DILIP SUDHAKAR PENDSE & ANR.versusCENTRAL BUREAU OF INVESTIGATION

                        [2013) 7 S.C.R. 646


A              DILIP SUDHAKAR PENDSE & ANR.
                                  v.
             CENTRAL BUREAU OF INVESTIGATION
               (Criminal Appeal No. 966 of 2013)
                           JULY 16, 2013
B
          (H.L. GOKHALE AND MADAN B.LOKUR, JJ.]

        Code of Criminal Procedure, 1973:

c         s. 306(5)(b) - Tender of pardon to accomplice and
    committal of case to Court of Session - Offences punishabfe
    ulss 420, 468, 471 and 477-A read with s. 120-8 /PC -
    Additional Chief Metropolitan Magistrate granting pardon to
    one of accused on his turning approver, and committing the
0   case to Court of Session - Held: Charges leveled against
    appellants are all triable by Magistrate's Court, and
    cognizance is taken by Additional Chief Metropolitan
    Magistrate and not by Chief Metropolitan Magistrate - Further,
    it was also not an offence triable by Special Judge under
    Criminal Law Amendment Act, 1952 - It was, thus, a case
E   falling in the category of 'any other case' under sub-s. (5)(b)
    of s. 306 CrPC and had to be made over to Chief metropolitan
    Magistrate for trial - Order of High Court directing the case
    to be tried by Court of Session is set aside - Proceedings will
    stand restored to file of Chief Metropolitan Magistrate who
F   shall proceed with trial - As regards cancellation of order
    granting pardon, it would be for appellants to apply before the
    Magistrate concerned.
        A charge-sheet against the appellants and others for
G   offences punishable u/ss 420, 468, 471 and 477-A read
    with s.120-B IPC, was filed in the Court of Addi. Chief
    Metropolitan Magistrate. One of the accused turned
    approver and the ·Magistrate by order dated 10.9.2008,
    granted him pardon and committed the case to the Court
H                                646
 DILIP SUDHAKAR PENDSE & ANR. v. CENTRAL              64 7
          BUREAU OF INVESTIGATION

of Session for trial. The Sessions Judge held that the A
offences were not exclusively triable by the Court of
Session, and sent the case to Chief Metropolitan
Magistrate for trial. However, the High Court, in the writ
petition, directed the matter to be tried by the Court of
Session.                                                   B
    Allowing the appeal, the Court

     HELD: 1.1. In the instant case, the offences were
triable by the Magistrate's Court and not exclusively
triable by the Court of Session: and the Magistrate taking C
cognizance was Additional Chief Metropolitan Magistrate
and not the Chief Metropolitan Magistrate. It was also not
an offence triable by the Special Judge under the Criminal
law Amendment Act, 1952. That being so, it was a case
falling in the category of 'any other case' under sub-s. D
(5)(b) of s.306 CrPC and, therefore, had to be made over
to the Chief Metropolitan Magistrate for trial. Therefore,
the order passed by the High Court is set aside. The
proceeding will now stand restored to the file of Chief
Metropolitan Magistrate who shall proceed with the trial. E
[para 10, 12 and 13] [652-D-F; 653-B-D]

     1.2 As regards cancellation of order granting pardon,
it would be for the appellants to apply before the
Magistrate and it is for him to take appropriate decision    F
if any such application is filed. [para 14] [653-D-E]

    CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 966 of 2013.

    From the Judgment & Order dated 7. 7.2011 of the High G
Court of Judicature at Bombay in Criminal Writ Petition No.
1737 of 2009.

    P.R. Namjoshi, Vivek Gore, Shankar Narayanan, Gaurav
Agrawal for the Appellants.
                                                             H
    648      SUPREME COURT REPORTS                 [2013] 7 S.C.R.

A       Rakesh K. Khanna, Priyanka Gupta, Prakriti Purnima, H.
    Prabhakar, B.V. Bairam Das, Rajiv Nanda, Arvind Kumar
    Sharma for the Respondents.
                           J

          The Judgment of the Court was delivered by
B         PER GOKHALE, J. Leave granted.

         1. Heard Mr. P.R. Namjoshi, learned counsel appearing
    for the appellants and Mr. Rakesh K. Khanna, learned
    Additional Solicitor General appearing on behalf of the
c   respondent.

         2. The appellants seek to challenge the order passed by
    the Bombay High Court allowing the Criminal Writ Petition filed
    bythe respondent-C.8.1. The C.B.I. had sought to challenge the
    order passed by the Special Judge, C.B.I., Greater Mumbai,
D   which had allowed the Miscellaneous Application filed by the
    appellants and set aside the order passed by the Additional
    Chief Metropolitan Magistrate.

          3. lhe facts leading to this appeal are as under:
E
         The appellants herein along with one Rajendraprasad K.
    Jhunjhunwala and others are being prosecuted for the alleged
    offences punishable under Sections 420, 468, 471 and 477-A
    read with Section 120-B of l.P.C. A charge-sheet has been filed
    by the C.B.!. against the appellants and the said Jhunjhu'nwala
F   and others in the Additional Chief Metropolitan Magistrate's
    19th Court, Esplanade, Mumbai, which lias been numbered as
    CC No. 113/CPW/2006. It so transpired that during the course
    of that proceeding the aforesaid Jhunjhunwala turned approver,
    and his statement was recorded by the Economic Offence wing
G   of C.B.I. under Section 306(4) of the Code of Criminal
    Procedure ('Cr.P.C.' for short) for grant of pardon. The C.B.I.
    moved an application dated 7.8.2008 for recording his
    statement pefore the learned Additional Chief Metropolitan
    Magistrate, and the learned Magistrate passed order on
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  DILIP SUDHAKAR PENDSE & ANR. v. CENTRAL                  649
  BUREAU OF INVESTIGATION [H.L. GOKHALE, J.]
10.9.2008 granting him pardon. The learned Magistrate has          A
thereafter passed an order committing the proceeding to the
Court of Sessions for trial. The operative order of the learned
Magistrate dated 10.11.2008 reads as follows:

     "1. The case is committed to the Hon'ble Court of
                                                                   8
     Sessions for trial as provided under Section 306(4) of the
     Cr.P.C."

     4. This order of the Learned Magistrate was challenged
by the appellants by filing a Miscellaneous application in the
Special Case No.783 of 2008 before the Court of Special            C
Judge, C.8.1., Greater Mumbai.

      5. The Learned Sessions Judge allowed that application
 by the order dated 7.3.2009. As seen from paragraph 2 of that
 order, it was contended before the learned Sessions Judge         0
 ~hat the Additional Chief Metropolitan Magistrate cannot
 impose jurisdiction on the superior Court. The alleged offences
 against the appellants are triable before a Metropolitan
 Magistrate, and the Sessions Court had no jurisdiction to try
 or entertain and decide the said offences. This submission
                                                                   E
 came to be accepted by the learned Sessions Judge. It is
 specifically stated in paragraph 8 of his order that admittedly
 the offences alleged against the appellants-accused were not
 exclusively triable by the Court of Sessions, and therefore the
 matter was required to be transferred back to the Court of
 Chief Metropolitan Magistrate for disposal in.accordance with     F
 law. Learned Sessions Judge, therefore, allowed that
·Miscellaneous application and directed his Registrar to send
 the papers of the Special case No. 783 of 2008 to Chief
 Metropolitan Magistrate for trial in accordance with law.
                                                                   G
     6. This order of the Court of Sessions was challenged by
the respondent in the High Court of Bombay by filing Crl.W.P.
No. 1737 of 2009 and a Learned Single Judge of the High
Court has allowed that writ petition by his order dated
7.7.2011. It was held that the order passed by the Additional      H
    650       SUPREME COURT REPORTS                   [2013) 7 S.C.R.


A   Chief Metropolitan Magistrate was not an order of transfer, but
    was the order of committal to the Court of Sessions. The
    Learned Single Judge therefore allowed the petition in terms
    of prayer 'B' and 'C' whereby the matter would be now tried by
    the Court of Sessions.
B
        7. Being aggrieved by this judgment and order the present
    Special Leave Petition (now converted into criminal Appeal)
    has been filed.

         8. Learned counsel for the appellants Mr. Namjoshi has
C   raised the issue of hierarchy of Courts. His principal submission
    has been that since the offences were triable by a Court of
    Magistrate, the prosecution thereof could not have been
    transferred to the Court of Sessions. Admittedly, the offences
    were not at all exclusively triable by the Court of Sessions.
D   Section 306 of Cr.P.C. is relevant for our purpose. It reads as
    follows:-                                                      ·

         306. Tender of pardon to Accomplice (1)With a view to
         obt<iiining the evidence of any person supposed to have
         been directly or indirectly conc~rned in or privy to an
E
         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 offence, and
         the Magistrate of the first class iriquiring into or trying the
         offence, at any stage of the inqujry or trial, may tender a
F        pardon to such person on conditiori 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.
G
          2. This section applies to:-

                 (a) any offence triable exclusively by the Co1J.rt of
                 Session or by the Court of a Special juCfge
                 appointed under the Criminal Law Amendment Act,
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 DILIP SUDHAKAR PENDSE & ANR. v. CENTRAL                   651
 BUREAU OF INVESTIGATION [H.L. GOKHALE, J.]
          1952 (46 of 1952)                                        A

     (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-            B
    section (1) shall record:-

           (a) his reasons for so doing;

           (b) Whether the tender was or was not accepted by       C
           the person to whom it was made,

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

           (a) shall be examined as a witness in the Court of      o
           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.
                                                                   E
    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:-                                                         F

           (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 Judicial Magistrate;            G

           (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;
                                                                   H
    652      SUPREME COURT REPORTS                     [2013] 7 S.C.R.


A                (b) In any other case, make over the case to the
                 Chief Judicial Magistrate who shall try the c::ase
                 himself."

         9. Sub-section (5) thus lays down as to whom the ca$e is
    to be committed for trial;
8
          (i) If the case is exclusively triable by the Court of Sessions,
          or if the Magistrate taking cognizance is Chief Judicial
          Magistrate in which cases it is provided that those cc;ises
          will be committed for trial to the Court of Session,
c
          (ii) If the offence is exclusively triable by a Special Judge
          appointed under the Criminal Law Amendment Act, 1952,
          then to that Court and

D      .(iii) In any other case to the Chief Judicial Magistrate.
         10. In the present case, the offences were not exclusively
  triable by the Court of Sessions, and the Magistrate .taking
  cognizance was not the Chief Judicial Magistrate. It was also
  not an offence triable by the Special Judge under the Criminal
E Law Amendment Act, 1952. That being so, it was a case f<111ing
  in category of 'any other case' under sub-sectio (5)(b) and
  therefore had to be made over to the Chief Judicial Magistrate
  for trial.

F        11. It is, therefore, submitted that the High Court was in
    error in committing the case to the Court of Sessions. It was
    further submitted that even if the Court of Sessions framed the
    charges, the matter will again have to go back to the Chief
    Judicial Magistrate for the trial. That being so, the order of the
    High Court suffered a patent error of law.
G
         12. Mr. Rakesh K. Khanna, learned Additional Solicitor
    General appearing for the respondent, on the other hand,
    contended that under sub-section 5(a)(i) two options were
    available. He submitted that the matter has to be committed to
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  DILIP SUDHAKAR PENDSE & ANR. v. CENTRAL                       653
  BUREAU OF INVESTIGATION [H.L. GOKHALE, J.]

the Court of Sessions undisputedly if the offence was triable          A
exclusively by that Court. He, however, maintained that even if
the matter was not exclusively triable by the Court of Sessions,
it could still be committed to that Court, if the cognizance is
taken by the Chief Metropolitan Magistrate. In the facts of the
present case, the charges which are levelled against the               B
appellants are all triable by the Magistrate's Court, and there
is no dispute about that, the cognizance is taken by the
Additional Chief Magistrate and not by the Chief Metropolitan
Magistrate. That being so, it is not possible to accept this
submission of Mr. Khanna.                                              c
    13. In the circumstances, we allow this appeal, and set
aside the order passed by the High Court. The proceeding will
n6w stand restored to the file of Chief Metropolitan Magistrate
who shall proceed with the trial.
                                                                       D
     14. Mr. Namjoshi submits that the appellants are aggrieved
by the pardon granted to the aforesaid Jhunjhunwala, and they
intend to apply for cancellation of that order. It would be for them
to apply before the Magistrate and it is for the Magistrate
concerned to take appropriate decision on such application.            E
       15. The appeal is allowed accordingly.
R.P.                                             Appeal allowed.