The State vs Hiralal G. Kothari And Others

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: supreme-court

Case Number: Criminal Appeals Nos. 25 to 27 of 1958

Decision Date: 30 November 1959

Coram: K.N. Wanchoo, Syed Jaffer Imam, J.L. Kapur

In the matter titled The State versus Hiralal G. Kothari and Others, decided on the thirtieth day of November, 1959, the Supreme Court of India rendered its judgment. The judgment was authored by Justice K.N. Wanchoo, who was joined by Justices Syed Jaffer Imam and J.L. Kapur forming the Bench. The parties are recorded as the State, designated as the petitioner, and Hiralal G. Kothari together with other respondents, designated as the respondents. The official citation of the decision appears as 1960 AIR 360 and 1960 SCR (2) 355, relating to offences under the Criminal Law concerning pardon, conspiracy and allied offences.

The headnote of the judgment outlines the factual background beginning with an investigation on nine March, 1956, which uncovered a conspiracy to disclose budget proposals in return for valuable consideration. A case was instituted on that date under section 165A of the Indian Penal Code, section 5(2) of the Prevention of Corruption Act, 1947, section 5 of the Official Secrets Act, 1923, and section 120B of the Indian Penal Code. The investigative process commenced on ten March, 1956, and subsequently a pardon was tendered to an individual identified as M by the Additional District Magistrate pursuant to section 337 of the Code of Criminal Procedure, 1898. Because of technical legal difficulties, the authorities chose to file a complaint under section 5 of the Official Secrets Act read in conjunction with section 120B of the Indian Penal Code against the persons alleged to be involved, and the matter proceeded before a magistrate on that basis.

During the magistrate’s proceedings, the prosecution sought to examine M in the capacity of an approver. The accused objected, contending that the proceedings before the magistrate only concerned the offences punishable under section 5 of the Official Secrets Act together with section 120B of the Indian Penal Code and that no pardon could be issued under section 337 for those specific offences. Consequently, the objectors argued that M could not be treated as an approver but merely as an ordinary witness. The prosecution counter-argued that the individual to whom the pardon was offered was expected to disclose the complete truth, including details of any subsidiary offences committed in the course of the principal offence for which the pardon was granted, and therefore the pardon should be interpreted to cover those subsidiary offences even though the subsidiary offences were not of the description mentioned in section 377(1) of the Code of Criminal Procedure.

The Court held that a pardon under section 377(1) of the Code of Criminal Procedure could be extended only with respect to the offences expressly mentioned in that provision. Because the offences under section 5 of the Official Secrets Act read with section 120B of the Indian Penal Code did not fall within the description of offences contemplated by section 337(1), no pardon could be granted for such offences. Accordingly, as the magistrate’s proceedings dealt exclusively with those offences, M could not be treated as an approver for the purpose of the present proceedings. The judgment therefore affirmed the limitation on the scope of a pardon and rejected the prosecution’s contention that the pardon could automatically encompass subsidiary offences not covered by the statutory language.

The appeals originated from the judgment and order dated 25 June 1957 issued by the Punjab High Court in Criminal Revisions numbers 184-D, 185-D and 186-D of 1956. Those revisions were themselves taken from the judgment and order dated 23 October 1956 rendered by the Sessions Judge in Delhi in Criminal Revision Applications numbers 249, 250 and 251 of 1956. Counsel for the appellant were Bipin Behari Lal and R. H. Dhebar. Counsel for the respondent in Criminal Appeal No. 25 of 1958 were G. C. Mathur and I. N. Shroff, while A. G. Ratnaparkhi appeared for the respondent in Criminal Appeal No. 26 of 1958. The respondent in Criminal Appeal No. 27 of 1959 did not appear. The matter was heard on 30 November 1959 and the judgment was delivered by Justice Wanchoo.

These three appeals concerned three certificates that had been granted by the Punjab High Court in a single criminal matter, and the Court chose to consider them together because the legal issue raised in each was identical. For the purpose of explaining that issue, the Court set out a concise factual background. The Government Printing Press situated at Rashtrapati Bhavan, commonly referred to as Rashtrapati Bhavan Printing Press, was located within the President’s estate in New Delhi. Mr Jacobs held the position of General Foreman of that Press and, as part of his official duties, supervised the annual printing of the budget proposals. In February 1955 Mr Jacobs performed that supervisory function in his official capacity. It emerged that Mr Jacobs had entered into a conspiracy to disclose the budget proposals after receiving valuable consideration for doing so. The disclosed proposals were first transmitted to D. P. Chadda and subsequently passed on to several businessmen in Bombay, among them Nandlal More and Hiralal G. Kothari, through an intermediary identified as A. L. Mehra. The act of disclosure violated the Official Secrets Act of 1923. In addition, a separate offence under the Prevention of Corruption Act of 1947 was committed because money was paid to Mr Jacobs for the disclosure.

The same pattern of wrongdoing recurred in February 1956 with respect to the budget proposals for the financial year 1956-57. The conspiracy was uncovered on 9 March 1956, prompting the registration of a case under section 165-A of the Indian Penal Code, section 5(2) of the Prevention of Corruption Act, section 5 of the Official Secrets Act and section 120-B of the Indian Penal Code. An investigation commenced on 10 March 1956. Subsequently, on 23 March 1956, the Additional District Magistrate granted a pardon to A. L. Mehra under section 337 of the Code of Criminal Procedure, specifying the four offences listed in the order. Because of certain procedural complications, a complaint was filed under section 5 of the Official Secrets Act read with section 120-B of the Indian Penal Code against the remaining accused persons, expressly stating that the proceedings relating to the charge under section 5(2) of the Prevention of Corruption Act would be dealt with in a separate proceeding. The magistrate then initiated proceedings on that complaint, a fact that the Court noted for further consideration.

The record showed that no trial had yet commenced with respect to the offences charged under section 5(2) of the Prevention of Corruption Act and section 165-A of the Indian Penal Code. During the proceedings that were pending before the magistrate on the charge under section 5 of the Official Secrets Act together with section 120-B of the Indian Penal Code, the prosecution applied to call Mehra as an approver. The accused then objected, contending that because the magistrate’s jurisdiction was limited to the two offences mentioned, Mehra could not be examined as an approver. The accused further submitted that, on that basis, the matter could not be committed to the Court of Session and should instead be disposed of by the magistrate himself.

The magistrate, however, ruled that Mehra could be treated as an approver and that the proceedings before him were therefore of a commitment nature. The matter was subsequently taken on revision to the Sessions Judge. The Sessions Judge examined the scope of the magistrate’s jurisdiction and observed that the proceedings concerned only the offences under section 5 of the Official Secrets Act read with section 120-B of the Indian Penal Code. He further noted that no pardon could be issued under section 337 of the Code of Criminal Procedure for those particular offences. Accordingly, the Sessions Judge held that Mehra could not be classified as an approver; instead, he had to be examined as an ordinary witness, and the proceedings should be treated as a trial before the magistrate rather than as commitment proceedings. The Sessions Judge then recommended to the High Court that the magistrate’s order be set aside.

The High Court accepted the Sessions Judge’s view and upheld the order, thereby overturning the magistrate’s decision. In doing so, the High Court also granted certificates under article 134(1)(c) of the Constitution, which gave rise to the three appeals now before the Supreme Court. The sole issue raised before this Court was whether the magistrate’s view was correct—that Mehra could be treated as an approver and examined as such for the purposes of the pending proceedings. The question of whether the case should be committed to the Court of Session was no longer relevant, because one of the accused had requested trial by the Court of Session under section 13(2) of the Official Secrets Act. The High Court had examined section 337 of the Code of Criminal Procedure and concluded that a pardon under that provision could be granted only for the specific categories of offences listed therein. It further held that the combination of section 5 of the Official Secrets Act with section 120-B of the Indian Penal Code did not fall within the language of section 337(1). Consequently, since the proceedings before the magistrate dealt solely with those offences, Mehra could not be treated as an approver to whom a pardon had been tendered. A simple reading of section 337 of the Code of Criminal Procedure confirmed the High Court’s interpretation. Section 337(1) provides for the tender of a pardon with respect to the following offences: (i) any offence triable exclusively by the High Court or the Court of Session; (ii) any offence punishable with imprisonment of up to seven years; and (iii) any offence enumerated under sections 161, 165, 165-A, 216-A, 369, 401, 435 and 477-A of the Indian Penal Code.

Section 337 of the Code of Criminal Procedure enumerates three kinds of offences for which a pardon may be tendered. The first category comprises any offence that is triable exclusively by the High Court or by a Court of Session. The second category includes any offence that is punishable with imprisonment for a term that may extend to seven years. The third category contains any offence that falls under sections 161, 165, 165-A, 216-A, 369, 401, 435 and 477-A of the Indian Penal Code. Accordingly, a pardon can be granted only with respect to an offence that fits within one of these three specified categories. It is not disputed that an offence under section 5 of the Official Secrets Act, read together with section 120-B of the Indian Penal Code, does not fall within any of the categories mentioned above. Consequently, if the proceedings before the magistrate relate solely to an offence under section 5 of the Official Secrets Act together with section 120-B of the Indian Penal Code, section 337 of the Code of Criminal Procedure would be inapplicable and no pardon could be offered to any person in respect of that offence. Nevertheless, it has been argued that subsection (1) of section 337 contemplates the tender of a pardon on the condition that the person receiving the pardon makes a full and true disclosure of all circumstances within his knowledge relating to the offence and to every other person concerned, whether as principal or as abettor. This argument suggests that the individual to whom the pardon is tendered is expected to convey the entire truth, including details of any subsidiary offence that may have been committed in the course of the primary offence, and therefore that the pardon should be deemed to include the subsidiary offence even though a pardon could not have been granted for that subsidiary offence alone if it fell outside the categories set out in subsection (i). Reliance for this position is also placed upon section 339 of the Code of Criminal Procedure, which provides that if a person who has accepted a pardon either wilfully conceals any essential fact or gives false evidence, or otherwise fails to comply with the condition on which the pardon was made, that person may be tried for the offence for which the pardon was tendered or for any other offence of which he appears to have been guilty in connection with the same matter. It is suggested that the specific provision in section 339 for trial with respect to any other offence that might have been committed in connection with the same matter indicates that the pardon would also cover that other offence, even though it may not be an offence for which a pardon could be tendered under section 337. The view of this Court, however, is that no such inference can be drawn from the language of section 339, because that section deals with a different contingency altogether, namely the question of whether the conditions attached to the pardon have been complied with. It must be remembered that a pardon tendered under section 337 serves as a protection from prosecution, and the failure to fulfill the conditions on which the pardon was made removes that protection. All that section 339 says, provided the requisite certificate

In that provision, the certificate issued by the Public Prosecutor indicated that the person to whom the pardon was offered could be prosecuted for the offence for which the pardon was initially offered as well as for any other offence in which the person appeared to be guilty in connection with the same matter. This result was essentially the same as if section 339 merely declared that a pardon would be forfeited upon failure to comply with its conditions. Consequently, the wording of section 339 did not assist in interpreting section 337, and the Court therefore examined the language of section 337 to determine whether a pardon could be granted for an offence under section 5 of the Official Secrets Act read with section 120-B of the Indian Penal Code. The fact that the police application to the Additional District Magistrate, and the Magistrate’s order granting the pardon, mentioned section 5 of the Official Secrets Act along with other offences for which a pardon could be granted did not imply that a pardon could be extended to an offence under that Act if, according to the law set out in section 337(1), no pardon could be granted for an offence under section 5 of the Official Secrets Act. The Court read section 337(1) and found it clear that a pardon could be extended only with respect to the three categories of offences expressly listed in that provision and none other. Because section 5 of the Official Secrets Act read with section 120-B of the Indian Penal Code did not fall within any of those categories, the Court held that no pardon could be granted for that offence. Accordingly, Mehra, to whom a pardon had been tendered, could not be examined as an approver in proceedings that concerned only an offence under section 5 of the Official Secrets Act read with section 120-B of the Indian Penal Code. Counsel for the appellant referred to three decisions—Queen-Empress v. Ganga Charan (1), Harumal Parmanand v. Emperor (2), and Shiam Sunder v. Emperor (3)—to support the view that a pardon under section 337(1) might be extended not only to the offences expressly enumerated therein but also to other offences committed in the course of those offences, even if such offences were not covered by the terms of section 337(1). The Court observed, however, that those decisions dealt with different factual situations and did not address the interpretation of section 337(1) of the Code of Criminal Procedure. In each of those cases, the issue before the courts was whether an approver who had been prosecuted under section 339 for certain offences could or should be so prosecuted, and the decisions hinged on the specific terms of the pardon granted in those cases. The Court therefore concluded that the cited authorities were not applicable to the present question of whether a pardon under section 337(1) could be granted for an offence under section 5 of the Official Secrets Act read with section 120-B of the Indian Penal Code.

The Court explained that the protection offered by a pardon to an approver should not be interpreted in a narrow manner. It observed that when law allows pardons to be given to accomplices, the approver is required to make a thorough and complete disclosure of all facts within his knowledge. Those facts must relate to the offence or offences about which the approver gave evidence and must be disclosed fully. The Court distinguished these principles from the considerations that apply during a trial conducted under section 339 of the Code of Criminal Procedure. It noted that the proviso to section 339 permits an approver, at his trial, to plead that he has complied with the condition on which the pardon was offered. If the approver successfully proves such compliance, the Court held that he becomes protected from prosecution for all offences that appear to have been committed in connection with the matter. The matter, in turn, gave rise to the original offence for which the pardon was granted, thereby extending the protection to related charges. The Court further stated that the three earlier decisions it had mentioned were decided on the question of whether the accused had complied with the conditions of the pardon. Those decisions, reported in I.L.R. 11 All. 79, A.I.R. 1915 Sind 43, and A.I.R. 1921 All. 234, each concluded that the accused had indeed complied with the stipulated conditions. Because the accused had complied, the Court held that the trial conducted under section 339 was improper and therefore invalid. The present case, however, did not involve section 339 at all, and the issue to be decided concerned the scope of a pardon under section 337(1) of the Code of Criminal Procedure. The specific question was whether a pardon under section 337(1) could be granted for an offence punishable under section 5 of the Official Secrets Act read with section 120-B of the Indian Penal Code. The Court found that, on the plain terms of section 337(1), no pardon could be granted for an offence of that nature. Consequently, because the proceedings before the magistrate concerned only an offence under section 5 of Official Secrets Act read with section 120-B of the Indian Penal Code, Mehra could not be examined as an approver. Accordingly, the Court concluded that the appeals presented no substantive ground for relief and therefore ordered that they be dismissed.