The Karnataka High Court has clarified that the issuance of a certificate by the Public Prosecutor under Section 308 of the Code of Criminal Procedure does not automatically revoke a pardon granted to an approver. The judgment establishes that judicial scrutiny and a hearing of the approver are mandatory before any revocation can be ordered, reinforcing procedural safeguards for witnesses who cooperate with the prosecution.
Background & Facts
The Dispute
The Central Bureau of Investigation (CBI) sought to revoke the pardon granted to two accused persons, Shiva Murthy S.K. and P. Keshavamurthy, who had turned approvers in a corruption case under the Prevention of Corruption Act, 1988. The CBI alleged that the approvers violated the terms of their pardon by retracting key aspects of their earlier confessional statements under Section 164 CrPC and claiming they were pressured by CBI officials to testify falsely.
Procedural History
- 24 August 2016: Accused No. 3 and 4 recorded confessional statements under Section 164(1) CrPC before a Metropolitan Magistrate.
- 2017: Special Judge, empowered under Section 5(2) of the Prevention of Corruption Act and Section 307 CrPC, granted pardon to the two accused under Section 306 CrPC, conditioning it on full and true disclosure of facts.
- 2022: The prosecution filed an application under Section 308 CrPC seeking revocation of pardon, alleging the approvers had given false evidence and concealed material facts.
- 7 November 2022: The Trial Court dismissed the application, holding no violation of pardon terms was established.
- 2022: CBI filed Criminal Revision Petition before the Karnataka High Court under Sections 397 and 401 CrPC.
Relief Sought
The CBI sought to set aside the Trial Court’s order and direct the prosecution of the approvers for violating the terms of their pardon, including for the offence of giving false evidence.
The Legal Issue
The central question was whether the issuance of a certificate under Section 308(1) CrPC by the Public Prosecutor automatically revokes a pardon, or whether the court must independently assess a prima facie case of violation after hearing the approver.
Arguments Presented
For the Petitioner
The CBI contended that the approvers’ cross-examination statements - where they claimed CBI officials pressured them to give false statements under Section 164 CrPC - constituted wilful concealment and false evidence, thereby violating the conditions of pardon. It relied on State of Maharashtra v. Abu Salem to argue that the certificate alone suffices to forfeit pardon. It further asserted that the Trial Court erred in requiring an elaborate hearing, as Section 308(1) permits automatic revocation upon certification.
For the Respondent
The approvers argued that their cross-examination statements were truthful disclosures, not violations. They emphasized that the Section 164 statements were recorded before pardon was tendered, so non-disclosure at that stage could not breach post-pardon conditions. They cited Rammi Alias Rameshwar and Directorate of Enforcement v. Rajiv Saxena to assert that the court must judicially review the certificate and that the scope of cross-examination under Section 138 of the Evidence Act permits revelation of new facts without constituting perjury.
The Court's Analysis
The Court undertook a detailed statutory and procedural analysis of Section 308 CrPC, emphasizing that the use of the word "may" instead of "shall" in the provision indicates judicial discretion, not automaticity. The Court held that revocation of a judicial order - pardon - cannot be effected unilaterally by a prosecutor’s certificate without affording the approver a hearing.
"The pardon which is a judicial order cannot be revoked simply by the issuance of a certificate by the Public Prosecutor."
The Court distinguished State of Maharashtra v. Abu Salem, noting that while the Supreme Court had affirmed forfeiture upon suppression, it had not addressed the procedural requirement of a hearing. The Karnataka High Court clarified that the certificate is merely a trigger for judicial inquiry, not a conclusive determination.
The Court further examined the timing of the Section 164(1) statements, holding that since these were recorded before the pardon was granted, any omission therein could not constitute a breach of the pardon’s conditions. The approvers’ disclosures in cross-examination about CBI pressure were not false evidence per se, but potentially new facts relevant to the credibility of their earlier statements.
The Court invoked Section 138 of the Indian Evidence Act, 1872, to affirm that cross-examination is not confined to examination-in-chief and may reveal new, relevant facts. The prosecution’s failure to seek re-examination further undermined its claim of falsehood.
The Court also clarified that while prosecution for giving false evidence under Section 308 requires prior sanction of the High Court under the proviso, no such sanction was sought, rendering that avenue legally unavailable.
The Verdict
The petition was dismissed. The Court held that the approvers did not violate the terms of their pardon, and that revocation under Section 308 CrPC cannot be automatic. The prosecution’s certificate alone is insufficient; a prima facie case must be established by the court after hearing the approver. The Court reserved liberty to the prosecution to seek leave for prosecuting the approvers for false evidence, if it so chooses.
What This Means For Similar Cases
Judicial Discretion Is Mandatory in Pardon Revocation
- Practitioners must now argue that Section 308 CrPC requires a judicial hearing before revocation, not merely filing a certificate.
- Applications under Section 308 must be treated as judicial inquiries, not administrative triggers.
- Courts must record reasons for accepting or rejecting the certificate, ensuring compliance with natural justice.
Cross-Examination Cannot Be Equated With Perjury
- New facts disclosed during cross-examination, even if inconsistent with prior statements, do not automatically amount to violation of pardon terms.
- Prosecution must seek re-examination to clarify contradictions; failure to do so weakens allegations of falsehood.
- Courts must distinguish between non-disclosure before pardon and subsequent truthful revelation.
Section 164 Statements Are Not Pardon Conditions
- Statements recorded under Section 164 CrPC prior to pardon cannot be used to allege breach of pardon conditions.
- The conditions of pardon apply only from the date of the judicial order granting it.
- Prosecutors must ensure that conditions are clearly communicated and accepted after the pardon is tendered.
