Karnataka High Court
Sri.Dinesh.M vs Central Bureau Of Investigation on 4 December, 2024
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
1
Reserved on : 25.11.2024
Pronounced on : 04.12.2024
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 04TH DAY OF DECEMBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
CRIMINAL PETITION No.12176 OF 2024
C/W
CRIMINAL PETITION No.12188 OF 2024
CRIMINAL PETITION No.12479 OF 2024
CRIMINAL PETITION No.12492 OF 2024
IN CRIMINAL PETITION No.12176 OF 2024
BETWEEN:
SRI VINAY RAJASHEKHARAPPA KULKARNI
AGED ABOUT 54 YEARS
S/O LATE RAJASHEKHARAPPA KULKARNI
RESIDING AT BARAKOTRI
SHIVAGIRI, DHARWAD
KARNATAKA - 580 007.
... PETITIONER
(BY SRI C.V.NAGESH, SR.ADVOCATE A/W
SRI GAURAV N., ADVOCATE)
AND:
1 . CENTRAL BUREAU OF INVESTIGATION
ANTI-CORRUPTION BRANCH,
NO.36, BELLARI ROAD,
2
GANGANAGAR,
BENGALURU - 560 032.
2 . SMT. MALLAVVA
AGED ABOUT 33 YEARS,
W/O YOGISH GOUDA GOUDAR,
R/O GOVANAKOPPA, DHARWAD,
KARNATAKA - 580 112.
... RESPONDENTS
(BY SRI P.PRASANNA KUMAR, SPL.PP FOR R-1)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C., PRAYING TO QUASH THE IMPUGNED ORDER DATED
30.10.2024 (ANNEXURE-B) PASSED BY THE LXXXI ADDL.CITY
CIVIL AND SESSIONS JUDGE, BENGALURU (SPL.COURT
EXCLUSIVELY TO DEAL WITH CRIMINAL CASES RELATED TO
ELECTED MP/MLA's IN THE STATE OF KARNATAKA) IN
SPL.C.C.NO.565/2021 FOR THE OFFENCES P/U/S 143, 147, 148,
120B, 302, 201 R/W SECTION 149 OF IPC U/S 25 R/W 3, 5, 8 AND
SEC.29 OF THE ARMS ACT IN SO FAR AS THE PETITIONER IS
CONCERNED.
IN CRIMINAL PETITION No.12188 OF 2024
BETWEEN:
1 . SRI DINESH M.,
S/O LATE MARIYAPPA
AGED ABOUT 48 YEARS
RESIDING AT HOUSE NO.4S IJOOR
VENKATAPPA LAYOUT
BADAVANE, RAMANAGAR TALUK
3
RAMANAGAR - 562 159.
2 . SRI ASHWATH S.,
S/O SHIVANNA GOWDA,
AGED ABOUT 38 YEARS,
RESIDING AT HOUSE NO.66,
1ST MAIN ROAD, D GROUP LAYOUT
NAGARABHAVI,
BENGALURU - 560 078.
3 . SRI SUNIL K.S.,
S/O SHIVANNA,
AGED ABOUT 42 YEARS,
RESIDING AT KALAHALLI,
1ST MAIN ROAD,
NEAR SOMESHWARA GOWDA
SAMMUDAYA BHAWAN,
MANDYA CITY - 571 401.
4 . SRI NAZEER AHAMAD
S/O BASHEER AHAMAD,
AGED ABOUT 33 YEARS,
RESIDING AT 12TH CROSS,
SONNENAHALLI, BASTHI
BENGALURU - 560 078.
5 . SRI SHANAWAZ
S/O SARDHAR,
AGED ABOUT 45 YEARS,
RESIDING AT NO. 1/2,
4TH CROSS, 1ST MAIN ROAD,
AZAD NAGAR,
NEAR CAMBRIDGE SCHOOL,
BENGALURU - 560 026.
6 . SRI NUTAN K.,
S/O K.N.KRISHNAPPA,
AGED ABOUT 39 YEARS
4
RESIDENT OF NO.146, GUBBALALA,
SUBRAHAMANYAPURA POST,
NEAR MANJUNATH FLOUR MILL,
SUBRAHAMANYAPURA,
BENGALURU - 560 061.
7 . SRI HARSHITH C.,
S/O CHINNAGIRI,
AGED ABOUT 34 YEARS,
RESIDING AT NO. 55/1,
JANTA COLONY, SOMWARPET,
KODAGU, KARNATAKA - 571 236.
... PETITIONERS
(BY SRI SANDESH J.CHOUTA, SR.ADVOCATE A/W
SRI SUNIL KUMAR S., ADVOCATE)
AND:
1 . CENTRAL BUREAU OF INVESTIGATION
ANTI CORRUPTION BRANCH,
REPRESENTED BY
SPECIAL PUBLIC PROSECUTOR,
36, BELLARY ROAD, KGH LAYOUT,
GANGANAGAR,
BENGALURU - 560 032.
2 . SMT. MALLAVVA GOUDAR,
W/O. YOGISH GOUDA GOUDAR,
AGED ABOUT 33 YEARS,
RESIDING AT GOVANAKOPPA,
DHARWAD - 580 112.
... RESPONDENTS
(BY SRI P.PRASANNA KUMAR, SPL.PP FOR R-1)
5
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C., PRAYING TO SET ASIDE THE IMPUGNED ORDER DATED
30.10.2024 PASSED BY THE LXXXI ADDL. CITY CIVIL AND
SESSIONS JUDGE, BENGALURU (CCH-82) (SPECIAL COURT
EXCLUSIVELY TO DEAL WITH CRIMINAL CASES RELATED TO
ELECTED MP/MLA's IN THE STATE OF KARNATAKA) IN
SPL.C.C.NO.565/2021 FOR THE OFFENCES P/U/S 143, 147, 148,
120-B, 302, 201 R/W SEC.149 OF IPC 1860 AND U/S.25 R/W SEC.
3, 5, 8, AND SEC.29 OF THE ARMS ACT AND SEC.7, 13(2) R/W
SEC.13(1)(d) OF PC ACT 1988 IN SO FAR AS THE PETITIONERS
ARE CONCERNED.
IN CRIMINAL PETITION No.12479 OF 2024
BETWEEN:
CHANNAKESHAVA B. TINGARIKAR
S/O BASAPPA TINGARIKAR,
AGED ABOUT 46 YEARS,
RESIDING AT BASAVA NILAYA,
3RD MAIN, 3RD CROSS,
K.C.PARK,
HUBBALLI - 580 008.
... PETITIONER
(BY SRI SUDHANVA D.S., ADVOCATE)
6
AND:
1 . CENTRAL BUREAU OF INVESTIGATION
ANTI CORRUPTION BRANCH,
REPRESENTED BY
SPECIAL PUBLIC PROSECUTOR,
36, BELLARY ROAD, KGH LAYOUT,
GANGANAGAR,
BENGALURU - 560 032.
2 . SMT. MALLAVVA GOUDAR
W/O YOGISH GOUDA GOUDAR,
AGED ABOUT 33 YEARS,
RESIDING AT GOVANAKOPPA,
DHARWAD - 580112.
... RESPONDENTS
(BY SRI P.PRASANNA KUMAR, SPL.PP FOR R-1)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C., PRAYING TO QUASH THE IMPUGNED ORDER DATED
30.10.2024 PASSED BY THE LXXXI ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE, BENGALURU (CCH-82)(SPECIAL COURT
RELATED TO MP/MLA's IN THE STATE OF KARNATAKA) IN
SPL.C.C.NO.565/2021 FOR OFFENCES P/U/S 143, 147, 148, 120-B,
302, 201 R/W SEC.149 OF IPC, 1860 AND U/S.25 R/W SEC.3, 5, 8,
AND SECTION 29 OF THE ARMS ACT AND SEC.7, 13(2) R/W
SEC.13(1)(d) OF THE PC ACT 1988.
7
IN CRIMINAL PETITION No.12492 OF 2024
BETWEEN:
SHRI CHANDRASHEKHAR INDI @
CHANDU MAMA
S/O SHARNABASSAPPA INDI
AGED ABOUT 62 YEARS
RESIDENT OF NO.27,
SHANKESHWAR VILLA,
II CROSS, ATHANI ROAD,
VIJAYPURA - 586 101.
... PETITIONER
(BY SRI KIRAN S.JAVALI, SR.ADVOCATE A/W
SRI VIPIN KUMAR JAIN, ADVOCATE)
AND:
1 . CENTRAL BUREAU OF INVESTIGATION
ANTI-CORRUPTION BRANCH,
REPRESENTED BY
SPECIAL PUBLIC PROSECUTOR,
36, BELLARY ROAD, KGH LAYOUT,
GANGANAGAR,
BENGALURU - 560 032.
2 . SMT. MALLAVVA GOUDAR
W/O. YOGISH GOUDA GOUDAR,
AGED ABOUT 33 YEARS,
RESIDING AT GOVANAKOPPA,
DHARWAD - 580 112.
... RESPONDENTS
(BY SRI P.PRASANNA KUMAR, SPL.PP FOR R-1)
8
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C., PRAYING TO SET ASIDE THE ORDER DTD 30.10.2024
PRODUCED AS ANNEXURE-A PASSED BY THE LXXXI ADDITIONAL
CITY CIVIL AND SESSIONS JUDGE, BENGALURU (CCH-82)
(SPECIAL COURT EXCLUSIVELY TO DEAL WITH CRIMINAL CASES
RELATED TO ELECTED MP/MLA's IN THE STATE OF KARNATAKA) IN
SPL.CC.NO.565/2021, FOR OFFENCES P/U/S 143, 147, 148,
120(B), 302, 201 R/W SECTION 149 OF IPC, 1860, AND U/S 25
R/W SEC.3, 5, 8 AND SECTION 29 OF THE ARMS ACT IN SO FAR AS
THE PETITIONER IS CONCERNED.
THESE CRIMINAL PETITIONS HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 25.11.2024, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:-
CORAM: THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CAV ORDER
Batch of these petitions call in question a solitary order dated
30-10-2024, passed by the LXXXI Additional City Civil and Sessions
Judge, Bengaluru in Special C.C.No.565 of 2021 whereby the
concerned Court grants pardon to accused No.1/Basavaraj
9
Shivappa Muttagi and considers him as an approver under Section
306 of the Cr.P.C.
2. Petitioner in Criminal Petition No.12176 of 2024 is accused
No.15; petitioners in Criminal Petition No. 12188 of 2024 are
accused Nos. 8 to 14; petitioner in Criminal Petition No.12492 of
2024 is accused No.16 and petitioner in Criminal Petition No.12479
of 2014 is accused No.19. Therefore, accused Nos. 8 to 16 and 19
in all are before this court in these petitions. Since these petitions
call in question a solitary order, they are taken up together and
considered by this common order.
3. For the sake of convenience, the pleadings and contentions
in Criminal Petition No.12176 of 2024, which are common in all the
petitions, are noticed.
4. Adumbrated in brief, the factual background, as projected
by the petitioner/s are as follows:-
The history of the case dates back to 15-06-2016 on which
day a complaint comes to be registered by one Smt. Mallavva
10
Goudar alleging offence punishable under Section 302 of the IPC on
the murder of her husband Yogesh Goudar, who was a member of
Zilla Panchayat, Dharwad, against unknown persons. The complaint
was registered before the Sub-Urban Police Station, Dharwad. The
Police conduct investigation and file a charge sheet against 6
persons on 09-09-2016. The concerned Court took cognizance of
the offence against those 6 accused for offences punishable under
Sections 143, 147, 148, 120B, 302, 201 r/w Section 149 of the IPC
and committed the case to the Court of Sessions. The Court of
Sessions, in terms of its order dated 14-09-2017 registers the case
as S.C.No.50 of 2017 and frames charges against accused Nos. 1 to
6. The trial continued for 2 years between 2017 and 2019, during
which 63 witnesses were examined.
5. The mother and brother of the deceased prefer writ
petitions before this Court in Writ Petition Nos.58183-58184 of
2017 seeking further investigation from the hands of the Central
Bureau of Investigation ('CBI'). The said writ petitions come to be
dismissed on 01-03-2019. This becomes final, as the Apex Court in
a challenge to the said order also dismissed the petitions. During
11
the pendency of trial, an application comes to be filed by the
brother of the deceased under Section 319 of the Cr.P.C. to array
additional accused into the web of trial. This also comes to be
dismissed. In the meanwhile, Government of Karnataka, in terms of
its order dated 06-09-2019 accords sanction for conduct of further
investigation at the hands of the CBI in respect of the crime in
Crime No.135 of 2016. It is here the CBI enters the scene. The CBI
on 24-09-2019 registers a fresh FIR in RC
17(S)/2019/CBI/ACB/BLR against accused Nos. 1 to 6 and other
unknown persons for the offences punishable under Sections 143,
147, 148, 120B, 302, 201 r/w Section 149 of the IPC. Accused No.1
prefers writ petition before this Court in Writ Petition No.51012 of
2019 seeking quashment of order dated 06-09-2019 entrusting the
matter to the CBI. This Court dismissed the petition in terms of its
order dated 19-11-2019. Then begins complete investigation by the
CBI.
6. First supplemental charge sheet was filed arraigning 14
accused in all, as against 6 that were arraigned earlier. A second
supplemental charge sheet was filed arraigning 3 more accused on
12
30-01-2021. It is here the then Minister in-charge of Dharwad
District comes into the web of trial as accused No.15. Investigation
did not stop. A third supplemental charge sheet was filed by the CBI
arraigning 4 more accused as accused Nos. 18 to 21. In all, the trial
now is against 21 accused. The Special Court takes cognizance of
all the supplemental charge sheets mentioned hereinabove. The
issue in the lis, at this juncture, does not concern the merit of the
matter before the concerned Court.
7. In the proceedings, accused No.1 files an application under
Section 306 of the Cr.P.C., seeking pardon and transposing him as
a witness, by considering him as an approver in the case. On the
application, the Special Court directs the learned Magistrate to
record the statement of accused No.1 who had filed the application
to turn himself as an approver as obtaining under Section 164 of
the Cr.P.C. On receipt of such statement, the concerned Court
forms that as the foundation of the order and grants pardon in
terms of the order impugned. Calling in question the said order,
these petitions are preferred by the afore-noted accused.
13
8. Heard Sri C.V.Nagesh, learned senior counsel appearing for
the petitioner in Criminal Petition No.12176 of 2024; Sri Sandesh J
Chouta, learned senior counsel appearing for the petitioners in
Criminal Petition No.12188 of 2024; Sri Sudhanva D S, learned
counsel appearing for petitioner in Criminal Petition No.12479 of
2024; Sri Kiran S. Javali, learned senior counsel appearing for
petitioner in Criminal Petition No.12492 of 2024 and Sri P.Prasanna
Kumar, learned Special Public Prosecutor appearing for the
respondent/Central Bureau of Investigation.
9. The learned senior counsel Sri C.V.Nagesh has
spearheaded the submissions on behalf of accused No.15 and
others have followed suit. The learned senior counsel would
vehemently contend that the concerned Court had no jurisdiction to
direct the learned Magistrate to record the statement of the
applicant under section 164 of Cr.P.C., on an application seeking
pardon under Section 306 of the Cr.P.C. It is his submission that
once the trial commences, there is no jurisdiction of recording a
confession statement under Section 164 of the Cr.P.C. The statute
does not permit it.
14
9.1. He would contend that a similar application for pardon
was preferred by the very same accused in the year 2023 and that
comes to be rejected by a detailed order of the previous Presiding
Officer of the said Court. The present order does not even make a
reference to the said order and an order granting pardon/approval
under Section 306 of the Cr.P.C., is passed solely basing the order
on impermissible and illegal Section 164 Cr.P.C. statement recorded
by the learned Magistrate. It is his submission that it was open to
the concerned Court to consider the application on its merits
independently, at which point in time the earlier order would cause
an impediment. Therefore, the concerned Court has sought to take
the impugned route of recording statement under Section 164 of
the Cr.P.C., and then pass the order on the said statement. In all,
the learned senior counsel would seek quashment of the order
impugned.
10. The learned senior counsel Sri Sandesh J Chouta
appearing for the petitioners in Criminal Petition No.12188 of 2024,
Sri Sudhanva D S in Criminal Petition No.12479 of 2024 and
Sri Kiran S. Javali, learned senior counsel appearing for the
15
petitioner in Criminal Petition No.12492 of 2024 would toe the lines
of the learned senior counsel Sri C.V. Nagesh.
11. Per contra, the learned Special Public Prosecutor
Sri P. Prasanna Kumar representing the respondent-CBI would
vehemently refute the submissions contending that the petitioners,
on one ground or the other, are repeatedly knocking at the doors of
this Court only to delay the proceedings before the concerned
Court. He would take this Court through the statement of objections
to contend that this Court should eschew the statement under
Section 164 of the Cr.P.C., consider the order impugned only on the
strength of the application so preferred and affirm the order of
pardon.
11.1. The learned Special Public Prosecutor would submit that
the objections/report filed by the CBI to the application seeking
grant of pardon did contain a communication from accused No.1 to
the Investigating Officer initially, but when accused No.1 who has
now sought pardon for the second time, in detail he submits as to
what he is going to depose in favour of the prosecution which later
16
forms part of the additional objections and the contents of the
additional statement and forms a part of the order impugned. In
effect, he would submit that Section 164 Cr.P.C. statement of
accused No.1 is on record or not is immaterial, as the contents of
the letter and Section 164 statement are the same. Merely because
the Court has referred to Section 164 Cr.P.C. statement, it would
not mean that accused No.1 cannot be granted pardon or the order
granting pardon suffers from any illegality.
12. The learned senior counsel Sri Sandesh J Chouta would
join issue to contend that, if this be the statement of the learned
counsel for the CBI, the order refusing to grant pardon earlier has
attained finality. There can be a second application seeking pardon
only on fresh and changed circumstances. There is no changed
circumstances in the case at hand and, therefore, pardon should
not be granted. He would contend that the concept of res judicata is
applicable to criminal cases as well. He would further elaborate in
contending that the issues of estoppel and constructive res judicata
are also applicable to criminal cases, more so, in the present case.
The procedure for grant of pardon is to treat the accused as an
17
approver at the outset and then record his statement during his
evidence. Grant of pardon to an applicant in a case where there is
already a committal can only be under Section 307 of the Cr.P.C.,
and not under Section 306 of the Cr.P.C. The learned senior
counsel has relied on plethora of judgments to buttress his
submissions all of which would bear consideration qua their
relevance in the course of the order.
13. The learned senior counsel Sri C.V.Nagesh would take
serious objections to paragraphs 18 and 19 of the statement of
objections in contending that delay is not caused by these
petitioners repeatedly approaching this Court, but by the acts of the
prosecution itself and this is clearly indicated in the order passed by
the concerned Court from time to time.
14. I have given my anxious consideration to the submissions
made by the respective learned senior counsel, the learned Special
Public Prosecutor for the CBI and have perused the material on
record.
18
15. The afore-narrated facts are not in dispute. What has
driven the petitioners to this Court is the order of the concerned
Court, by which accused No.1 is now transposed as a witness by
granting him the status of an approver under Section 306 of the
Cr.P.C. In furtherance of the aforesaid submissions, the following
issues would arise for my consideration:
(i) Whether a second application seeking pardon
under Section 306 of the Cr.P.C., is
maintainable?
(ii) Whether recording of Section 164 Cr.P.C.
statement, prior to grant of pardon, would
vitiate the order granting pardon under Section
306 of the CrPC?
(iii) What should be the procedure for grant of
pardon under Section 306 of the Cr.P.C.?
(iv) Whether the co-accused have a right to
question the order granting pardon?
19
Issue No.1:
Whether a second application seeking pardon under
Section 306 of the Cr.P.C., is maintainable?
16. Since the issue revolves round Section 306 of the Cr.P.C.,
I deem it appropriate to notice the said provision. It reads as
follows:-
"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 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
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 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.
(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
Amendment Act, 1952 (46 of 1952);
(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-
section (1) shall record--
20
(a) his reasons for so doing;
(b) whether the tender was or was not accepted
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.
(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) shall, unless he is already on bail, be
detained in custody until the termination of
the trial.
(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,--
(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;
(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;
(b) in any other case, make over the case to the Chief
Judicial Magistrate who shall try the case himself."
(Emphasis supplied)
21
As observed hereinabove, the issue in the case at hand is not with
regard to merit of the matter before the concerned Court. It is the
order dated 30-10-2024 passed by the concerned Court that has
driven all these petitioners to this Court. The order is allowing the
application filed by accused No.1 under Section 306 of the Cr.P.C.,
to turn him as an approver. To consider the first issue, it is
necessary to travel a little back in the journey of trial before the
concerned Court, i.e., in Special C.C.No.565 of 2021. An identical
application was preferred by accused No.1 on 13-03-2023, the first
in line, seeking himself to become an approver, by grant of pardon
under Section 306 of the Cr.P.C. The application reads as follows:
"APPLICATION UNDER SECTION 306 OF THE CODE
OF CRIMINAL PROCEDURE, 1973.
Herein, the accused No.1 submits as under:-
That, in the top noted case accused No.1
Basavaraj S. Muttagi seeking permission for
approver to tender evidence, as accused No.1 is
ready to give tender of pardon in support of
prosecution and in this regard said accused No.1 is
also ready to give Section 164 of Cr.P.C statement
as a confession. Hence, Hon'ble Court be pleased to
kindly accept a tender of pardon of accused No.1
Basavaraj S. Muttagi and in the support of this
application accused No.1 Basavaraj S.Muttagi is
filing affidavit as same is made voluntarily without
any threat or any influence.
22
Therefore, necessary order may be passed in the
interest of justice and equity.
Place: Bengaluru Sd/-
Date: 13-03-2023 Advocate for accused No.1.
Sd/-
Accused No.1"
(Emphasis added)
To the said application, the respondent/CBI has filed its
objections/report. The objections filed by the CBI reads as follows:
"IO REPORT/OBJECTION FILED AGAINST APPLICATION
FILED U/S 306 OF CR.P.C.
The respondent humbly submits as under:-
The present application has been filed by
petitioner/Accused No.1 seeking tender of pardon under
Section 306 of Code for offences punishable under Section U/s
120B, 143, 147, 148 r/w 149, 302 of IPC & u/s 25 r/w Section
3, 5 and 8 of Arms and Section 29 of Arms Act is devoid of
merits and hence it is objected.
2. it is submitted that the petitioner has submitted an
application seeking tender of pardon in support of prosecution
but in the instant application, nothing is mentioned is indicated
regarding the role played by the applicant whether as principal
or abettor in the commission of crime. On the face of the
application prosecution could not conclude that he has made a
full and true disclosure of the whole of the circumstances
within his knowledge relating to the offence and to every other
person concerned, whether as principal or abettor, in the
commission thereof.
3. It is humbly submitted that on perusing the
application CBI could not able to ascertain on disclosure
23
of which facts the petitioner is going to support the
prosecution case. It is further submitted, that the
affidavit attached with the application also is devoid of
merits. It is pertinent to mention that purpose of
Section 307 CrPC is to obtain the evidence of any person
supposed to have been directly or indirectly concerned
in or privy to an offence "during investigation or enquiry
or trial" and the same could not be proved by the
available evidence by the prosecution.
4. In this regard, it is respectfully submitted that this
Hon'ble Court may be pleased to direct the petitioner to record
his confession statement U/s 164(1) CrPC and after perusing
the recorded confession statement of the petitioner,
prosecution will be in the position to take appropriate decision.
PRAYER
In view of the facts discussed above, it is, humbly
prayed that this Hon'ble Court may be pleased to direct
the petitioner to record his confessional statement U/s
164(1) of Cr.PC and liberty may be granted to
prosecution to analyze the recorded statement of the
petitioner before giving any opinion on the submission
made u/s 306 CrPC in the interest of justice and thus
render justice.
Dated this 30th cay of March, 2023."
(Emphasis added)
On the said application, the concerned Court rejects the application
on 29-04-2023. Quoting the order assumes certain significance.
The reasons rendered by the concerned Court to reject the
application of accused No.1 who sought pardon are as follows:
24
".... .... ....
7. Point No.1: It is pertinent to note that Dharwad
Sub-Urban Police have registered a criminal case in
Cr.No.135/2016 for the offences punishable under Sec. 143,
147, 148, 120B, 302 and 201 r/w Sec. 149 of IPC on
15.06.2016 at 9.30 a.m. on the first information lodged by
Smt. Mallavva Goudar W/o deceased Yogesh Goudar alleging
that Yogesh Goudar was shot dead on 15.06.2016 between
7.37 a.m and 7.38 a.m, against unknown accused persons.
The Dharwad Sub-Urban Police took up investigation on the
basis of the first information lodged by Smt. Mallavva Goudar
and in the course of investigation, the police have arrested
accused No.1 to 5 on 17.06.2016 at 6.30 a.m. and accused
No.6 was arrested on 20.06.2016 and after completion of
investigation formalities, charge sheet was laid by Dharwad
Sub-Urban Police on 09.09.2016 alleging the offences
punishable under Sec.143, 147, 148, 120B, 302 and 201 r/w
Sec.149 of IPC.
8. After filing of charge sheet by Dharwad Sub-Urban
Police station, criminal case was registered in CC
No.964/2016 on the file of learned JMFC Court, Dharwad.
Thereafter, the case was committed to Prl. District and
Sessions Judge, Dharwad and the same was numbered as SC
No.50/2017 and the case was made over to IV Addl. District
& Sessions Court, Dharwad for trial. In the mean while, Smt.
Thungamma, the mother of the deceased and Gurunath
Goudar, the brother of the deceased have preferred Writ
Petition in W.P. No.58183-184/2017 before Hon'ble High
Court of Karnataka, Dharwad Bench seeking direction for
further investigation in respect of the information registered
as Cr. No. 135/2016 dated 15.06.2016 and to transfer the
case to CBI for conducting further investigation.
9. After committal, IV Addl. District and Sessions
Judge, Dharwad, out of 63 witnesses, examined 57 witnesses
and the statements of the accused under Sec.313 of Cr.P.C.,
had been recorded. The writ petition filed by Smt.
Thungamma, the mother of the deceased and Gurunath
Goudar, the brother of the deceased came to be dismissed
and prayer for handing over the investigation to the CBI
25
came to be rejected. However, liberty was granted to invoke
power of Court under Sec.319 of Cr.P.C., and said Smt.
Thungamma and Gurunath Goudar had challenged the said
order dated 01.03.2019 passed by the Hon'ble High Court of
Karnataka, Dharwad Bench in W.P.No.58183-184/2017
before the Hon'ble Supreme Court of India in SLP (Crl.)
5760-61/2019. Said SLP petition came to be dismissed by
the Hon'ble Apex Court. Thereafter, the brother of the
deceased i.e., Gurunath Goudar filed an application under
U/s.319 of Cr.P.C., seeking to add Vinay Kulkarni and
Manjunath Basannavar as accused in the SC 50/2017, which
also came to be dismissed by the IV Addl. District and
Sessions Judge, Dharwad. Thereafter, the Government of
Karnataka sought opinion from the Advocate General of
Karnataka with regard to entrusting of the case to CBI and
by proceedings dated 06.09.2019, the Government of
Karnataka was pleased to direct the concerned to handover
the records to CBI by according sanction to CBI under Sec.6
of Delhi Police Establishment Act for further investigation.
After receiving notification under Sec.5 from the DoPT, CBI
filed a memo before the Prl. Civil Judge (Jr.Dn) and JMFC
Court, Dharwad under Sec.173(8) of Cr.P.C. and another
memo before the IV Addl. District & Sessions Judge,
Dharwad under Sec.173(8) of Cr.P.C., intimating the Court
about the CBI taking up further investigation and after
receipt of the order, the CBI re-registered the case in FIR
vide RC-17(S)/2019, CBI, ACB, Bengaluru on 24.09.2019 for
offence under Sec.143, 147, 148, 120(B), 302 & 201 r/w 149
of IPC. During the course of investigation, the CBI arrested
accused No.7 to 14 and in addition to the accused No.1 to 6
already charge sheeted by Sub-Urban Police Station
Dharwad, the Central Bureau of Investigation, Anti
Corruption Branch, Bengaluru, filed charge sheet and
additional charge sheet in the above case against accused
No.1 to 21 for the offences punishable under Sec. 143, 147,
148, 120-B, 302, 201 R/w Sec.149 of IPC and Sec.3, 5, 8, 25
& 29 of Arms Act and Sec.7 and Sec. 13(2) r/w Sec.13(1)(d)
of the Prevention of Corruption Act, 1988.
..... .... ....
14. Sec.306 of Cr.P.C. forms a clear exception to
the principle that 'no inducement shall be offered to a
26
person to disclose what he knows'. The object of
Sec.306 of Cr.P.C., is to allow pardon in cases where a
grave offence is alleged to have been committed by
several persons so that with the aid of the evidence of
the person pardoned, the offence could be brought
home to the rest. The principles behind tendering of
pardon to an accomplice is to unravel the truth in a
grave offence, so that the guilt of the other accused
persons concerned in commission of crime could be
brought home. Sec.306(1) empowers the Chief Judicial
Magistrate, Metropolitan Magistrate or the Magistrate
of First Class, to tender pardon to any person
supposed to have been directly or indirectly concerned
in or privy to an offence to which this Section applies,
subject to the person 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 in the commission thereof.
15. Sec.307 of CR.P.C., empowers the Court, to
which the offence is committed under Sec. 306(5)(ii),
during the course of trial, tender pardon to any
person, supposed to have been directly or indirectly
concerned in, or privy to, the offence being tried, so as
to obtain the evidence of such person.
.... .... ....
17. I have gone through Sec. 306, 307 and 308 of
Cr.P.C. There is no bar either under Sec.306 and 307 of
Cr.P.C., to tender pardon to an accomplice and court can
tender pardon at any stage of the investigation or inquiry
into, or the trial of the offence. Now in this case, charge is
not yet framed. At this stage, the accused No.1 has filed the
application under Sec.306 of Cr.P.C. seeking tender of
pardon from this court. In the application filed by the
accused No.1, he stated that he is ready to give tender of
pardon in support of prosecution and in this regard, he is
ready to give statement under Sec. 164 of Cr.P.C., as a
confession and prayed for granting pardon. In the affidavit,
he has stated that the contents of the application are
voluntarily made and no person influenced and threatened
him to file this application. There are no specific grounds
urged, under which he seeks pardon. The accused has not
27
stated his role in the case. He has not explained the role of
other accused. He has not stated why he is seeking pardon
and how his evidence helps the Court to bring home the guilt
of the accused. The dominant object is that the offenders of
the heinous and grave offences do not go unpunished. The
Legislature in its wisdom considered it necessary to introduce
this section and confine its operation to cases mentioned in
Section 306 of the Code. The object of Section 306 therefore
is to allow pardon in cases where heinous offence is alleged
to have been committed by several persons so that with the
aid of the evidence of the person granted pardon, the offence
may be brought home to the rest. The basis of the tender of
pardon is not the extent of the culpability of the person to
whom pardon is granted, but the principle is to prevent the
escape of the offenders from punishment in heinous offences
for lack of evidence.
18. The prosecution has filed objection and
contended that the CBI could not able to ascertain on
disclosure of which facts the petitioner is going to
support the prosecution case and the affidavit
attached with the application is also devoid of merits.
Further, it is contended that this Court may be pleased to
direct the petitioner to record his confession statement under
Sec.164(1) of Cr.P.C., and after perusing the recorded
confession statement of the petitioner, the prosecution will
be in a position to take appropriate decision. This Court
cannot direct the accused to give confession statement under
Sec. 164(1) of Cr.P.C., which is self-incriminating. However
to grant pardon to one of the prime accused in the case, this
Court has to satisfy that this is the accused who is going to
make full and true disclosure of the whole of the
circumstances within his knowledge relating to the offence
and to every other person concerned, whether as principal or
abettor, in the commission thereof.
19. When the accused is not ready to disclose
either his role or the role of the other accused, how
this Court can expect from the present accused that he
would make full and true disclosure of the whole of
the circumstances within his knowledge relating to the
offence. This court is not aware as to how much
information is known to the present accused regarding
28
the commission of the alleged offence and whether he
had participated in the larger conspiracy to commit
murder of Yogesh Goudar and if so, who is the key
conspirator to commit the offence of murder of Yogesh
Goudar. I do not think that the tender of pardon will
be in the interest of successful prosecution of the
other offenders, whose conviction is not easy without
the approver's testimony, it will indubitably agree to
the tendering of pardon. Therefore, I am not satisfied
that a tender may be granted to the accused No.1
Basavaraj Shivappa Muttagi on the ground that he
would make full and true disclosure of the whole of
the circumstances within his knowledge relating to the
offence. He has shirked his responsibility to disclose
his role and role of other accused in the commission of
offences while filing this application before the Court
and therefore, this Court has no confidence with him
that he would make a full and true disclosure of the
whole of the circumstances relating to the offence.
Therefore, I answer point No.1 in the Negative.
20. Point No.2: In view of my findings on point No.1,
I proceed to pass the following:
ORDER
The application filed by accused No.1
Shri Basavaraj Shivappa Muttagi under Sec.
306 of the Code of Criminal Procedure is
hereby dismissed.”
(Emphasis added)
By a detailed order, the Special Court rejects the application
seeking pardon on the score that there is no specific ground urged
as to why he is seeking pardon and what the accused is going to
depose after granting pardon. The Court does not agree with the
29
application and expresses that the Court has no confidence in
accused No.1 that he would make full and true disclosure of whole
circumstance.
17. Now comes the subject application, second in line,
seeking pardon. The second application is in slight detail. It is
preferred on 19-10-2024. It reads as follows:
“APPLICATION UNDER SECTION 306 OF THE CODE OF
CRIMINAL PROCEDURE CODE.
The accused No.1 submits as follows:-
1. The Accused No.1 was arrested by the State Police
in Crime No.135/2016 by the Dharwad Sub-Urban Police.
Thereafter, the Police have filed the charge sheet and the
trial was in progress. At that stage, the matter was referred
to CBI. The accused was in custody for almost eleven
months. Thereafter, several developments have taken
place during investigation and the subsequent trial.
2. The applicant is facing threat for his life from
various corner including the accused No.15 and 16 in
this case. The threat faced by this Accused is
constant. In this case from the commission of crime
till now the threat perception persists.
3. The Accused submits that after introspection of
the entire event, the accused decided that he should reveal
the true facts before this Hon’ble Court to save the ends of
justice. On the earlier occasion this Accused has filed an
application seeking pardon, however, the same was not
appreciated by the Hon’ble Court as confession statement
under S.164(1) Cr.P.C. was not available before this
Hon’ble Court for consideration.
30
4. The Accused submits that he has to disclose
the truth before this Hon’ble Court for the sake of
justice and if this Hon’ble Court pleased with the
disclosure of the fact, it may take appropriate
decision to pardon or otherwise. The accused is
ready and willing to depose before the Magistrate
disclosing his role and the role of the other accused
in the commission of the crime. The accused may be
provided proper security from any Central Security
Agencies as he along with his family is facing life
threat continuously. The accused is willing to depose
true facts before the Magistrate and later depose
before this Hon’ble Court. It is humbly prayed that if
this Hon’ble Court permits or grants or allow to give
the accused an opportunity to reveal the true facts of
the crime, the same may be helpful to reach the
justice.
5. The Accused No.1 prays that this Hon’ble
Court may be pleased to allow the accused to
disclose the true facts under Section 164(1) Cr.P.C to
attain the justice.
Wherefore, the accused No.1 humbly submits that
this Hon’ble Court may be pleased to tender pardon to the
accused and treat him as prosecution witness in the
interest of justice.
Bangalore. Sd/-
Date: 19-10-2024 Advocate for Accused No.1"
(Emphasis added)
The CBI again files its report/objections to the application. The
objections read as follows:
“IO Report/Objection filed against application U/s 306 of
Code of Criminal Procedure (New 309 of BNSS 2023)
31This may please your honour, that the present application has
been filed by the petitioner/Accused No.1 seeking tender of
pardon U/s 306 of CrPC for offences punishable U/s 120B, 143,
147, 148 r/w 149, 302 of IPC and U/s 120B, 143, 147, 148 r/w
Section 3, 5 and 8 of Arms Act and Section 29 of Arms Act in of
not speaking about the entire criminal act of the accused and
hence objection.
The petitioner has submitted an application seeking tender of
pardon in support of prosecution but in the terms of the
application, nothing is mentioned or indicated regarding the role
played by the petitioner whether as principal or abettor in the
commission of the crime. On the face of the application, the
prosecution could not conclude that he has made a full and true
disclosure of the whole of the circumstances within his
knowledge relating to the offence and to every other person
concerned, whether as principal or abettor, in the commission
thereof.
It is humbly submitted that on persisting application, CBI
could not be able to ascertain of which facts the
petitioner is going to support the prosecution version. It
is further submitted, that the affidavit attached with the
application is also devoid of merit. It is pertinent to
mention that purpose of Section 307 crpc is to obtain the
evidence of any person supposed to have been directly or
indirectly concerned in a privy to an offence “during the
investigation or enquiry or trial” and the same could not
be proved by the available evidence by the prosecution.
In this regard, it is respectfully submitted that this
Hon’ble Court may be pleased to direct the petitioner to
record his confession statement U/s 164(1) of CrPC and
after perusing the recorded confession statement of the
petitioner, prosecution will be in the position to take
appropriate decision. I am also enclosing a letter of the
petitioner addressed to IO of the instant case.
PRAYER
In view of the facts discussed above, it is humbly prayed that
this Hon’ble Court may be pleased to direct the petitioner to
32record his confession statement U/s 164(1) of CrPC and liberty
may be granted to prosecution to analyze the recorded
statement before giving a consent to tender pardon made U/s
306 CrPC in the interest of justice and thus render justice.”
(Emphasis added)
What the Court would do on the application and the objections is,
refer the matter to the learned Magistrate to record the statement
of the accused under Section 164 of the Cr.P.C. The order reads as
follows:
“Case advanced and taken on board.
The learned counsel for accused No.1 has filed
application under Sec.306 of Cr.P.C., requesting the
court to tender him pardon and treat him as
prosecution witness.
In the application it has been narrated by the
accused that he is ready and willing to depose before the
Magistrate with respect to his role and the role played by
other accused persons in commission of crime.
Further the accused has requested to provide
proper security from the Central Security agencies as he
along with his family members are facing threat on their
life continuously.
Further he has under taken to depose true
facts before the Magistrate and also to depose
about the incident truly before this court.
He has also requested the court to permit him
to disclose the true facts by getting his statement
recorded under Sec.164(1) of Cr.P.C.
33
On enquiry being made by the court the accused
No.1 Basavaraj Muthagi who is before the court has
submitted that he has appeared before the court
voluntarily requesting him to tender pardon and there is
no pressure exerted on him in this regard to tender any
statement.
The learned Public Prosecutor is present who is
assisting the learned SPP and report is filed through the
Investigating Officer wherein it has been stated that since
the accused No.1 Basavaraj Muthagi has not narrated
about any of the facts which he would depose under oath
in the event of granting of pardon, the I.O. has contended
that it would not be permissible at this juncture to
consider the veracity of his claim.
I have carefully appreciated the rival contentions
urged by parties.
The accused No.1 has moved an application
under Sec.306 of Cr.P.C., seeking to grant pardon to
him. For the purpose of granting pardon the
necessary provisions under Sec.306 if required to
be complied by the court.
It is also relevant to note that the court should be
satisfied prior to tendering pardon that the person is
disclosing full and true disclosure of the whole of
circumstances within his knowledge related to the
offences and to every other person.
It is also relevant to note at the time of tendering
pardon the court is required to assign reasons for doing
so and also the court is required to assign reasons for not
accepting the same in the event of rejecting the
application.
In the instant case the trial as already commenced
and the court has started the record the evidence of
witnesses and already 3 witnesses have been examined
as PW-1 to PW-3.
In order to accept tender of pardon the court is
required to appreciate the materials available on record.
34
The accused No.1 who is present before the
court has submitted that he is willing to get his
statement recorded under Sec.164(1) of Cr.P.C.,Only by looking into the said statement it
would be possible for the court to arrive at a just
conclusion. Even otherwise the main grievance of
the prosecution is that they are unable to ascertain
what would be his statement/disclosures which
was within his exclusive knowledge.
Under the circumstances keeping open the
application filed by accused No. 1 it would be
appropriate to get his statement recorded under
Sec. 164(1) of Cr.P.C. by learned JMFC Court.
Accordingly, the learned 17th ACMM,
Bengaluru is hereby requested to get the statement
of accused No.1 Basavaraj Muthagi recorded. The
court has requested the learned 17th ACMM Court to
get the statement recorded since court is officiating
in the same premises and in the same floor where
this court is situated and hence the apprehension of
the accused No.1 would be mitigated to major
extent.
A request is placed before the learned JMFC
Court to get his statement recorded at the earliest
since he has expressed threat on his life and if
possible during the course of the day itself by
looking into their work allotment.
The office shall communicate this order forthwith to
the learned JMFC Court with the aforesaid request.
Needless to mention the statement recorded shall
be sent to this court by the learned 17th ACMM Court.
Call on 21.10.2024.
Sd/- 19/10/2020
(Santhosh Gajanan Bhal)
35LXXXI ACC & SJ, Bengalur (CCH-82)
(Special Court exclusively to deal with
criminal cases related to elected
former and sitting MPs/MLAs in the
State of Karnataka)”
(Emphasis added)
… … …
“Case called out.
Learned counsel for accused NO.1 is present and
has filed application under Sec.2(1) of Witness Protection
Scheme requesting the court to provide protection to
accused No.1 and his family wherein he has filed
application seeking permission to treat him as approver in
the above case.
The learned counsel has argued that necessary
protection is required to be given to the present accused
as contemplated under the scheme and he had relied
upon the judgment of the Hon’ble High Court reported in
W.P. No. 15032/2019 dated 20.09.2021.
Heard and perused the materials.
For orders, call on 22.10.2024.
Sd/- 21/10/2024
(Santhosh Gajanan Bhat)
LXXXI ACC & SJ, Bengaluru (CCH-82)
(Special Court exclusively to deal with
criminal cases related to elected former and
sitting MPs/MLAs in the State of Karnataka)”
... ... ...
"Case called out.
The learned 17th ACMM Court had furnished
the statement of accused No.1 Mr. Basavaraj
36Muthagi recorded under Sec. 164(1) of Cr.P.C., in a
sealed cover.
The sealed cover is opened now in the open court
in the presence of both parties.
The complainant CBI authorities through the Public
Prosecutor had filed their response stating that the
application under Sec.306 of Cr.P.C., filed by A-1
Basavaraj Muthagi may be allowed and they have
consented for the same.
The learned counsel for accused No.1 has
submitted application under Sec.2(1) of Witness
Protection Scheme provide him and his family necessary
protection.
The accused No.1 Mr. Basavaraj Muthagi has
sought permission to make submission. Permitted.
He has submitted that on 20.10.2024 accused No.9
Ashwath had telephonically called upon his friends and
other nearby persons and had threatened that he would
ensure that accused No.1 Basavaraj will not appear
before the court. He has also submitted that they have
obtained the mobile number of his wife and other family
members and had threatened his son-in-law.
The accused No.1 is hereby directed to file his
grievances in writing to the investigating officer herein
who shall verify the same and file necessary report.
By considering the grave threat as contented
by accused No.1, pending adjudication of the
application seeking pardon it would be appropriate
to pass order to the CBI authorities to provide him
and his family necessary security till next date of
hearing.
Needless to mention the CBI authorities may
take the assistance of any centralized agency like
CISF CRPF to provide necessary protection to the
witness and his family till next date of hearing.
37
Office to communicate the above order to the
CBI authorities.
For considering the application, call on
26.10.2024.
Sd/- 22/10/2024
(Santhosh Gajanan Bhat)
LXXXI ACC & SJ, Bengaluru (CCH-82)
(Special Court exclusively to deal with
criminal cases related to elected former and
sitting MPs/MLAs in the State of Karnataka)”
(Emphasis added)
… … …
“Case called out.
Accused No.2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13,
14, 15, 16, 18, 19, 20 and 21 are present.
Accused No.1 is absent. EP filed and allowed for the
day.
Learned SPP is present and has submitted that
PW-2 is present before the court and CW-121 has
requested for a short accommodation.
The witness has requested the court to provide him
a short accommodation as he is suffering from back pain
and he is unable to tender his evidence today….”
The learned Magistrate records the statement as directed by the
Special Court. The order sheet maintained for recording statement
of accused No.1 is as follows:
38
“…. …. ….
Case called out before the open court at 05.00
p.m.
Accused No. 1 by name Sri. Basavaraj
Shivappa Muttagi, S/o Shivappa Muttagi, R/at
Kalmeshwara Oni, Managundi, Dharwad is present
along with his Counsel Sri. R. Nagendra Naik.
On enquiry, the accused No. 1 by name
Basavaraj Shivappa Muttagi submits that he has
filed the application before the Hon’ble CCH-82
court and also produced his original Aadhar card
and copy of the same. The original Aadhar card
returned to the accused No. 1.
The procedure before the recording of
statement of accused No. 1 u/s 164 of Cr.P.C is
made since 05.10 p.m to 05.30 p.m and the
procedure separately recorded.
The accused No. 1 submits that, he will make
necessary arrangements for his security till
recording of his statement.
The reflection time given to the accused No. 1
since today 05.30 p.m to 21.10.2024 at 12.30 p.m.
The accused No. 1 is directed to appear before
the court along with his counsel on 21.10.2024 at
12.30 p.m.
Call on 21.10.2024 at 12.30 p.m.
Sd/- 19/10/2014
XVII ACJM
Bengaluru”
(Emphasis added)
… … …
39
“Case called out before the open court on
21.10.2024 at 01.00 p.m.Accused No. 1 by name Basavaraj Shivappa
Muttagi and his counsel Sri. R. Nagendra Naik (Roll
No. KAR/1479/1993) are present before the open
court.
The procedure before the recording of
statement of accused No. 1 u/s 164(1) of Cr.P.C is
conducted since 01.00 p.m to 01.06 p.m and the
procedure separately recorded.
Further the statement of accused No. 1 u/s
164(1) of Cr.P. is recorded since 01.07 p.m. to
03.28 p.m in the presence of the counsel of the
accused No.1.
The statement of the accused No. 1 u/s
164(1) of Cr.P.C and the procedures conducted
before recording the statement of accused No. 1
u/s 164(1) of Cr.P.C is sealed before me.
The office is directed to send sealed cover to the
Hon’ble LXXXI Addl. City Civil & Session Judge, [Special
Court exclusively to deal with criminal cases related to
elected former & sitting MPs/MLAs in the State of
Karnataka (CCH- 82)] Bengaluru.
Copy of the statement of accused No. 1 be handed
over to I.O with a direction that contents of the such
statement should not be disclosed to any person.”
(Emphasis added)
The recording of the statement under Section 164 of the Cr.P.C.
which by itself was illegal, gets its crowning glory of recording the
said statement in the presence of the Advocate representing the
40
accused No.1. If this can be the purport of Section 164 of Cr.P.C.,
it would turn the entire procedure topsy-turvy. After recording of
the statement comes the impugned order. The impugned order,
insofar as it is germane, reads as follows:
“13……….For instance, I have culled out the necessary
materials which are forthcoming in the additional response
which has been filed by the CBI authorities which are as
follows:
The statement of accused No.1 discloses
the motive for commission of murder of
deceased Yogesh Goudar being hatched
by accused No. 15The incident on 23.4.2016 is revealed by
the statement of accused No.1 wherein
several insult and humiliation were hurled
by accused No.15 Vinay Kulkarni at Zilla
Panchayat meeting towards deceased
Yogesh Goudar.
His statement also reveals of the roles of
conspiracy between accused No.1 along
with accused No. 18 Vikas Kalburgi, A3-
Keerthi Kumar Kurahatti, A6-
Mahabaleshwara Hongal, A-2-Vikaram
Bellari and others with respect to the
committing murder of Yogesh Goudar at
the instance of accused No.15 Vinay
Rajashekarappa Kulkarni.
His statement reveals of request being
made by accused No.15 Vinay Kulkarni to
purchase 10 sim cards and 10 basic
mobile sets for the purpose of
communicating with various associates in
the month of April-May, 2016.
41
The sale agreement entered into between
Todkar and Basavaraja Shivappa Muttagi
through Nataraj and Veeresh on
24.5.2016 at the instance of accused
No.15 Vinay Kulkarni establishes that the
motive of the murder of Yogeshgoudar
was to be deviated and projected as
some land dispute between accused No. 1
and deceased Yogesh Goudar instead of
political rivalry between accused No.15
and Yogesh Goudar.
His statement indicates that on
12.6.2016 accused No.1 Basavaraja
Shivappa Muttagi stayed in Ankita Hotel
till the murder was completed and on
13.6.2016 accused No.21 Somashekar
Nyame Gouda communicated with
respect to executing murder of Yogesh
Goudar which is required for establishing
the fact of communication of criminal
conspiracy.
The statement of accused No.1
Basavaraja Shivappa Muttagi indicate of
providing 3 country made pistols in the
month of May 2016 by accused No.15
Vinay Kulkarni and also providing Rs.15
lakhs cash for utilising the same towards
murder of deceased Yogesh Goudar.
The information given to accused No.1
Basavaraja Shivappa Muttagi on
15.6.2016 around 7.30 a.m. after the
murder of Yogesh Goudar with respect to
nature and manner in which the murder
was committed.
His statement disclosing the role of
Vinayak Katagi, Keerthi Kumar, Vikram
Bellary meeting and travelling together in
Chevrolet car in front of the Gym at 7.42
a.m. on 15.6.2016 establishes their role.
42
His statement establishes understanding
between the assailants that they stayed
in different destinations for the purpose
of hiding themselves also establishes
conduct of the accused persons after
committing murder.
The fact disclosed by A1-Basavaraja
Shivappa Muttagi proves the role of
accused persons as to the arrangements
done by them prior to surrendering
accused No.1 to 6 before the State
Investigating Agency in order to
overcome the materials and also to
deviate the investigation process.
The fact disclosed by accused No.1
indicates of recovering of weapons at the
murder place and also it indicates role
played by accused No.19 and 20.
The statement of accused No.1 also
discloses about the fact and role played
by accused No.15 Vinay Rajashekarappa
Kulkarni.
14. When the entire facts is once again carefully
appreciated with the statement of accused No.1 which
is recorded under Sec.164(1) of Cr.P.C, does indicates
that accused No.1 had tendered his statement
revealing entire facts and circumstances of the case.
At this juncture, the prosecution has contended that
his statement is very much essential for the proper
adjudication of the case and also to prove their case
beyond reasonable doubt, since the entire case rests
upon the circumstantial evidence……
15. In the instant case, the court has relied upon the
aforesaid authority which would clearly indicate that at the
time of exercising judicial power in relation to grant of
pardon the court is required to remove any suspicion of
43
consideration which is extraneous in nature. Further I have
also relied upon the judgment of the Hon’ble Apex Court
wherein the procedures for considering the application under
section 306 of Cr.P.C is laid down. Further I have also
bestowed my anxious reaiding to the fact that the present
accused No.1 is seeking pardon when the trial is
commenced…….
16. The statement which has been narrated by
accused No.1 Basavaraja Shivappa Muttagi under
Sec.164 of Cr.P.C., also indicates of the definite role
being played by the accused No.1 in the commission of
offence. It is not that the accused No.1 was not aware
of the facts which would lead to the circumstances
that in the event of disclosing the statement. In fact
the learned Magistrate at the time of recording the
statement itself had warned him of the consequences
which would arise of the situation of his tendering his
statement. Even then he had proceeded to tender his
statement and after giving a specific time for
retraction, then the statement came to be recorded.
17. I have bestowed my anxious reading to the
entire statement, coupled with the materials which are
available on record in the charge sheet. By looking in
to the aforesaid aspects, the contentions urged by the
applicant/accused in his application filed under
Sec.306 of Cr.P.C., seems to be justifiable. Even
otherwise, if the application is allowed and if the
applicant-accused later on retracts from his evidence,
then obviously the court will be having power to
summon him and arraign him as accused at the later
stage of the case. Under the facts and circumstances,
the application filed by accused No. 1 Basavaraja
Shivappa Muttagi under Sec.306 of Cr.P.C., deserves to
be allowed and I answer Point No. 1 in the Affirmative.
18. Point No.2: In view the discussions made herein
above, I proceed to pass the following:
44
ORDER
Application filed by the accused
No. 1 Basavaraja Shivappa Muttagi
under Sec.306 of the Code of Criminal
Procedure is hereby allowed and he is
hereby considered as approver in this
case.”
(Emphasis added)
The aforesaid order passed by the concerned Court is solely on the
basis of statement tendered by accused No.1 under Section 164 of
the Cr.P.C., as directed by the Special Court to the learned
Magistrate to record it. The order of the Special Court is wholly on
the basis of the statement recorded by the learned Magistrate
under Section 164 of the Cr.P.C. The direction, to record such
statement, and the recording of the statement, are all illegal.
Therefore, illegalities galore in the impugned action.
18. Whether the second application was maintainable or
otherwise need not detain this Court for long or delve deep into the
matter. The application under Section 306 of the Cr.P.C. is akin to
seeking enlargement on bail, where a second application would be
maintainable, but only on changed circumstances. The issue bears
consideration by a three Judge Bench of the Apex Court in the case
45of STATE OF U.P. v. KAILASH NATH AGARWAL1, wherein it is
held as follows:
“…. …. ….
15. The decisions referred to above clearly establish
that the powers conferred on the District Magistrate and the
other Magistrates under Section 337 are concurrent and that
a District Magistrate, even after commitment, has power to
tender pardon. The proviso to Section 337(1) makes it dear
that the District Magistrate, in addition to the Magistrates
referred to therein, has power to tender pardon during
inquiry into or trial of the offence. Though the above
decisions had no occasion to consider whether the District
Magistrate has power to tender pardon, when the Magistrate
enquiring into the offence has once refused, we are not able
to find any such restriction placed upon the power of the
District Magistrate by the wording of the section itself. As the
power conferred by sub-section (1) of Section 337 on the
different classes of Magistrate is concurrent and is of the
same character, it follows that the power to tender pardon
can be exercised by everyone of the authorities mentioned
therein subject to the limitations specified in the section
itself. The mere fact that a Magistrate of the First Class
enquiring into the offence has declined to grant pardon, as in
the case before us, does not take away the power or
jurisdiction of the District Magistrate to entertain a further
application for grant of pardon. Though the District
Magistrate has got power to consider a further
application, nevertheless, it is needless to state that
he will have due regard to the views expressed by the
Magistrate for refusing to grant pardon. We must,
however, state that judicial propriety requires that if a
higher authority had declined to tender pardon, a
lower authority should not grant pardon except on
fresh facts which were not and could not have been
before the higher authority when it declined to grant
pardon. Even if pardon has been refused on one
occasion, a further request may be made before the1
(1973) 1 SCC 751
46Magistrate or the District Magistrate. But such a
further request can be entertained and considered
only if fresh or additional facts are placed by the party
concerned.
… … …
17. The conferment of concurrent powers is also to be
seen in Section 498. Under sub-section (1), the High Court
or Court of Session has got power to direct that any person
be admitted to bail or to reduce the bail required by a police
officer or a Magistrate. Even though the Court of Session
may have refused a request in this behalf for grant of bail,
the High Court can be approached for a similar relief. Under
sub-section (2), again power has been given to the High
Court or Court of Session to order the re-arrest of a person
admitted to bail under sub-section (1).”
(Emphasis supplied)
The aforementioned judgment is subsequently followed in several
cases. Therefore, the issue is no longer res integra that a second
application is maintainable, but only on changed circumstances.
Whether there was a changed circumstance or not in the case at
hand, requires to be noticed. As observed hereinabove, the first
application preferred by accused No.1 was absolutely vague. On the
vague application, a detailed order comes to be passed. There was
no changed circumstance that would be in the strict sense of the
term, but the accused No.1 throughout has been making a hue and
cry about threat to his life, the threat according to his application
looms large. This threat if would be continuous or continues in real
47
time, and not imaginary, it becomes a changed circumstance. In
such circumstances only, the second application would be
maintainable before the concerned Court, other than the factual or
actual changed circumstance. The issue is answered accordingly.
Issue No.2:
Whether recording of Section 164 Cr.P.C. statement
prior to grant of pardon would vitiate the order granting
pardon under Section 306 of the Cr.P.C.?
19. Issue No.2 revolves round recording of Section 164
Cr.P.C. statement prior to grant of pardon. I, therefore, deem it
appropriate to notice Section 164 of the Cr.P.C. It reads as follows:
“164. Recording of confessions and
statements.–(1) Any Metropolitan Magistrate or
Judicial Magistrate may, whether or not he has
jurisdiction in the case, record any confession or
statement made to him in the course of an
investigation under this Chapter or under any other
law for the time being in force, or at any time
afterwards before the commencement of the inquiry or
trial:
Provided that any confession or statement made under
this sub-section may also be recorded by audio-video
electronic means in the presence of the advocate of the
person accused of an offence:
48
Provided further that no confession shall be recorded
by a police officer on whom any power of a Magistrate has
been conferred under any law for the time being in force.
(2) The Magistrate shall, before recording any such
confession, explain to the person making it that he is not
bound to make a confession and that, if he does so, it may
be used as evidence against him; and the Magistrate shall
not record any such confession unless, upon questioning the
person making it, he has reason to believe that it is being
made voluntarily.
(3) If at any time before the confession is recorded,
the person appearing before the Magistrate states that he is
not willing to make the confession, the Magistrate shall not
authorise the detention of such person in police custody.
(4) Any such confession shall be recorded in the
manner provided in Section 281 for recording the
examination of an accused person and shall be signed by the
person making the confession; and the Magistrate shall make
a memorandum at the foot of such record to the following
effect:–
“I have explained to (name) that he is not
bound to make a confession and that, if he does
so, any confession he may make may be used as
evidence against him and I believe that this
confession was voluntarily made. It was taken in
my presence and hearing, and was read over to the
person making it and admitted by him to be
correct, and it contains a full and true account of
the statement made by him.
(Signed) A.B.
Magistrate.”
(5) Any statement (other than a confession) made
under sub-section (1) shall be recorded in such manner
hereinafter provided for the recording of evidence as is, in
the opinion of the Magistrate, best fitted to the
circumstances of the case; and the Magistrate shall have
power to administer oath to the person whose statement is
so recorded.
49
(5-A)(a) In cases punishable under Section 354,
Section 354-A, Section 354-B, Section 354-C, Section 354-D,
sub-section (1) or sub-section (2) of
Section 376, Section 376-A, Section 376-AB, Section 376-B,
Section 376-C, Section 376-D, Section 376-DA, Section 376-
DB], Section 376-E or Section 509 of the Indian Penal Code
(45 of 1860), the Judicial Magistrate shall record the
statement of the person against whom such offence has
been committed in the manner prescribed in sub-section (5),
as soon as the commission of the offence is brought to the
notice of the police:
Provided that if the person making the statement is
temporarily or permanently mentally or physically disabled,
the Magistrate shall take the assistance of an interpreter or a
special educator in recording the statement:
Provided further that if the person making the
statement is temporarily or permanently mentally or
physically disabled, the statement made by the person, with
the assistance of an interpreter or a special educator, shall
be video graphed.
(b) A statement recorded under clause (a) of a person,
who is temporarily or permanently mentally or physically
disabled, shall be considered a statement in lieu of
examination-in-chief, as specified in Section 137 of
the Indian Evidence Act, 1872 (1 of 1872) such that the
maker of the statement can be cross-examined on such
statement, without the need for recording the same at the
time of trial.
(6) The Magistrate recording a confession or
statement under this section shall forward it to the
Magistrate by whom the case is to be inquired into or tried.”
Section 164(1) of the Cr.P.C., stops at recording of confession
statement on the date on which the trial commences. This is the
50
mandate of the statute, and it is trite law that if a statute directs
performance of action in a particular manner, it shall be performed
in that manner only.
20. It is apposite to refer to the judgment of the Apex Court
in the case of BABU VERGHESE V. BAR COUNCIL OF KERALA2
wherein the Apex Court holds as follows:
“30. We may point it out that the process for extension
of the term of the Kerala Bar Council was initiated under Rule
6. If Rule 6 is to be applied, it must be shown that all its
requirements were fulfilled.
31. It is the basic principle of law long settled that if the
manner of doing a particular act is prescribed under any
statute, the act must be done in that manner or not at all.
The origin of this rule is traceable to the decision
in Taylor v. Taylor [(1875) 1 Ch D 426 : 45 LJCh 373] which
was followed by Lord Roche in Nazir Ahmad v. King
Emperor [(1936) 63 IA 372 : AIR 1936 PC 253] who stated
as under:
“[W]here a power is given to do a certain thing in a
certain way, the thing must be done in that way or not at
all.”
32. This rule has since been approved by this Court
in Rao Shiv Bahadur Singh v. State of V.P. [AIR 1954 SC 322
: 1954 SCR 1098] and again in Deep Chand v. State of
Rajasthan [AIR 1961 SC 1527 : (1962) 1 SCR 662] . These
cases were considered by a three-Judge Bench of this Court
in State of U.P. v. Singhara Singh [AIR 1964 SC 358 : (1964)
1 SCWR 57] and the rule laid down in Nazir Ahmad
case [(1936) 63 IA 372 : AIR 1936 PC 253] was again
upheld. This rule has since been applied to the exercise of
2
1999 SCC OnLine SC 284
51
jurisdiction by courts and has also been recognised as a
salutary principle of administrative law.”
The Apex Court clearly holds that it is settled principle of law that if
an act under the statute is to be performed in a particular manner,
it shall be only in that manner. The rule, the Apex Court observes,
has since been applied to exercise of jurisdiction by Courts, it
therefore becomes a jurisdictional issue. The order of the
concerned Court directing the learned Magistrate to record
statement under Section 164(1) of the Cr.P.C., is quoted
hereinabove. The trial, in the case at hand, has commenced long
ago, admittedly. Therefore, there can be no order directing
recording of statement under Section 164 of the Cr.P.C., that too at
the hands of the learned Magistrate, above all, in the presence of
the advocate for accused No.1 and after the case has been
committed to the Court of Sessions, and here the Special Court.
The action of the Special Court in directing recording of statement
under Section 164 of the Cr.P.C., is on the face of it, illegal and
contrary to the statute. The order impugned does not bear
independent consideration, or independent application of mind for
passage of the impugned order. It is founded only upon Section 164
52
Cr.P.C. statement recorded by the learned magistrate pursuant to
the direction, blatantly contrary to law. Therefore, illegalities galore
in granting pardon of accused No.1. The impugned order is thus
unsustainable, as it stems from procedure adopted contrary to law.
The issue is answered accordingly.
Issue No.3:
What should be the procedure for grant of pardon
under Section 306 of the Cr.P.C.?
21. What is the procedure to be adopted while passing an
order on seeking pardon is also elucidated by the Apex Court in the
case of RAMPAL PITHWA RAHIDAS v. STATE OF
MAHARASHTRA3, wherein it is held as follows:
“…. …. ….
30. From the statement of the approver appearing as
PW 49 at the trial, it emerges that even though Babulal
accused had told him that he shall be given 200 rupees, for
joining the other accused in the commission of the crime, but
after commission of the crime, he was not given any money
and was told by accused Babulal to go back to his home
town and in spite of his telling Babulal that he had no
money, none was given to him. If as deposed to by the3
1994 Supp (2) SCC 73
53approver, Babulal and others wanted the approver to go
away to his home town because the police was already
making enquiries in the matter and he being a new person
could be suspected and interrogated, but surprisingly they
took no steps by giving him at least the railway fare to go
back to his home town or put him on the train so that he
would be out of the village and thus out of the reach of the
investigating agency. Would the accused persons, who had
joined a complete stranger for the commission of the crime,
not even take the elementary steps to see that he is out of
the village and left him high and dry? We find it difficult to
accept. The approver, has only tried to remain clear either
while committing or for sharing the fruits of the dacoity. The
conduct of the approver going away without a penny and the
co-accused letting him go like that belies logic and common
sense.
31. The statement of the approver at the trial
recorded more than three years after the occurrence, is so
detailed that it is difficult to believe its authenticity
particularly when it also travels far beyond what was
stated by the approver in his confessional statement
recorded under Section 164 CrPC only a few days after
the occurrence. It is humanly not possible for an illiterate
rustic person to remember all such minute details as have
been given by the approver detailing even the sequence of
events during the alleged occurrence.
32. The sequence of events at Ballarshah Road as
detailed by the approver in his statement in the court is quite
different than the sequence of events as deposed to by the
three injured eyewitnesses. The High Court noticed that
there was variations in the version given by Ramcharan
approver and the three eyewitnesses as regards the
sequence of events and the manner of assault but chose to
ignore this by observing:
“But having regard to the nature of the
incident, the fact that the life of the eyewitnesses
was in peril and the horrendous conditions under
which they had to make their escape, we do not
think that the discrepancies regarding the order in
which the vehicles came and the directions in which
54they went can be reflecting upon the credibility of
the eyewitnesses. All this eventually had been
occurring in darkness, and even Ramcharan’s
recollection in this respect cannot but be too hazy
because of the gruesome nature of the incidence.
We, therefore, attach no value to the
discrepancies.”
This approach of the High Court does not appeal to us. The
importance of the discrepancies had to be considered to test
the credibility and trustworthiness of the approver and the
High Court failed to do so.
33. A careful analysis of the statement of the
approver given at the trial coupled with the
circumstances under which he came to be arrested,
the averments in his application for grant of bail and
other circumstances has created an impression on our
minds that the approver is a planted witness and his
testimony is not at all worthy of reliance and credence.
The investigating agency appears to have created false
evidence and fabricated false clues insofar as the
testimony of the approver is concerned. From all the
attendant circumstances, we are satisfied that the
approver Ramcharan is not a reliable witness; his
arrest was intrinsically unnatural and his self-
confessed participation in the crime without taking
any active part in it not acceptable. The approver has
claimed to be a spectator of every fact and of every
moment but asserted that he did not participate in the
assault at any stage and remained standing at a
distance taking care of the clothes of some of the co-
accused. His statement is almost of an exculpatory
nature. His statement as a whole does not inspire
confidence. His story is not worthy of credence. We
find ourselves unable to place any reliance on his
untrustworthy and unreliable evidence and in that
view of the matter, we refrain even from expressing
any opinion about the effect of the alleged non-
compliance with the provisions of Section 306(4) CrPC
read with Section 307 CrPC, as admittedly after the
grant of pardon by the order dated April 24, 1987, no
statement of Ramcharan approver was recorded till he
55
appeared at the trial as PW 49. It is only after the
grant of pardon that the status of an accused is
changed into that of a witness and the law enjoins
upon the courts to record the statement of the
approver immediately after pardon is granted to him
so that he may consider himself bound by that
statement and failure to do so at the trial would
render him liable for prosecution. That exercise was
not performed in this case.
34. Once, we have found that the approver is a
planted witness and his testimony is not worthy of credence
and is uninspiring and unacceptable justifying its rejection
outright, it will be futile and wholly unnecessary to look for
corroboration of his testimony. It is only when the approver’s
evidence is considered otherwise acceptable that the court
applies its mind to the rule that his testimony needs
corroboration in material particulars connecting or tending to
connect each one of the accused with the crime charged. We
need not therefore detain ourselves to consider the other
evidence led by the prosecution to corroborate the testimony
of the approver. Suffice it to say that even the corroborating
evidence of identification of the appellants in court by the
three injured witnesses, in the absence of any earlier test
identification parade, or the recoveries made by the
associating convenient panch witnesses for all the recoveries
conducted from different places on different dates at the
instance of different accused but in the presence of the same
panch witness PW 27 is not trustworthy or reliable.”
(Emphasis supplied)
The Apex Court holds that the evidence of the witness who has
turned approver can be recorded only after grant of pardon during
the trial and not before grant of pardon.
56
22. Insofar as the case at hand is concerned, there is gross
procedural aberration, as the statement under Section 164 is
recorded while considering an application seeking pardon under
Section 306 of the Cr.P.C., which cannot be done. Section 306 of
the Cr.P.C. does not empower the concerned Court, to adopt a
procedure contrary to law. It is plain and simple that the Court
should consider the application on its merit, either allow or reject
the application, and in the event, the application is allowed, the
procedure would be of recording of evidence – examination and
cross-examination, of the said approver witness during the trial.
Recording of confession/statement, under Section 164 of the
Cr.P.C., after commencement of trial has no legal sanction.
23. The submission of the learned counsel for the CBI is that
the statement under Section 164 of the Cr.P.C. should be
eschewed, as everything is contained in the report of the
Investigating Officer which is made part of the order and, therefore
the order should be sustained. The said statement is also
unacceptable. The communication of accused No.1 to the
Investigating Officer does not bear a date, but it does bear
57
reference in the additional response of the CBI. The additional
response reads as follows:
“The additional response of CBI to the application filed
by A-1 u/s 306 Cr.PC r/w confessional statement
recorded u/s 164(1) Cr.PCThe Prosecution has carefully perused the 164(1)
Statement given by Basavaraj Shivappa Muttagi (A-1) which
was given in consequence of filing 306 Cr.PC application for
granting tender of pardon to A-1. In the said statement
recorded u/s 164(1) Cr.PC before the Ld. 17th ACJM,
Bangalore, Basavaraj Shivappa Muttagi has disclosed the
following crucial facts which are in support of the prosecution
case. The prosecution has mentioned below the underlined
reasons for giving no objection to grant tender of pardon to
A1.
1. The accused No.1 disclosed the facts that he
has written letter to deceased Yogesh
Goudar stating Yogesh Goudar life under risk
and accused No.15 Vinay Kulkarni was
planning to kill the deceased Yogesh Goudar.
The said letter was cited as the document in
the instant case and also marked in the
earlier trial held in IV Additional District and
Session Judge, Dharwad in S.C. 50 of 2017.
The said letter establishes the motive of
A15 to murder Yogesh Goudar. Further,
the letter proves the conspiracy is being
hatched by A15 to murder the Yogesh
Goudar. It is pertinent to note that A1 is
only witness to prove the contents of
the letter which is crucial for the
prosecution case.
2. Yogesh Goudar insulted and humiliated Vinay
Kulkarni in a Zilla Panchayat meeting held on
23-04-2016 because of which Vinay Kulkarni
started planning for murder of Yogesh
Goudar and instructed Basavaraj Muttagi to
58commit the murder of YogeshGoudar. This
fact disclosed by the Accused No.1
proves the motive for the commission of
murder.
3. The conspiracy was hatched between
Basavaraj Shivappa Muttagi (A1) with Vikas
Kalburgi (A18), Keerthi Kumar Kurahatti (A-
3), Mahabaleshwar Hongal (A-6), Vikram
Bellari (A-2), Sandeep Savadatti (A-4)
Santosh Savadatti (A-7), Vinayak Katagi
(A5), Dinesh M.Dinni (A-8), Aswath (A-9),
Sunil (A10) Nazeeer Ahmed (A-11),
Shanawaz (A-12), Nutan (A-13), Harshith
(A-14) to commit the murder of Yogesh
Goudar at the instance of Vinay Kulkarni (A-
15). These facts disclosed by A1 clearly
prove the role of A1 to A14 in hatching
conspiracy for the commission of the
murder of Yogesh Goudar on the
instruction of Accused No.15.
4. Basavaraj Shivappa Muttagi met Dinesh for
the purpose of committing the murder of
Yogesh Goudar. These facts disclosed by
A1 clearly prove the role of Dinesh in
the murder of Yogesh Goudar.
5. While committing the conspiracy of the
murder the understanding was that Dinesh
M. Dinni, Aswath, Sunil, Nazeer Ahmed,
Shanwaz, Nutan, Harshith would commit the
murder of Yogesh Goudar. However, they
were not willing to go to jail. Hence, Vinay
Kulkarni instructed Basavaraj Shivappa
Muttagi that the murder would be committed
by Dinesh M. Dinni, Aswath, Sunil, Nazeer
Ahmed, Shanawaz, Nutan, Harshith but
Basavaraj Shivappa Muttagi and his
associates who belonged to Dharwad namely
Vikas Kalburgi, Keerthi Kumar Kurahatti,
Mahabaleshwar Hongal. Vikram Bellari,
Sandeep Savadatti, Santosh Savadatti,
59Vinayak Katagi would go to jail in place of
original assailants. These facts disclosed
by A1 establish that A1 to A6 has
surrendered in place of A7 to A14 as
instructed by A15 which is crucial to
prove the prosecution case.
6. During April-May 2016 Basavaraj Muttagi
was asked by Vinay Kulkarni to bring 10 Sim
Cards and 10 basic model mobiles for the
purpose of communicating to the various
associates who were going to be involved in
the murder of Yogesh Goudar. These facts
disclosed by A1 establishes the modus
operandi adopted by A15 by instructing
A1 to purchase sim cards and basic
mobiles so that communications
between the accused person in respect
of Yogesh Goudar can be carried out
secretly.
7. Before the commission of Yogesh Goudar
murder, at the instance of Vijay Kulkarni on
24-05-2016, the sale agreement was
entered between Todkar and Basavaraj
Shivappa Muttagi through Nataraj and
Veeresh. These facts disclosed by A1
establishes that the motive of the
murder of Yogesh Goudar was deviated
and was projected (at the instance of
A15) as the land dispute between A1
and Yogesh Goudar instead of political
rivalry between A15 and Yogesh
Goudar.
8. On 12-06-2016 Basavaraj Muttagi stayed in
Ankita Hotel till the murder was over.
Further on 13-06-2016 through Somashekar
Nyame Gowda (A-21 Personal Secretary of
A-15 Vinay Kulkarni) communicated to
Basavaraj Muttagi for executing the murder
of Yogesh Goudar. These facts disclosed
by A1 establishes that A1 has
60
coordinated the murder of Yogesh
Goudar and the task of executing the
murder of Yogesh Goudar has been
communicated to A1 by A-21 on behalf
of A15.
9. During May 2016, Vinay Kulkarni provided 3
country pistols and Rs.15 lakhs cash to A1
for the purpose of utilizing the same for the
commission of Yogesh Goudar murder.
Further, A15 while handing over th3e pistols
to A1 has specifically stated that Chandu
mama brought 3 country pistols. These
facts disclosed by A1 establishes the
role of Chandu Mama @ Chandrashekar
Indi in providing pistols to A15 for the
purpose of conspiracy relating to
commission of murder of Yogesh
Goudar.
10. On 16-06-2016 around 7.30 a.m. in the
morning Yogesh Goudar came to the Gym.
After commission of the murder it was
informed to Basavaraj Shivappa Muttagi that
Santosh Savadatti put chilli powder in
Yogesh Goudar’s eyes. Ashwath hit Yogesh
Gowda on the head with a machchu and
other accused persons namely Harshit,
Dinesh, Nutan, Shahnawaz, Nazir, Sunil were
attacking Yogesh Goudar. These facts
disclosed by A1 establishes that A7 to
A14 are the real assailants of Yogesh
Goudar’s murder and also prove the
execution of commission of murder.
11. After commission of the murder Basavaraj
Shivappa Muttagi, Vinayak Katagi and
Keerthi Kumar Kurahatti, Vikram Bellari
came by Chevrolet Car in front of the Gym at
7.42 a.m. on 15-06-2016 to confirm the
execution of Yogesh Goudar’s murder.
These facts disclosed by A1 and above
accused establishes their role for
61
confirming the murder of Yogesh
Goudar.
12. After the commission of murder all the
accused persons stayed in different
destinations for the purpose of hiding
themselves. These facts disclosed by A1
prove the conduct of the accused after
the murder of Yogesh Goudar.
13. After the commission of the murder
Basavaraj Shivappa Muttagi met Vinay
Kulkarni Chandrashekar Indi (A-16),
Somashekar Nyame Goudar (A-21), Vijay
Kulkarni, Kempegowda Patil in Bangalore
and appraised about the murder of Yogesh
Goudar to them. Further they requested to
surrender the associates of Muttagi
belonging to Dharwad before the police as
for the same arrangements was taken place.
These facts disclosed by A1 prove the
role of the above accused as to the
arrangements done by them for
surrendering A1 to A6 in place of real
offenders A7 to A14.
14. Asst. Commissioner of Police received Rs.2
lakhs from Basavaraj Muttagi through
Mahesh Shetty and Inspector Tingerikar
brought the required weapons (which are not
the real ones used for the murder and the
panchanama was made by him). All the 6
persons belonging to Dharwad including A1
surrendered before the Police. These facts
disclosed by A1 prove that weapons
recovered in the Yogesh Goudar murder
case is not the real weapons used for
the murder and also proves the role of
A19 and A20.
15. During the trial of Yogesh Goudar murder
held at Dharwad Court, all the eye witnesses
were taken to Vinay Kulkarni’s farm house
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and further they were taken to Goa by
Basavaraj Shivappa Muttagi, Babu Logender,
Amit Doddamani and Nitin Shetty. Further
from Goa all the eye witnesses were taken to
Rashi Farm, Dharwad. These facts
disclosed by A1 prove the role of A15
that he has threatened the witness in
Yogesh Goudar case.
16. At the instance of Vinay Kulkarni the Public
Prosecutor of Yogesh Goudar’s case namely
Shaila Angadi was transferred. These facts
disclosed by A1 to prove the role of A15
in transferring the public prosecutor
(who conduced trial in Dharwad Court)
of Yogesh Goudar murder case.
17. The above facts disclosed by Basavaraj
Shivappa Muttagi not only strengthen the
prosecution case in various aspects but it
proves the entire connecting evidence of the
prosecution case and also proves the role of
A1 to A21. Hence, Basavaraj Shivappa
Muttagi has disclosed entire facts before the
Hon’ble Magistrate. Hence, prosecution is
giving consent for granting tender of pardon
to A1 and for giving the status of approver to
accused No.1 Basavaraj Shivappa Muttagi.”
It is verbatim reproduction of the communication. Based on the
said report, it was always open to the Court to consider and pass
necessary orders. But, the present order foundations itself
completely on Section 164 statement. Even the additional response
refers to 164 statement. Therefore, the order that has a veneer of
illegality covered on it, cannot be sustained. The recording of
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Section 164 Cr.P.C. statement for the purpose of consideration of
grant of pardon under Section 306 of the Cr.P.C., is an action
unknown to the mandate of the statute. Therefore, the action is
illegal and contrary to law. The issue is answered accordingly.
Issue No.4:
Whether the co-accused have a right to question the
order granting pardon?
24. The learned counsel for the respondent has also
contended that a co-accused cannot challenge the order of grant of
pardon to another accused to transpose himself as a witness. The
said submission is also refuted by the learned senior counsel
representing the petitioners. The submission and contra submission
need not detain this Court for long or delve deep, as the issue bears
consideration in the judgment of KAILASH NATH AGARWAL
itself, wherein the Apex Court holds as follows:
“…. …. ….
8. Mr Rana, learned counsel for the State, has raised
three contentions:
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“(1) The power under Section 337 of the Criminal
Procedure Code exercisable by the various Magistrates
mentioned therein is concurrent and the District
Magistrate in the circumstances of this case was
competent to grant pardon to Respondent 2.
(2) The Revision filed by the first respondent
before the Civil and Sessions Judge against the order of
the District Magistrate was incompetent.
(3) In any event, the grant of pardon by the
District Magistrate is only an irregularity, which is cured
by clause (g) of Section 529 of the Criminal Procedure
Code, and as such the High Court was in error in
interfering with the said order.”
… … ……
23. This decision of the Delhi High Court was
challenged before this Court in Criminal Appeal No.
109 of 1968. In its judgment dated September 16,
1968, this Court on merits agreed with the High Court
that the tender of pardon was proper. The question of
the nature of the power exercised in granting pardon
and the other question whether an order granting
pardon was revisable by a superior court, were,
however, left open. We have indicated earlier that an
order granting pardon is open to revision, but whether
the court whose powers are invoked for that purpose
will interfere or not, is a matter depending upon the
circumstances of each case. Accordingly, we hold that
the first respondent’s revision before the Sessions
Court was competent and reject the second contention
of Mr Rana.”
(Emphasis supplied)
The Apex Court holds that the order granting pardon is open to
revision. It is the discretion of the Court to interfere or not. The
Apex Court also observes that revisional Court can exercise suo
65
motu powers to consider the order of grant of pardon. This Court
now, in the present petition is exercising jurisdiction, under Section
482 of the Cr.P.C., and these are inherent powers which ostensibly
are on a higher pedestal than that of revisional powers. But the
co-accused will have a right to question procedural illegality in
granting pardon, and not the order granting pardon on its merit.
The issue is answered accordingly.
25. As observed and circumstances narrated hereinabove,
this Court cannot and has not tied the hands of accused No.1 to file
an application seeking pardon or otherwise. The Court has only
found fault with the procedure adopted by the concerned Court. It
is now necessary to notice the serious objection taken by the
learned senior counsel Sri C.V.Nagesh for averments made in the
statement of objections, with particular reference to paragraphs 18
and 19. For considering the said objection, the objectionable
paragraphs need to be noticed and they read as follows:
“…. …. ….
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18. It is urged by the petitioners that the application
under Section 306 Cr.PC is not maintainable.
18.1. It is submitted that a bare perusal of Section
306 would make it abundantly clear that the wording used in
the section enshrines that “at any stage of the investigation
or inquiry into or the trial of” which makes it evidently clear
that the application under Section 306 can be filed even at
the stage of trial. The aforesaid principle is cemented by a
catena of decisions by the Hon’ble Apex Court wherein it has
held that the application under Section 306 can be filed at
any stage before the judgment is passed. Therefore, the
ground urged by the petitioners does not hold water.
19. It is submitted that the conduct of the petitioners
in approaching this Hon’ble Court at a belated stage after a
delay of almost 15 days since the passing of impugned order
is only a thwarted attempt to delay the trial. The purpose of
criminal trial is to unearth the truth and it is a journey or a
voyage towards discovery of the truth which is its ultimate
object. The petitioners have made all the attempts at their
disposal to delay the culmination of trial in spite of this
Hon’ble Court’s direction to conclude the trial expeditiously
preferably within a period of three months.”
The objection of the CBI is that every now and then the petitioners
are approaching this Court which has contributed to gross delay in
the proceedings. This statement is completely contrary to all the
orders of the concerned Court which is repeatedly passing orders
against the prosecution in delaying completion of trial. The
observations are as follows:
“…. …. ….
It is rather unfortunate to note that inspite of
providing sufficient opportunities the prosecution are
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unable to furnish appropriate details of the witnesses
they are intending to examine. Repeatedly the
chequered history of the case indicates that case was
posted for FDT and there after some witness list
were being filed by the prosecution without
ascertaining the list which they had fled earlier.
In other words there should be some sort of
continuity in conducting trial which unfortunately is
found lacking. Though this court had fixed the date of
trial continuously much progress is not being seen
which is causing lot of inconvenience to the court
since the court is unable to take up other cases.
Accordingly, the HOB, CBI is hereby directed to
look into the matter and strictly instruct the
concerned to conduct the trial in accordance with law
and as contemplated under the law.
Without there being any other alternative the
court has reluctantly once again posted the case for
FDT since on the last stretch of dates majority of the
witnesses were not examined by the Prosecution.
For FDT, call on 22.11.2024.
Sd/- 16.11.2014
(Santhosh Gajanan Bhat)
LXXXI ACC & SJ, Bengaluru (CCH-82)
(Special Court exclusively to deal with
criminal cases related to elected former and
sitting MPs/MLAs in the State
of Karnataka)”
(Emphasis added)
… … …
“Case called out.
Accused No.2, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 20
and 21 are present.
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Accused No.1 Basavaraj Muthagi is given pardon.
Other accused are absent. EPs are filed and allowed
for the day.
Learned SPP is present.
The learned SPP has filed a memo along with list of
witnesses to be summoned. In the said memo it is noticed
that the prosecution is intending to summon CW-153 Dr.
Kumuda Rani, who is an handwriting expert in order to
prove the letter allegedly received by deceased Yogesh
Goudar prior to his murder which would be deposed by Mr.
Basaraj Muthagi.
It is relevant to note that the Hon’ble High Court of
Karnataka by its kind order has deferred the recording the
evidence of approver Mr. Basavaraj Muthagi. As such after
recording the evidence of CW-153 the court will have to
defer the cross examination since the evidence of
Basavaraj Muthagi is yet to be recorded.
That apart CW-13, CW-14 are stated to depose
about motive in the above case. It is pertinent to
note that some of the witnesses who are examined
already by the prosecution speaks about the motive.
For instance PW-2 has already deposed about the
motive and intention and even his cross examination
is deferred. On that day a submission was made that
some of the witnesses were to speak about motive.
The court today had posed a question to the learned
SPP that how many witnesses cited in the charge
sheet would speak about motive and intention.
The learned SPP submits that there are some
other witnesses apart from the one mentioned above
to depose about motive and intention to commit the
murder.
Under such circumstances, it is observed that once
again the case will be deferred for cross examination since
corroboration would be required.
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Unless a particular type of witnesses viz., eye
witnesses, witnesses who speak about motive and
intention, expert witnesses are flocked together and
examined effective cross examination will not be conducted
by the defence wherein the learned counsels for accused
have also made a submission that for the purpose of
corroboration they have to be examined together.
As such the list of witnessès proposed to be
examined is not conclusive and inspite of granting a weeks
time to the prosecution they have not come up with proper
list. It is not the duty of the court to remind the
prosecution to file a proper list of witnesses to conduct
effective trial….”
(Emphasis added)
Therefore, the delay has not occasioned due to the petitioners
approaching this Court every now and then, but the prosecution has
also contributed the delay. In that light, I again reiterate
expeditious conclusion of trial and at any rate within 2 months from
the date of receipt of a copy of this order, if not earlier. Needless
to observe that parties would cooperate with the conclusion of trial
expeditiously.
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SUMMARY OF FINDINGS:
(a) The second application seeking pardon under Section 306 of
Cr.P.C. is maintainable, only on changed circumstances, as
also, in the kind of circumstance that is projected in the case
at hand.
(b) Recording of a statement under Section 164 of Cr.P.C., prior
to grant of pardon, is illegal and such procedure cannot be
adopted in any case, while granting pardon.
(c) The procedure of examination and cross-examination will be
only after grant of pardon, as is held by the Apex Court supra
and not any time earlier to the grant of pardon.
(d) The co-accused do have a right to question the order granting
pardon under Section 306 of the Cr.P.C., only insofar as it
pertains to any procedural aberration and not the order
granting pardon on its merit.
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26. For the aforesaid reasons, the following:
ORDER
(i) Criminal Petitions are allowed.
(ii) The order dated 30-10-2024 passed by the LXXXI
Additional City Civil Judge and Sessions Judge,
Bengaluru in Special C.C. No.565 of 2021 stands
quashed.
(iii) The concerned Court shall endeavour to conclude
the trial within an outer limit of 2 months, if not
earlier.
Pending applications if any, also stand disposed, as a
consequence.
Sd/-
(M. NAGAPRASANNA)
JUDGE
Bkp
CT:MJ