BANGARU LAXMANversusSTATE (THROUGH CBI) & ANOTHER

                   [2011] 13 (ADDL.) S.C.R. 268


A                       BANGARU LAXMAN
                                v.
               STATE (THROUGH CBI) & ANOTHER
              (Criminal Appeal No. 2164-65 of 2011)
                       NOVEMBER, 22, 2011
B
                 [ASOK KUMAR GANGULY AND
                   GYAN SUDHA MISRA, JJ.]

        PREVENTION OF CORRUPTION ACT, 1988:
c       s. 5(2) - Power of Special Judge to grant pardon at
  investigation stage - Held: On a harmonious reading of s. 5
  (2) of the P. C. Act with the provisions of s. 306, specially s.
  306 (2) (a) of the Code and s. 26 of the P. C. Act, the Special
  Judge under the P. C. Act, while trying offences, has the dual
0 power of the Sessions Judge as well as that of a Magistrate,
  and conducts the proceedings under the Code both prior to
  as well as after the filing of charge she2t, for holding the trial
  ""' Therefore, the power of granting pardon, prior to the filing
  of the charge sheet, is within the domain of judicial discretion
E of the Special Judge before whom such a prayer is made, as
  in the instant case, by the prosecution - Code of Criminal
  Procedure, 1973 - s. 306 (2) (a) - Interpretation of Statutes.

        CRIMINAL LAW:
F
         Grant of pardon to one of the several accused involved
    in an offence - Purpose of - Explained.

        INTERPRETATION OF STATUTES;

G         Deeming provision - .HELD: Is a legal fiction and an·
    admission Of the non-existence Of the fact deemed -
    Therefore, while interpreting a provision creating a legal
    fiction, the court has to ascertain the purpose for which the
    fiction is created- Prevention of Corruption Act, 1988- s.5(2).
H                                268
  BANGARU LAXMAN v. STATE (THROUGH CBI) &             269
                   ANR.
      On 21.04.2005, the confessional statement of          A
 respondent no. 2 was recorded u/s 164 Cr. P. C., wherein
 he admitted his and appellant's involvement in the
 incident. The prosecution formed an opinion that the
 evidence of respondent no. 2 would be of great value
·and, therefore, it moved an application before the Court   B
 of the Special Judge for grant of pardon to respondent
 No. 2, so that he could be examined as an approver in
 the case against the appellant. By an order dated
 17.7.2006, pardon was granted by the Special Court. On
 18.7.2006 charge sheet in the case was filed against the   c
 appellant and another. The order granting pardon to
 respondent no. 2 was challenged before the High Court,
 which declined to interfere.

    In the instant appeals it was contended for ~he
appellant, inter-alia, that the Special Court had no        D
jurisdiction and authority to grant pardon at the
investigation stage before the filing of the charge sheet
and, as such, the pardon was not granted after following
the proper procedure.
                                                            E
    Dismissing the appeals, the Court

      HELD: 1.1 Under s. 5(2) of the Prevention of
Corruption Act, 1988, the power of the Special Judge to
grant pardon is an unfettered power subject to stipulation
made in the section itself. Such power can be exercised
                                                             F
at any stage and there is no stipulation that power can
be exercised by the Special Judge only at the stage of
trial. The deeming clause which has been introduced in
s.5(2) is for a very limited purpose mentioned therein. It
is not for fettering the power of the Special Judge to grant G
pardon in terms of s. 306 of the Code of Criminal
Procedure, 1973. The purpose.of introducing the deeming
provision in s. 5(2) is manifest from its text, namely, the
same is introduced only for the purposes of sub-ss. (1)
to (5) of s. 308 of the Code and it is only for the said H
    270     SUPREME COURT REPORTS (2011) 13 (ADDL.) S.C.R.


A purpose that the sanction is deemed to have been
  tendered u/s. 307 of the Code. Sub-ss. (1) to (5) of s. 308
  of the Code make it clear that the said provisions have
  been enacted for a different purpose, namely, for holding
  trial of a person for not complying with the conditions of
B pardon. [Para 21 and 25] [280-G-H; 281-A-B; 282-D-E]

        State of U.P. vs. Singhara Singh AIR 1964 SC 358;
    Taylor vs. Taylor (1876) 1 Ch. D.426; Queen Empress vs.
    Batera & Ors. Crl. Judgment No. 3 (Case No. 2838 of 1897)

c - referred to.
        1.2 It is well known that a deeming provision is a legal
  fiction and an admission of the non-existence of the fact
  deemed. Therefore, while interpreting a provision
  creating a legal fiction, the court has to ascertain the
D purpose for which the fiction is created. [para 22] [281-
  C-D]

      Mis. J.K. Cotton Spinning and Weaving Mills Ltd. and
  another vs. Union of India and others - 1988 SCR 700 =AIR
E 1988 SC 191; Travancore Cochin and others vs
  Shanmugha Vilas Cashew nut Factory, Qui/on, AIR 1953 SC
    333 - relied on.

          Re Levy (1881) 17 Ch. D 746 - referred to.

F       1.3 On a conjoint reading of s. 306(2)(a) of the Code
    with s. 26 of the P.C. Act, the conclusion is inescapable
    that s.306(2)(a) clearly makes s.306 applicable to the
    Court of Special Judge under the P.C. Act. [Para 30] [283-
    G]
G      Lt. Commander Pascal Fernandes vs. State of
    Maharashtra and Ors. - 1968 SCR 695 =AIR 1968 SC 594
    - held inapplicable.

       1.4 From the ratio of Harshad Mehta to the
H interpretation of s. 5(2) of the P.C. Act, it is clear that the
 BANGARU LAXMAN v. STATE (THROUGH CBI) &                  271
                  ANR.
power to grant pardon uls. 306 of the Code· has not been          A
specifically denied, and, as such, as a court of original
criminal jurisdiction, the Special Court under P.C. Act has
the power to grant pardon uls. 306 of the Code. Any
different interpretation will be contrary to the plain words
of s.306 of the Code and also the law laid down by this           s
Court in Harshad Mehta on the principles decided in
Antulay. [Para 39] [286-D-E]

     Harshad S. Mehta and others vs. State of Maharashtra
2001 (2) Suppl. SCR 577 = (2001) 8 sec 257; A. R.
Antulay vs. Ramdas Sriniwas Nayak and Anr. 1984 (2)               C
SCR 914 =(1984) 2 SCC 500; State of Tamil Nadu vs. V.
Krishnaswami Naidu and another 1979 (3) SCR 928 =(1979)
4 sec 5 - relied on.

     1.5 On the ratio of V. Krishnaswami, it is clear that the    D
Special Judge has been given a very wide power,
namely,the power of remand. Compared to that, the
power to grant pardon is an ancillary power. Therefore,
under the scheme of the Code, read with s.5(2) of the PC
Act, and in light of the consistent view of this Court, a         E
Special Judge will include a magistrate. On the same
parity of reasoning, a Special Judge, unless specifically
denied, will have the power to grant pardon at the stage
of investigation. Section 5(2) of the P.C. Act clearly
confers this power subject to the deeming clause, which           F
is for the limited purpose. [Para 41 and 43] [287-A-C-E]

     1.6 Thus, on a harmonious reading of s. 5(2) of the
P.C. Act with the provisions of s. 306, specially s. 306(2)(a)
of the Code and s. 26 of the P.C. Act, this Court is of the
opinion that the Special Judge under the P.C. Act, while          G
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 Code both
prior to the filing of charge sheet as well as after the filing
of charge sheet, for holding the trial. Therefore, the power      H
    272    SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R.


A of granting pardon, prior to the filing of the charge sheet,
  is within -the domain of judicial discretion of the Special
  Judge before whom such a prayer is made, as in the
  instant case, by the prosecution. Any other conclusion
  would b~ detrimental to the administration of justice, in
B as much as, the power to grant pardon is contemplated
  in situations Where serious offence is alleged to have
  been committed by several persons and with the aid of
  the evidence of the person, who had been granted
  pardon, the offence committed may be proved. The basis
c of exercise of this power is not to judge the extent of
  culpability of the persons to whom the pardon is
  tendered. The main purpose is to prevent failure of justice
  by allowing the offender to escape from a lack of
  evidence. [Para 42, 44 and 45] [287-D; G-H; 288-A-B]
D      1.7 However, this Court makes it clear that in the
  course of holding trial, the Special Judge will not be in
  any way influenced by the observations in the order
  granting pardon but will act independently of the same.
  In the instant case, the Special Judge who has granted
E pardon is not holding the trial. Therefore, at the time of
  holding trial, it is directed that the Special Judge will
  independently apply his mind to the facts of the case in
  arriving at his conclusions. [Para 46] [288-C-D]

F                        Case Law Reference:
          1968 SCR 695          relied on           para 15
          1984 (2) SCR 914      relied on           para 16
          AIR 1964 SC 358       relied on           para 19
G
          AIR 1964 SC 358       referred to         para 20
          (1876) 1 Ch. D.426    referred to         para 20


H
  BANGARU LAXMAN v. STATE (THROUGH CBI) &                  273
                   ANR.
    Crl. Judgment No. 3                                           A
    (Case No. 2838 of 1897)        referred to      para 20
    1988 SCR 700                   relied on        para 22
    (1881) 17 Ch. D 746            referred to      para 23       B
    AIR 1953 SC 333                relied on        para 24
    2001 (2) Suppl. SCR 577        relied on        para 33
     1979 (3) SCR 928              relied on        para 40
                                                                  c
    CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 2164-2165 of 2011.

     From the Judgment & Order dated 30.08.2010 of the High
Court of Delhi at New Delhi in Revision Petition (Crl.) No. 769   D
of 2006 & Crl. M.A. No. 12167 of 2006.
    Sunil Kumar, Atul Kumar, Manish Mohan, Parveen Kumar,
Ugra Shankar Prasad for the Appellant.
    P.K. Dey, Arvind Kumar Sharma, G. Seshagiri Rao,              E
Promila for the Respondents.
    The Judgment of the Court was delivered by

    GANGULY, J. 1. Leave granted.
                                                                  F
     2. The challenge in these appea!s is to an order dated
17.7.2006 by which the learned Special Judge granted pardon
to respondent No. 2-Shri T. Satyamurty on the condition that
the said respondent shall make full disclosure of the facts and
circumstances relating to the offence committed by him in G
conspiracy with the appellant and one Shri N. Umamaheshwar
Raju.

     3. The charge-sheet in this case was filed next day i.e.
18.7.2006 against the appellant and Shri N. Umamaheshwar
Raju. The said order granting pardon was challenged before        H
    274    SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R.


A the High Court but the said challenge was turned down by the
  High Court by its order dated 30.8.2010. The main argument
  by the appellant in this case is that pardon could not be granted
  by the Special Court prior to the filing of the charge-sheet.

8        4. Certain facts which are relevant to decide this
    controversy may be recorded.

       5. On 21.4.2005 the confessional statement of the
  respondent no.2 was recorded under Section 164 Cr.P.C. The
  said confessional statement of respondent No.2 recorded his
C involvemer.t and the involvement of the appellant in the incident.
  On considering the said statement, the prosecution formed an
  opinion that the evidence of PW-2 is of great value to the
  prosecution and thereafter on 3.7.2006 the prosecution moved
  an application before the Court of the Special Judge for grant
D of pardon to respondent No.2 so that respondent No.2 could
  be examined as an approver in the case against the appellant.

        6. Thereafter, by an order dated 17.7.2006, pardon was
    granted by the Special Court.
E        7. Mr. Sun ii Kumar, learned counsel for the appellant
    mainly assailed the order granting pardon, inter-alia, on the
    ground that the Special Court has no jurisdiction and authority
    to do so before the filing of the charge sheet.

F      8. Learned counsel has of course raised an ancillary
  grievance that at the stage of granting pardon the Court had
  already formed its opinion on the guilt or otherwise of the
  appellant rendering the trial a mere mockery. However, his main
  argument was focused on the jurisdiction of the Special Court
G to grant pardon prior to the filing of the charge sheet.
       9. In support of his submission, the learned counsel
  referred to the provisions of Sections 306 and 307 of the Code
  of Criminal Procedure (hereinafter referred to as the 'Code')
  and also referred to Section 5(2) of the Prevention of Corruption
H Act, 1988(hereinafter referred to as the 'P.C.' Act)
  BANGARU LAXMAN v. STATE (THROUGH CBI) &                      275
       ANR. [ASOK KUMAR GANGULY, J.]
     10. For proper appreciation of the questions involved in          A
this case, those provisions are set out below:

    "306. Tender of pardon to accomplice. (1) With a view
    to obtaining the evidence of any person supposed to have
    been directly or indirectly concerned in or privy to an                1




    offence to which this section applies, the Chief Judicial          8 1
    Magistrate or a Metropolitan Magistrate at any stage of the
    investigation or inquiry into, or the trial of, the offence, and
    the Magistrate of the first class inquiring into or trying the
    offence, at any stage of the inquiry or trial, may tender a
    pardon to such person on condition of his making a full and        C
     true dis-closure 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.
                                                                       D
      (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                    E
                   Amendment Act, 1952 (46 of 1952);

            (b)    any offence punishable with imprisonment
                   which may extend to seven years or with a
                   more severe sentence.
                                                                       F
      (3)   Every Magistrate who tenders a pardon under sub-
            section (1) shall record-
            (a)    his reasons for so doing;
            (b)    whether the tender was or was not accepted          G
                   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.
                                                                       H
    276 SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R.


A       (4)   Every person accepting a tender of pardon made
              under sub- section (1 )-

               (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
               (b)   shall, unless he is already on bail, be
                     detained in custody until the termination of the
                     trial.

c       (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,-
D       (a)   commit it for trial-
              (i)    to the Court of Session if the offence is
                     triable exclusively by that Court or if the
                     Magistrate taking cognizance is the Chief
E                    Judicial Magistrate;

              (ii)   to a Court of Special Judge appointed under
                     the Criminal Law Amendment Act, 1952 (46
                     of 1952), if the offence is triable exclusively
                     by that Court;
F
        (b)   in any other case, make over the case to the Chief
              Judicial Magistrate who shall try the case himself.
       307. Power to direct tender of pardon. At any time after
       commitment of a case but before judgment is passed, the
G
       Court to which the commitment is made may, with a view
       to obtaining at the trial the evidence of any person
       supposed to have been directly or indirectly concerned in,
       or privy to, any such offence, tender a pardon on the same
       condition to such person.
H
  BANGARU LAXMAN v. STATE (THROUGH CBI) &                  277
       ANR. [ASOK KUMAR GANGULY, J.]
    S.5(2) of P.C. Act:                                            A

    S.5(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 condition of his making a full and    B
    true disclosure of the whole circumstances within his
    knowledge relating to the offence and 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 (1) to (5) of section 308 of      C
    the Code of Criminal Procedure, 1973 (2 of 1974), be
    deemed to have been tendered under section 307 of that
    Code."

     11. Adverting to those provisions, the learned counsel
submitted that power to grant pardon is not an inherent power      D
of the Court. The said power has to be specifically conferred
and the learned counsel submitted that power under Section
306 of the Code cannot be exercised by a Special Judge under
the P.C. Act.
                                                                   E
     12. Learned counsel for the State on the other hand
submitted that the Court of Special Judge under the P.C. Act
is a Court of original jurisdiction. Section 5 of the P.C. Act
clearly enables a Special Judge with the power to grant pardon
and he further submitted that Sub-section 3 of Section 5 of the
P.C. Act saves the provision of Sub-section 2 of Section 5 and     F
that Section 5(2) must be read with Section 5(3). Sub-section
(3) of Section 5 of the P.C. Act is also set out below:

    "5(3) Save as provided in sub-sections (1) or sub-section
    (2), the provisions of the Code of Criminal Procedure, G
    1973 (2of1974), shall, so far as they are not inconsistent
    with this Act, apply to the proceedings before a special
    Judge; and for purposes of the said provisions, the Court
    of the special Judge shall be deemed to be a Court of
    Session and the person conducting a prosecution before H
    278     SUPREME CGURT REPORTS [2011] 13 (ADDL.) S.C.R.


A         a special Judge shall be deemed to be a public
          prosecutor."

       13. It is further submitted by the learned counsel for the
  State that the power of a Special Judge to grant pardon under
8 Section 5(2) of the Act is an unfettered power and the deeming
  clause has been employed only for the purpose of sub-sections
  (1) to (5) of section 308 of the code. Sub-sections 1 to 5 of
  Section 308 run as follows:

          "308. Trial of person not complying with co;,Jiiiuns of
c         pardon. (1) Where, in regard to a person who has accepted
          a tender of pardon made under section 306 or section 307,
          the Public Prosecutor certifies that in his opinion such
          person has, either by wilfully concealing anything essential
          or by giving false evidence, not complied with the condition
D         on which the tender was made, such person may be tried
          for the offence in respect of which the par.don was so
          tendered or for any other offence of which he appears to
          have been guilty in connection with the same matter, and
          also for the offence of giving false evidence:
E
                Provided that such person shall not be tried jointly
          with any of the other accused:

                Provided further that such person sha!! not be t;·ied
          for the offence of giving false evidence except with the
F         sanction of the High Court, and nothing contained in
          section 195 or section 340 shall apply to that offence.
                (2) Any statement made by such person accepting
          the tender of pardon and recorded by a Magistrate under
G         section 164 or by a Court under sub-section (4) of section
          306 may be given in evidence against him at such trial.
                (3) At such trial, the accused shall be entitled to plead
          that he has complied with the condition upon which such
          tender was made, in which case it shall be for the
H
 BANGARU LAXMAN v. STATE (THROUGH CBI) &                     279
      ANR. [ASOK KUMAR GANGULY, J .]
    prosecution to prove that the condition has no been              A
    complied with.

          (4) At such trial, the Court shall-

           (a) if it is a Court of Session, before the charge
           is read out an explained to the accused;                  B

           (b) if it is the Court of a Magistrate, before the
           evidence of the witnesses for the prosecution is
           taken,

    ask the accused whether he pleads that he has complied
                                                                     c
    with the conditions on which the tender <>f pardon was
    made.

          (5) If the accused does so plead, the Court shall
    record the plea and proceed with the trial and it shall,         D
    before passing judgment in the case, find whether or not
    the accused has complied with the conditions of the
    pardon, and, if it finds that he has so complied, it shall,
    notwithstanding anything contained in this Code, pass
    judgment of acquittal."                                          E

     14. Mr. Sunil Kumar, learned counsel for the appellant in
support of his submissions relied on several decisions which
are considered by this Court now.

     15. He relied on a decision of this Court in the case· of Lt.   F
Commander Pascal Fernandes vs. State of Maharashtra and
Ors.- AIR 1968 SC 594.

     16. Learned counsel for the appellant also relied on the
decision of this Court in A.R. Antulay vs. Ramdas Sriniwas           G
Nayak and Anr. - (1984) 2 SCC 500 in order to contend that
the procedure for granting pardon which has been indicated in
Section 5(2) read with Section 307 of the Code must be
followed namely that the Special Judge being a Court of
Sessions can only grant pardon after the commencement of the         H
    280 SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R.

A trial. But in the instant case pardon has been granted at the
  stage of investigation. Therefore, pardon has not been granted,
  according to the learned counsel for the appellant, after
  following the proper procedure.

B        17. Learned counsel relying on para 22 in Antulay's case
    (supra) urged that when the procedure has been provided then
    everything has to be done following the said procedure and
    other modes of performance are necessarily forbidden.

       18. Learned counsel also referred to paragraph 27 at page
C 524 of the report in Antu/ay (supra) to point out that the Special
  Judge is a Court of original jurisdiction and the trial of offences
  before him shall follow the procedure in the Code for trial of
  warrant cases by the Magistrate. Learned counsel also
  submitted that pardon is to be granted by the Special Judge,
D under provision of Section 307 of the Code which is
  corresponding to Section 308 of the old Code.
        19. Learned counsel also relied on a decision of this Court
  in State of U.P. vs. Singhara Singh - AIR 1964 SC 358 (para
E 8 at page 361 of the report) in order to contend that the
  principles in Taylor vs. Taylor (1876) 1 Ch. D. 426 must be
  followed in the instant case. The said principle stipulates that
  where a statute required the doing of a certain thing in a certain
  way, the thing must be done in that way or not at all.

F        20. Learned counsel also referred to the decision in the
    case of Queen Empress vs. Batera & Ors. reported in Criminal
    Judgments No.3 (Case No. 2838of1897) where the Court held
    that provision of Section 337 of the old Code must be strictly
    construed.
G
       21. We are unable to appreciate the aforesaid contentions
  raised by the learned counsel. It goes without saying that under
  Section 5(2) of the P.C. Act the power of the Special Judge to
  grant pardon is an unfettered power subject to stipulation made
H in the Section itself. Such power can be exercised at any stage
  BANGARU LAXMAN v. STATE (THROUGH CBI) &                   281
       ANR. [ASOK KUMAR GANGULY, J.]

and there is no stipulation that power can be exercised by the      A
Special Judge only at the stage of trial as urged by the
appellant's counsel. Th€ deeming clause which has been
introduced in Section 5(2) is for a very limited ..purpose
mentioned in Section 5(2) of the P.C. Act. Sub-Sections 1 to
5 of Section 308 have already been set out above and it is clear    B
therefrom that the said provisions have been enacted for a
different purpose namely for holding trial of a person for not
complying with the conditions of pardon.

      22. It is well known that a deeming provision is a legal
fiction and an admission of the non-existence of the fact           C
deemed. (See Mis. J.K. Cotton Spinning and Weaving Mills
Ltd. and another vs. Union of India and others - AIR 1988 SC
191 at 202). Therefore, while interpreting a provision creating
a legal fiction, the Court has to ascertain the purpose for which
the fiction is created.                                             D

     23. The law on this aspect has been very neatly summed-
up by Lord Justice James in Ex Parle Walton, in re Levy (1881)
17 Ch. D. 746. At page 756 the learned.Judge formulated as
follows:                                                            E
     "... When a statute enacts that something shall be deemed
     to have qeen done, which in fact and truth was not done,
     the Court is entitled and bound to ascertain for what
     purposes and between what persons the statutory fiction
                                                                    F
     is to be resorted to ...."

   24. The aforesaid formulation has been approved by
Constitution Bench of this Court in State of Travancore Cochin
and others vs. Shanmugha Vilas Cashewnut Factory, Qui/on
reported in AIR 1953 SC 333. At page 343 of the report the          G
aforesaid principles have been referred to by this Court along
with the various other decisions and which are set out:

     ""When a statute enacts that something shall be deemed
     to have been done, which in fact and truth was not done,       H
    282     SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R.


A         the Court is entitled and bound to ascertain for what
          purposes and between what persons the statutory fiction
          is to be resorted to ....

          The above observations were quoted with approval by
B         Lord Cairns and Lord Blackburn in Arthur Hill v. East and
          West India Dock Co., (1884) 9 A.C. 448. Lord Blackburn
          went on to adO at page 458:
                 •
          "I think the words here 'shall be deemed to have
          surrendered' ........ mean, shall be surrendered so far as
c         is necessary to effectuate the purposes of the Act and no
          further; ......... ."

          (emphasis added)

       25. Following the aforesaid well-settled principle, as we
0
  must, we hold that the deeming provision introduced in Section
  5(2) of the P. C. Act is not for fettering the power of the Special
  Judge to grant pardon in terms of Sec,::m 306 of the Code.
  The purpose of introducing the deeming provision in Section
E 5(2) of the P.C. Act is manifest from the text of Section 5(2),
  namely, the same is introduced only for the purposes of sub-
  sections 1 to 5 of Section 308 of the Code and it is only for
  the said purpose that the sanction is deemed to. have been
  tendered under Section 307 of the Code.

F       26. If this Court accepts the contention of learned counsel
  for the appellant that the Special Judge under the P.C. Act has
  no power lo grant the pardon under Section 306 of the Code
  in view of the deeming clause under Section 5(2) of the P.C.
  Act, that will amount to reading Section 5(2) of P.C. Act in a
G manner which is revolting to reason and by doing violence to
  the plain words of the statutes.

         27. The contention of the learned counsel for the appellant
    cannot be accepted for other reasons also which are discussed
    herein below.
H
  BANGARU LAXMAN v. STATE (THROUGH CBI) &                   283
       ANR. [ASOK KUMAR GANGULY, J.]
     28. The decision in Pascal (supra) was rendered on an          A
interpretation of Section 8(2) of Criminal Law Amendment Act,
1952. Section 8(2) of Criminal Law Amendment Act, 1952 is
set out below:

    "(2) A Special Judge may, with a view to obtaining the
                                                                    8
    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 condition of his making a full and
    true disclosure of th~ whole circumstances within his
    knowledge relating to the offence and to every other person     C
    concerned whether as principal or abettor, in the
    commission thereof; and any parson so tendered shall, for
    the purposes of Secs. 339 and 339-A of the Code of
    Criminal Procedure, 1898, (5of1898) be deemed to have
    been tendered under Sec. 338 of that Code."
                                                                    D
      29. Section 8(2) of Criminal Law Amendment Act, 1952
is virtually in parimateria with Section 5(2) of the P.C. Act

     30. The said decision in Pascal (supra) was rendered
when the old Criminal Procedure Code of 1898 was in force. E
After the enactment of the new Code of 1973, Sections 337 to
339 of the old Code were substituted by the Criminal Law
Amendment Act and Sections 306 to 308 of the present Code
conferred powers to grant pardon on the Magistrate and also
on the Court to which commitment is made. The decision in
Pascal (supra) was rendered in the context of a substantially F
different statutory provision. Section 337 of the old Code is
different from Section 306 of the present Code. Specially
Section 306(2)(a) which has been quoted above was not there .
in Section 337of1898 Code. Section 306{2){a) clearly makes
Section 306 applicable to the Court of Special Judge under the G
P.C. Act. Such a conclusion is inescapable on a conjoint
reading of Section 306(2)(a) with Section 26 of the P.C. Act,
which is set out below:

     26. Special Judges appointed under Act 46 of 1952              H
    284     SL'PREME COURT REPORTS [2011] 13 (ADDL.) S.C.R.


A         to be special Judges appointed under this Act.- Every
          special Judge appointed under the Criminal Law
          Amendment Act, 1952, for any area or areas and is
          holding office on the commencement of this Act shall be
          deemed to be a special Judge appointed under section
B         3 of this Act for that area or areas and, accordingly, on and
          from such commencement, every such Judge shall
          continue to deal with all the proceedings pending before
          him on such commencement in accordance with the
          provisions of this Act."
c      31. Apart from that, the questions which fell for
  consideration in Pascal (supra) are: (a) the difference between
  Sections 337 and 338 of the old Code and Section 8(2) of the
  Criminal Law Amendment Act (b) that the power of Special
  Judge in tendering pardon under Section 8(2) of the Criminal
D Law Amendment Act is limited to an application by the
  prosecution and the Special Judge cannot act suo motu (c) the
  further question was that the powers of the Special Judge under
  Section 8(2) are circumscribed by considerations under
  Section 540 of the old Code and (d) the further contention Was
E that Special Judge had not exercised his discretion properly
  in the case.

       32. None of the above considerations are relevant in the
  present case. Therefore, the said decision does not render any
F assistance to the appellant in connection with the points which
  have been urged on his behalf.

       33. The learned counsel for the State relied on a three
  Judge Bench decision of this Court in the case of Harshad S.
  Mehta and others vs. State of Maharashtra reported in (2001)
G 8 SCC 257. In the case of Harshad Mehta (supra) this Court
  was considering the Special Court (Trial of Offences Relating
  to Transactions in Securities) Act and it is admitted that the
  Court under the aforesaid Act is like the Special Court under
  P.C. Act. Both are Courts of Original Criminal Jurisdiction. In
H
  BANGARU LAXMAN v. STATE (THROUGH CBI) &                    285
       ANR. [ASOK KUMAR GANGULY, J.) .

paragraph 21 of the judgment in Harshad Mehta (supra) this           A
Court held as follows:

    "21. We have no difficulty in accepting the contention that
    the Special Court, per se, is not a Magistrate falling in any
    of the categories of Magistrates as enumerated in Section B
    306(1) and also that it is not a court to which the
    commitment of a case is made. But, it does not necessarily
    follow therefrom that the power to tender pardon under
    Sections 306 and 307 has not been conferred on the
    Special Court."
                                                                     c
    34. In coming to the conclusion that a Special Court is a
court of original criminal jurisdiction, this Court in Harshad
Mehta (supra) relied on the law laid down by the Constitution
Bench of this Court in Antulay's (supra) in which the Court was
considering the provisions of the P.C. Act.                     D

     35. Relying on the ratio in Antu/ay (supra), where Special
Judge has been considered a court of original ~riminal
jurisdiction this Court held in Harshad Mehta (supra) that in
order to make the said Court functionally oriented some powers       E
are conferred by the statute setting it up and except those
powers which are specifically denied, it has to function as a
court of original criminal jurisdiction not being hidebound by the
terminological status description of Magistrates or a Court of
Session. Under the Code, it will enjoy all the powers which a        F
court of original criminal jurisdiction enjoys save and except the
ones which are specifically denied. (see para 22, page 269 of
the report)

     36. The Court in Harshad Mehta (supra) also considered
the decision of this Court in Pascal (supra). After considering G
the decision in Pascal (supra), this Court in Harshad Mehta
(supra) came to the conclusion that the·Special Court enjoys
all powers which a court of original criminal jurisdiction enjoys
whether of a Magistrate or as a Court of Session, save and
except the one specifically denied. (See para 50 page 281). H
    286    SUPREME COURT REPORTS [2011) 13 (ADDL.) S.C.R.


A       37. The conclusion reached by three Judge Bench in
    Harshad Mehta (supra) after considering the decision in
    Pascal (supra) is as follows:

          "62. Our conclusion, therefore, is that the Special Court
          established under the Act is a court of exclusive
B
          jurisdiction. Sections 6 and 7 confer on that court wide
          powers. It is a court of original criminal jurisdiction and has
          all the powers of such a court under the Code including
          those of Sections 306 to 308."

c       38. If we.may note, the Court reached the aforesaid
    conclusion in Harshad Mehta (supra) even though under the
    aforesaid Act there is no provision like Section 5(2) in the P.C.
    Act.

0        39. If we follow the ratio of Harshad Mehta (supra) to the
    interpretation of Section 5(2) of the P.C. Act, it is clear that
    the power to grant pardon unde· Section 306 of the Code has
    not been specifically denied. If it is not specifically denied, then
    as a court of original criminal jurisdiction the Special Court
E   under P.C. Act has the power to grant pardon under Section
    306 of the present Code. Any different interpretation will be
    contrary to the plain words of Section 306 of the Code and
    also the law laid down by this Court in Harshad Mehta (supra)
    on the principles decided in Antulay (supra).

F        40. Reference in this connection can also be made to the
    decision of the Supreme Court in the case of State of Tamil
    Nadu vs. V. Krishnaswami Naidu and another, reported in
    (1979) 4 SCC 5. In that case the question was whether the
    Special Judge has the power of remand. This court, by
G   referring to Section 3(32) of the General Clauses Act, 1897
    defining a Magistrate, held that Magistrate will include a
    Special Judge. Therefore, a Special Judge shall be a
    Magistrate for the purposes of Section 167 of the Code even
    though the word 'Special Judge' is not mentioned in Section
H   167 (see para 7, pg. 8 of the report).
  BANGARU LAXMAN v. STATE (THROUGH CBI) &                     287
       ANR. [ASOK KUMAR GANGULY, J.]
      41. It is therefore clear that, on the ratio of V. Krishnaswami A
(supra), the Special Judge has been given a very important
magisterial function, namely the power of remand. Compared
to that, the power to grant pardon is an ancillary power.
Therefore under the scheme of the Code, read with Section
5(2) of the PC Act. and in light of the consistent view of this B
Court, a Special Judge will include a magistrate. On the same
parity of reasoning a Special Judge, unless specifically denied,
will have the power to grant pardon. Here there is no question
of specific denial, rather Section 5(2) of the P.C. Act clearly
confers this power subject to the deeming clause, the limited c
purpose of which has been discussed above.

     42. Thus, on a harmonious reading of Section 5(2) of the
P.C. Act with the provisions of Section 306, specially Section
306(2)(a) of the Code and Section 26 of the P.C. Act, this Court
is of the opinion that the Special Judge under the P.C. Act, D
while trying offences, has the dual power of the Session 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
~I.                                                                E

    43. It has already been held by this Court that the Special
Judge is fully vested with the powers of remand. The power of
granting remand is very wide power compared to the power of
granting pardon. Since this Court has already held that the          F
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.
     44. In view of the discussion made above, this Court is of G
the opinion that power of granting pardon, prior to the filing of
the charge sheet, is within the domain of judicial discretion of
the Special Judge before whom such a prayer is made, as in
the instant case by the prosecution.
                                                                  H
    288    SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R.


A      45. Any other conclusion would be detrimental to the
  administration of justice, in as much as, the power to grant
  pardon is contemplated in situations where serious offence is
  alleged to have been committed by several persons and with
  the aid of the evidence of the person, who had been granted
B pardon, the offence committed may be proved. The basis of
  exercise of this power is not to judge the extent of culpability
  of the persons to whom the pardon is tendered. The main
  purpose is to prevent failure of justice by allowing the offender
  to escape from a lack of evidence. ·
c      46. Therefore, this Court does not find any merit in the
  contention urged on behalf of the Appellant. However, this Court
  makes it clear that in the course of holding trial, the Special
  Judge will not be in any way influenced by the observations in
  the order granting pard'on but will act independently of the same.
D In this case, the Special Judge who granted pardon is not
  holding the trial. Therefore, at the time of holding trial, it is
  directed that the Special Judge will independently apply his
  mind .to the facts of the case in arriving at his conclusions.

E       47. With this direction the appeals, being without merit, are
    dismissed.

    R.P.                                       Appeals dismissed.