0/, (1973) I SCC 751
      : 1973 sec (Cri) 698), sec p. 757, para 13)
 G
      "It will be noted from this decision that emphasis is laid on the
      fact that the proviso to Section 337 contemplates concurrent
      jurisdiction in the District Magistrate and in the Magistrate making
      an inquiry or holding the trial to tender pardon. It is also emphasized
      that the conferment of the power to grant pardon on the Special
H
STATE THROUGH CBI, CHENNAI v. V. ARUL KUMAR                               499
               [A. K. SIKRI, J.]

 Judge does not deprive the District Magistrate of his power to            A
 grant pardon under Section 337."
 13, In Bangaru Laxman [Bangaru Laxman v. State, (2012) 1
.sec 500: c2012) 1 sec (Cri) 487: c2012) 2 sec (L&S) 422]
 this Court has stated that the power of Special Judge to grant
 pardon is an unfettered power and held that, while trying the             B
 offences, the Special Judge has dual power of a Special Judge as
 well as that ofa Magistrate. 'fhis Court, while interpreting Section
 5, then went on to say as follows: (SCC pp. 509-10, paras 40-42)
 "./0. Thus, on a hannonious reading of Section 5(2) of the PC Act
 with the provisions of Section 306, specially Section 306(2){a) of        c
 the Code and Section 26 of the PC Act, this Court is of the opinion
 that the Special Judge under the PC Act, while trying offences,
 has the dual power of the Sessions Judge as well as that of a
 Magistrate. Such a Special Judge conducts the proceedings under
 the court both prior to the filing of charge-sheet as well as after
 the filing of charge-sheet, for holding the trial.                        D

 41 . ... Since this Court has already held that the Special Court is
 clothed with the magisterial power of remand, thus in the absence
 of a contrary provision, this Court cannot hold that power to grant
 pardon at the stage of investigation can be denied to the Special
 Court.                                                                    E

 42. In view of the discussion made above, this Court is of the
 opinion that the power of granting pardon, prior to the filing of the'
 charge-sheet, is withiti the domain cif judicial discretion of the
 Special Judge before whom such a prayer is made, as in the instant
 case by the prosecution."                                              F

  14. Bangaru Laxman (supra), .therefore, emphasizes the
 concurrent jurisdiction of the Special Judge !ls well as the Chief
 Judicial Magistrate or Metropolitan Magistrate to grant pardon
 during investigation, but does not say that the Metropolitan
 Magistrate has no power under Section 306 Cr.P.C. to grant pardon         G
 during the investigation i.e. before filing of charge-sheet before
 the Special Judge. During·investigation, in our view, both the Special
 Judge as well as the l\.1agistrate acting under Section 306 Cr.P.C.
 have concurrent jurisdiction to entertain application of pardon which
 facilitates proper investigation of the crime. But, as already
                                                                           H
500              SUPREME COURT REPORTS                        [2016] 2 S.C.R.


A           indicated, after the committal of the case, the pardon granted by
            the Magistrate is not a curable irregularity."
              16. In the light of the aforesaid legal position, we deal with the
      arguments of Mr. Basant, learned senior counsel for the respondent as
      to whether Section 306 of the Code has no application in the cases
B     relating to offences under PC Act. No doubt, Section 4 of the PC Act
      states that the offences specified in sub-section (I) of Section 3 shall be
      tried by Special Judges only, notwithstanding anything contained in the
      Code, or in any other law forthe time being in force. Further, Section 5
      gives power to the Special Judge to take cognizance of offences even
      without the accused being committed to him for trial and sub-section (2)
c     of Section 5 empowers the Special Judge to grant pardon as well. It
      was on the basis of these provisions Mr. Basant has advanced the
      argument that PC Act was a complete Code and power was specifically
      given to the Special Judge and, therefore, Section 306 of the Code had
      no application and Magistrate had no power to grant pardon in respect
D     of offences triable under the PC Act. He submitted that these provisions
      were not taken note of by the Division Bench of this Court in P.C.
      Mishra's case and, therefore, matter required consideration by a Larger
      Bench. We are, however, not impressed by the aforesaid submissions.
           17. Sub-section (I) of Section 5, while empowering a Special Judge
 E to  take cognizance of offence without the accused being committed to
   him for trial, only has the effect of waiving the otherwise mandatory
   requirement of Section 193 of tl;ie Code. Section 193 of the Code
   stipulates that the Court of Session cannot take cognizance cf any offence
   as a Court of original jurisdiction unless the case has been committed to
   it by a Magistrate under the Code. Thus, embargo of Section 193 of the
 F Code has been lifted. It, however, nowhere provides that the cognizance
   cannot be taken by the Magistrate at all. There is, thus, an opiion given
   to the Special Judge to straightway take cognizance of the offences and
    not to have the committal route through a Magistrate. However, normal
   procedure prescribed under Section 190 of the Code empowering the
 G Magistrate to take cognizance of such offences, though triable by the
   Court of Session, is not given a go-bye. Both the alternatives are available.
    In those cases where chargesheet is filed before the Magistrate, he will
   have to commit it to the Special Judge. In this situation, the provisions of
   Section 306 of the Code would be applicable and the Magistrate would
   be empowered to exercise the power under the said provision. In contrast,
 H
     STATE THROUGH CBI, CHENNAI v. V. ARUL KUMAR                                  501
                    [A. K. SIKRI, J.l

  in those cases where Special Judge takes cognizance of offence directly, A
  as he is authorised to do so in view of Section 5(2) of PC Act, Section
· 306 of the Code would get bypassed and as the Special Judge has taken
  cognizance, it is Section 307 of the Code which would become applicable.
  Sub"section (2) of Section 5 of PC Act makes this position clear by
  prescribing that it is the Special Judge who would exercise his powers to
                                                                            B
  tender of pardon as can clearly be spelled out by the language employed
  in that provision. Section 5(2) is to be read in conjunction with Section
  5(1) of the PC Act. The aforesaid legal position would also answer the
  argument of the learned counsel for the respondent based on the judgment
  of this Court in A. Devendran (supra). In that case, this Court held that
  once the proceedings are committed to the Court of Session, it is that . C
  Court only to which commitment is made can grant pardon to the approver.
  The view taken by us is, rather, in tune with the said judgment.
        18. We, therefore, do not find merit in the aforesaid contention of
 the leame.d counsel for the respondent. For these reasons, we also do
 not agree with the view taken by the Rajasthan High Court in Rajendra             D
 Singh (supra).and over-rule that judgment.
        19. The appellant would succeed even on the basis of Section 460
 of the Code. Clause (g) of this Section which is relevant for us reads as
 under:
        "460. Irregularities which do not vitiate proceedings.- If any             E
        Magistrate not empowered by law to do any ofthe following things,
        namely:-
        xx         xx                               xx
        (g) to tender a pardon under section 306;
                                                                                   F
        xx         xx                               xx
        erroneously in good faith does that thing, his proceedings shall not
        be set aside merely on the ground of his not being so empowered."
        20. This Section treats some of the acts of.the Magistrate, specified
 in clauses (a) to (i) as 'irregularities'. These are treated as irregularities    G
 even when the Magistrate is not 'empowered by law to do' those acts.
 Tendering a pardon under Section 306 of the Code is included in those
 acts of "irregularities". Therefore, even if we presume that the
 Magistrate was not empowered (though we have held otherwise), the
 order passed by the Magistrate is saved by Section 460(g) of the Code.            H
502            SUPREME COURT REPORTS                         (2016] 2 S.C.R.


A This aspect also stands clinched in P.C Misflra's case where the legal
  position was stated in the following manner:
          · 15. We may, in this regard, refer to Section 460 Cr.P.C. which
           refers to nine kinds of curable irregularities, provided they are
           caused erroneously and in good faith. Irregularity caused while
 B          granting pardon is dealt with in Section 460(g) Cr.P.C. The relevant
            part of that section reads as follows:
           "460. Irregularities which do not vitiate proceedings.-If any
           Magistrate not empowered by law to do any of the following things,
           namely-
 c                                         ***
           (g) to tender a pardon under Section 306;
           erroneously in good faith does that thing, his proceedings shalt not
           be set aside merely on the ground ofhis not being so empowered."
 D         Section 461 Cr.P.C. speaks of irregularities which vitiate
           proceedings.
           16. We have already held, both the Magistrate as well as the
           Special Judge has concurrent jurisdiction in granting pardon under
           Section 306 Cr.P.C. while the investigation is going on. But, in a
 E         case, where the Magistrate has exercised his jurisdiction under
           Section 306 Cr.P.C. even after the appointment of a Special Judge
           under the PC Act and has passed an order granting pardon, the
           same is only a curable irregularity, which will not vitiate the
           proceedings, provided the order is passed in good faith. In fact, in
           the instant case, the Special Judge himself has referred the
 F
           application to the Chief Metropolitan Magistrate/Metropolitan
           Magistrate to deal with the same since the case was under
           investigation. In such circumstances, we find no error in the Special
           Judge directing the Chief Metropolitan Magistrate or the
           Metropolitan Magistrate to pass appropriate orders on the
 G         application of CBI in granting pardon to the second respondent so
           as to facilitate the investigation."
         2 I. In view ofour aforesaid discussion, impugned judgment of the
   High Court does not stand legal scrutiny. In fact, we find that the High
   Court had formulated wrong question for consideration as is clear from
 H paragraph 5 of the judgment and, therefore, went astray in deciding
/
    STATE THROUGH CBI, CHENNAJ v. V. ARUL KUMAR                             503
                   [A. K. SIKRI, J.]

such a question. Paragraph 5 of the High Court judgment mentions the         A
question that was framed:
       "5. Point for Consideration: Whether the Special Judge is
       competent to Tender of Pardon under Section 306 Cr.P.C. And
                    of
       Section 5(2) P.C. Act."
                                                .,-'··.

       22. The question was not as to whether Special Judge is competent     B
to tender of pardon. The question was as to whether Magistrate rightly
passed the order of tender of pardon. The High Court took circuitous
route by answering that Special Judge was competent and from that
concluded that Magistrate was not competent.
      23. In view of our discussion above, the judgment of the High          c
Court warrants to be set aside. We, thus, set aside the judgment of the
High Court a.nd allow the present appeal.
       No costs.
Nidhi Jain                                                Appeal allowed.