Special Court can grant pardon at any stage of proceedings: Kerala High Court

The Kerala High Court recently held that a Special Court for trying National Investigation Agency (NIA) cases is empowered to grant pardon at any stage of proceedings in a case [Suresh Raj v National Investigation Agency]..A division bench of Justices K Vinod Chandran and C Jayachandran held that a special court, which has all the powers of a sessions court, can grant pardon at any stage, under Sections 306 and 307 of the Code of Criminal Procedure (CrPC)."Being a court of original criminal jurisdiction and having been specifically bestowed with the power to take congnizance, without a formal commitment of the case, a Special Court can exercise the powers to grant pardon, either under Section 306 or under Section 307 , at any stage of the proceedings; of course subject to the propriety, good faith and bona fides of exercise of such power, which also has to be made judiciously," the judgment stated..The Court also said that it is always advisable for a Special Court to consider an application for grant of pardon by itself, if cognisance is taken directly, even though it is empowered to refer it to the Chief Judicial Magistrate..The Court was considering an appeal moved by a person arrayed as accused no.6 in a case being tried by a Special NIA Court.In 2021, several persons were apprehended in connection with the seizure of a Sri Lankan fishing boat transporting huge quantities of heroin, some AK-47 rifles and ammunition, and were charged for offences under the Arms Act and the Indian Penal Code. The appellant and one other accused were also charged under the Unlawful Activities (Prevention) Act (UAPA) as they were found to be members of the proscribed organisation, Liberation Tigers of Tamil Eelam (LTTE). The NIA later filed an application before the Special NIA Court to grant pardon to three of the other accused. The Special Court decided to consider said application at the pre-cognisance stage overruling the objections of the appellant, leading to the appeal before the High Court. .Advocate Sangeetha Lakshmana, appearing for the appellant, challenged the Special Court's decision on the following grounds:The application for pardon filed at pre-cognisance stage should have been forwarded to Chief Judicial Magistrate who alone can grant pardon under Section 306 CrPC;The application should not have been considered under Section 307 CrPC as the three persons were not included as accused in the final report..Assistant Solicitor General (ASG) Manu S, appearing for the NIA, opposed the appeal on the following grounds:Being a court of original criminal jurisdiction, the Special Court can invoke the powers under both Sections 306 and 307;A person for whom pardon is sought for does not necessarily have to be an accused as Sections 306 and 307 do say 'any person supposed to have been directly or indirectly concerned in or privy to an offence';Co-accused has no locus standi to challenge a proceeding for grant of pardon to another;Appeal against an interlocutory order is not maintainable..The Court concurred with the ASG on all four grounds.Section 16(3) of the NIA Act states, "Subject to the other provisions of this Act, a Special Court shall, for the purpose of trial of any offence, have all the powers of a Court of Session and shall try such offence as if it were a Court of Session so far as may be in accordance with the procedure prescribed in the Code for the trial before a Court of Session."Therefore, the Court held that uninfluenced by the stage of investigation, inquiry or trial, a Special Court can entertain an application for grant of pardon, since it has the powers under Sections 306 and 307.The language employed in Sections 306 and 307, as pointed out by the ASG, was taken note of by the Court which agreed that pardon can be sought for persons who are not necessarily arrayed as accused but who are directly or indirectly concerned in or privy to an offence.The Court also concurred with the ASG that the co-accused has no right to challenge challenge an order for considering the tender of pardon sought by the investigating agency.It further held that the appeal, being against an interlocutory order, was not maintainable as per Section 21(1) of the NIA Act. "However, since we spent considerable time on the issue raised by the appellant and that clarity as regards the procedure is warranted for future guidance, we thought it appropriate to address the issues on merits as well," the Court said in conclusion. .[Read Judgment]