The State vs Hiralal Girdharilal Kothari, D.P.

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

Court: Supreme Court of India

Case Number: Not extracted

Decision Date: 30 November 1959

Coram: J. L. Kapur, K. N. Wanchoo, S. Jafer Imam

The case titled The State versus Hiralal Girdharilal Kothari, D.P., was decided on 30 November 1959 by the Supreme Court of India. The bench comprised Justices J. L. Kapur, K. N. Wanchoo and S. Jafer Imam, and the judgment was delivered by Justice Wanchoo. The three appeals before the Court arose from three certificates that had been granted by the Punjab High Court in a criminal proceeding; the Court chose to consider them together because they raised a common legal question. The facts relevant to the appeals are as follows. A Government Printing Press located at the Rashtrapati Bhavan estate in New Delhi, popularly known as the Rashtrapati Bhavan Printing Press, was under the supervision of a man named Jacobs, who held the position of General Foreman. In his official capacity Jacobs was responsible each year for printing the government’s budget proposals at that Press, and he performed this function in February 1955 as well. It was alleged that Jacobs entered into a conspiracy to disclose the budget proposals after receiving valuable consideration. According to the allegation, the budget proposals were first passed to D. P. Chadda, who then transmitted them to certain businessmen in Bombay, including Nandlal More and Hiralal G. Kothari, through an intermediary identified as A. L. Mehra. The alleged disclosure was a violation of the Official Secrets Act, No. XIX of 1923. In addition, a separate offence under the Prevention of Corruption Act, No. II of 1947, was alleged because money was said to have been paid to Jacobs for revealing the proposals. A similar scheme was alleged to have occurred in February 1956 with regard to the budget proposals for the fiscal year 1956‑57. The matter came to light on 9 March 1956, and a case was then registered invoking 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. Investigation began on 10 March 1956. On 23 March 1956 the Additional District Magistrate offered a pardon to A. L. Mehra under section 337 of the Code of Criminal Procedure; the pardon covered the four offences specified in the magistrate’s order. Because of certain technical legal difficulties, a subsequent complaint was filed under section 5 of the Official Secrets Act read together with section 120‑B of the Indian Penal Code, and the complaint expressly stated that proceedings relating to the charge under section 5(2) of the Prevention of Corruption Act would be dealt with separately. Proceedings on this complaint then commenced before a magistrate. It should be noted that, at the time of writing, no proceedings had yet commenced with respect to the offences under section 5(2) of the Prevention of Corruption Act or section 165‑A of the Indian Penal Code. During the magistrate’s proceedings the prosecution sought to examine Mehra as an approver. The accused objected, arguing that because the proceedings before the magistrate were instituted only under section 5 of the Official Secrets Act, Mehra could not be examined as an approver.

In the proceedings before the magistrate, the prosecution sought to examine Mehra as an approver, contending that his testimony could be taken under the provisions of section 5 of the Official Secrets Act read with section 120‑B of the Indian Penal Code. The accused objected, arguing that because the proceedings were limited to those two statutes, Mehra could not be examined as an approver and therefore the case should not be committed to the Court of Session but should be disposed of by the magistrate himself. The magistrate rejected the objection, holding that Mehra could be treated as an approver and consequently the proceedings before him were of the nature of commitment proceedings, which would require referral to the Court of Session. This decision was challenged by way of a revision petition to the Sessions Judge. The Sessions Judge examined the matter and concluded that, since the proceedings before the magistrate were exclusively under section 5 of the Official Secrets Act read with section 120‑B of the Indian Penal Code, and because no pardon could be tendered under section 337 of the Code of Criminal Procedure for offences of that kind, Mehra could not be regarded as an approver. Accordingly, the Sessions Judge held that Mehra should be examined as an ordinary witness, that the proceedings were trial proceedings before the magistrate, and that they were not commitment proceedings. The Sessions Judge therefore recommended to the High Court that the magistrate’s order be set aside. The High Court reviewed the revision and adopted the view of the Sessions Judge, ordering that the magistrate’s order be annulled. It also granted certificates under article 134(1)(c) of the Constitution, after which the State filed three appeals before this Court.

The sole issue presented before this Court is whether the magistrate’s view was correct in treating Mehra as an approver for the purposes of the proceedings before him. The question of committing the case to the Court of Session does not arise, because one of the accused has requested a trial by the Court of Session under section 13(2) of the Official Secrets Act. The High Court examined section 337 of the Code of Criminal Procedure and concluded that a pardon under that provision can be extended only with respect to certain offences enumerated therein. It held that section 5 of the Official Secrets Act read with section 120‑B of the Indian Penal Code does not fall within the offences listed in section 337(1), and therefore the proceedings before the magistrate, which concerned only those offences, could not involve a pardon to Mehra as an approver. A straightforward reading of section 337(1) confirms this interpretation. Section 337(1) permits a pardon in respect of (i) any offence triable exclusively by the High Court or Court of Session, (ii) any offence punishable with imprisonment of up to seven years, and (iii) any offence under specified sections of the Indian Penal Code, namely sections 161, 165, 165‑A, 216‑A, 369, 401, 435 and 477‑A. Consequently, a pardon may be granted only for offences falling within one of those categories. It is not disputed that an offence under section 5 of the Official Secrets Act read with section 120‑B of the Indian Penal Code does not fall within any of the categories enumerated in section 337(1). Hence, the High Court’s view that Mehra could not be treated as an approver for whom a pardon had been tendered is legally sound.

In this case, the Court observed that an offence punishable under section 5 of the Official Secrets Act together with section 120‑B of the Indian Penal Code does not fall within any of the categories enumerated in subsection (i) of section 337 of the Code of Criminal Procedure. Consequently, if the proceedings before the magistrate concerned solely such an offence, the provisions of section 337 would be inapplicable and no pardon could lawfully be offered to any individual. Counsel, however, contended that subsection (1) of section 337 envisages 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 involved, whether as principal or abettor. According to that submission, the recipient of the pardon is required to disclose the entire truth, including details of any subsidiary offence that may have been committed during the course of the principal offence, and that the pardon therefore must be understood to extend to the subsidiary offence even though, if the subsidiary offence alone had been committed and it did not fall within the categories listed in subsection (i), a pardon could not have been granted for it. The argument further relied upon section 339 of the Code of Criminal Procedure, which provides that where a person who has accepted a pardon either wilfully conceals any material fact or gives false evidence, and thereby fails to comply with the condition on which the pardon was tendered, he may be tried for the offence for which the pardon was given or for any other offence of which he appears to be guilty in connection with the same matter. It was submitted that the special provision in section 339 for trial of any other offence connected with the same matter indicates that the pardon would also cover that other offence, even though such offence would not itself be one for which a pardon could be originally tendered. The Court, however, expressed the view that no such implication can be drawn from the language of section 339, because that section addresses a different contingency, namely the compliance with the conditions attached to the pardon. The Court reminded that a pardon granted under section 337 constitutes a shield against prosecution, and that breach of the stipulated conditions removes that protection. Accordingly, section 339, subject to the issuance of the required certificate by the Public Prosecutor, merely permits the prosecution of the person who received the pardon for the offence for which the pardon was granted and also for any other offence that appears to be connected with the same matter. In effect, the provision operates as if it were stating that on failure to comply with the conditions, the protection afforded by the pardon is forfeited.

In examining the effect of the words of section 339, the Court observed that those words merely state that a pardon would be forfeited if the conditions of the pardon are not fulfilled. Consequently, section 339 does not aid in interpreting section 337. The Court therefore turned to the language of section 337 to decide whether a pardon 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 noted that the police application to the Additional District Magistrate and the magistrate’s order both listed section 5 of the Official Secrets Act among other offences for which a pardon might be granted. However, the Court held that such a listing does not imply that a pardon may be issued for that particular offence if the statutory language of section 337(1) does not permit it. Reading section 337(1) strictly, the Court found that a pardon may be granted only with respect to the three categories of offences expressly mentioned in that provision and to none other. Since the offence under section 5 of the Official Secrets Act together with section 120‑B does not fall within any of those categories, the Court concluded that no pardon could be issued for that offence. Accordingly, the Court held that Mehra, to whom a pardon had been tendered, could not be examined as an approver in proceedings that concerned solely the offence under section 5 of the Official Secrets Act read with section 120‑B of the Indian Penal Code.

Counsel for the appellant then cited three authorities – Queen‑Empress v. Ganga Charan (I.L.R. 11 All. 79); Harumal Parmanand v. Emperor (A.I.R. 1915 Sind 43); and Shiam Sunder v. Emperor (A.I.R. 1921 All. 234) – to support the view that a pardon under section 337(1) might extend beyond the offences enumerated therein to other offences committed in the course of the enumerated offences. The Court examined these cases and observed that they dealt with entirely different factual circumstances and were not concerned with 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 turned on the specific terms of the pardons granted in those matters. The courts in those decisions had held that the scope of a pardon for an approver should not be construed narrowly, emphasizing that the law requires a thorough and complete disclosure of all facts known to the approver concerning the offence or offences related to the matter for which the pardon was given. The Court therefore held that the cited authorities were inapplicable to the present question, which concerned only the permissibility of a pardon under section 337(1) for an offence under the Official Secrets Act and not the scope of protection conferred by a pardon under section 339.

In the present discussion the Court observed that the considerations applicable when a trial proceeds under section 339 of the Code of Criminal Procedure differ entirely from those relevant to the present matter. The proviso to section 339 provides that, at his trial, an approver may plead that he has complied with the conditions on which a pardon was offered. If the approver succeeds in establishing that he fulfilled those conditions, the law shields him from prosecution for every offence that appears to have been committed in connection with the matter that gave rise to the offence for which the pardon was tendered.

The Court noted that the three earlier cases revolved around the question of whether the accused had complied with the conditions attached to the pardon that had been extended to him. In each of those cases the courts held that the accused had indeed complied with the stipulated conditions. Consequently, the trials conducted under section 339 in those instances were declared to be invalid.

Turning to the present case, the Court clarified that it was not concerned with the provisions of section 339. The issue before it was whether a pardon under section 337(1) of the Code of Criminal Procedure 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 clear terms of section 337(1), no pardon could be granted for an offence of this nature.

Because the proceedings before the magistrate involved only the offence under section 5 of the Official Secrets Act read with section 120‑B of the Indian Penal Code, the Court concluded that the accused, Mehra, could not be examined as an approver in that court. The appeals presented therefore lacked any legal force, and the Court dismissed the appeals.