Case Law Details
Directorate of Enforcement Vs Rajiv Saxena (Delhi High Court)
Conclusion: Once the accused was granted pardon by the Court and was made approver, the status of the accused changed from accused to witness/approver. However, if the approver, failed to comply with the conditions of order granting him pardon, he made him liable to be tried as accused subject to the conditions as laid down in Section 308 Cr PC. The issuance of certificate, by the Public Prosecutor, under Section 308 (1), Cr PC, had to be necessarily preceded by the recording of the statement of the approver, under Section 306(4) and before the recording of assessee’s statement under Section 306 (4) of the Cr PC, the application, of ED, as preferred before him, was not maintainable.
Held: Central Bureau of Investigation (CBI) registered RC No. 217-2013A-0003, against Rajiv Saxena alleging commission of offences, by him, punishable under Section 420, read with Section 120B of the Indian Penal Code, 1860 (IPC) and Sections 7, 8, 9, 12 and 13(1)(d), read with Section 13(2) of the Prevention of Corruption Act, 1988. ECIR was also registered against, inter alia, assessee by the Directorate of Enforcement (ED). An application was filed, by assessee, under Section 306, Cr PC, for grant of pardon. The said application was allowed, by the Special Judge, CBI. DE moved an application, before Special Judge, praying that the tender of pardon, granted to assessee by Special Judge, be revoked as Rajiv Saxena had breached the terms of the tender of pardon granted and Rajiv Saxena had failed to disclose the full and true set of facts/circumstances in his knowledge and had wilfully concealed the true facts of the case. He had further given false evidence to hide his culpability in the case and also made selective disclosures to shield other Accused. Assessee contended that as the application had been preferred under Section 306, Cr PC, and not under Section 308 thereof, it was not maintainable. Single Judge held that from the perusal of Section 306 & 308 Cr PC it was clear that once the accused was granted pardon by the Court and was made approver, the status of the accused changed from accused to witness/approver. However, if the approver, failed to comply with the conditions of order granting him pardon, he made him liable to be tried as accused subject to the conditions as laid down in Section 308 Cr PC. Thus it was clear that breach of the conditions of the order granting pardon had to be looked into after the approver was examined by the Session Court/Trial Court and PP files Certificate that approver had committed breach of the conditions on basis of which he was granted pardon. Section 308 Cr PC also lays down that opportunity had to be granted to the accused to defend himself that he had complied with the conditions on which he was granted pardon. Therefore, the application filed by ED was premature and was liable to be dismissed. The Enforcement Directorate might move appropriate application for revocation of pardon granted to Rajiv Saxena, if so needed, at appropriate. ED moved an application before High Court. It was held that before the recording of assessee’s statement under Section 306 (4) of the Cr PC, the application, of ED, as preferred before him, was not maintainable. Special Judge concluded that the issuance of certificate, by the Public Prosecutor, under Section 308 (1), Cr PC, had to be necessarily preceded by the recording of the statement of the approver, under Section 306(4). Therefore, the petition failed and was dismissed.
FULL TEXT OF THE HIGH COURT ORDER /JUDGEMENT
1. An interesting issue, involving the interplay between Section 306, and Section 308, of the Code of Criminal Procedure, 1973 (hereinafter referred to as “the Cr PC”, or “the 1973 Cr PC”), arises for consideration in the present case.
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