Karnataka High Court
Vikram Ballari vs Central Bureau Of Investigation on 4 April, 2025
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
1
Reserved on : 24.03.2025
Pronounced on : 04.04.2025
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 04TH DAY OF APRIL, 2025
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
WRIT PETITION No.383 OF 2025 (GM - RES)
C/W
CRIMINAL PETITION No.14321 OF 2024
CRIMINAL PETITION No.14362 OF 2024
WRIT PETITION No.751 OF 2025 (GM - RES)
IN WRIT PETITION No.383 OF 2025
BETWEEN:
SRI VINAY RAJASHEKHARAPPA KULKARNI
S/O LATE RAJASHEKHARAPPA KULKARNI,
AGED ABOUT 54 YEARS,
RESIDING AT BARAKOTRI,
SHIVAGIRI, DHARWAD,
KARNATAKA - 580 007.
... PETITIONER
(BY SRI C.V.NAGESH, SR.ADVOCATE A/W
SRI SUNIL KUMAR S., ADVOCATE)
2
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 LATE YOGISH GOUDAR,
AGED ABOUT 33 YEARS,
RESIDING AT GOVANAKOPPA,
DHARWAD - 580 112.
3 . BASAVARAJ SHIVAPPA MUTTAGI
S/O. SHIVAPPA,
AGED ABOUT 45 YEARS,
RESIDING AT MANAGUDI,
DHARWAD TALUK,
DHARWAD - 580 007.
... RESPONDENTS
(BY SRI S.V.RAJU, ADDL.SOLICITOR GENERAL OF INDIA A/W
SRI P.PRASANNA KUMAR, SPL.PP AND
SRI RAHUL KRISHNA REDDY, ADVOCATE FOR R-1/CBI;
SRI V.M.SHEELVANT, ADVOCATE FOR
SRI PRAVEEN KUMAR N.K., ADVOCATE FOR R-2;
SRI R.NAGENDRA NAIK, ADVOCATE FOR R-3)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA READ WITH SECTION 482 OF
CR.P.C., PRAYING TO QUASH THE IMPUGNED ORDER DTD
23.12.2024 PASSED BY THE LXXXI ADDL CITY CIVIL AND
SESSIONS JUDGE BENGALURU (CCH-82) (SPL. COURT
EXCLUSIVELY TO DEAL WITH CRL. CASES RELATED TO ELECTED
3
FORMER AND SITTING MPS/MLAS IN THE STATE OF KARNATAKA)
IN SPL.C.C. NO. 565/2021 IN SO FAR AS PETITIONER IS
CONCERNED IS HEREWITH PRODUCED AS ANNEXURE - F.
IN CRIMINAL PETITION No.14321 OF 2024
BETWEEN:
1 . SRI DINESH
S/O LATE MARIYAPPA
AGED ABOUT 48 YEARS
RESIDING AT: NO.45 IJOOR,
VENKATAPPA LAYOUT BADAVANE
RAMANAGAR TALUK
RAMANAGARA - 562 159.
2 . SRI ASHWATH
S/O SIDANNA GOWDA
AGED ABOUT 38 YEARS
RESIDING AT: NO. 66
1ST MAIN ROAD, D GROUP LAYOUT
NAGARBHAVI
BENGALURU - 560 078.
... PETITIONERS
(BY SRI SANDESH J.CHOUTA, SR.ADVOCATE A/W
SRI LAKSHMIKANTH G., ADVOCATE)
AND:
1. CENTRAL BUREAU OF INVESTIGATION
ANTI CORRUPTION BRANCH
REPRESENTED BY
SPECIAL PUBLIC PROSECUTOR
36, BELLARY ROAD
KGH LAYOUT, GANGANAGAR
BENGALURU - 560 032.
4
2. SMT.MALLAVVA GOUDAR
W/O LATE YOGISH GOUDAR
AGED ABOUT 33 YEARS
RESIDING AT GOVANAKOPPA
DHARWAD - 580 112.
3. BASAVARAJ SHIVAPPA MUTTAGI
S/O SHIVAPPA
AGED ABOUT 45 YEARS
RESIDING AT MANAGUNDI
DHARWAD TALUK
DHARWAD - 580 007
AMENDED VIDE ORDER DATED 30.12.2024
... RESPONDENTS
(BY SRI S.V.RAJU, ADDL.SOLICITOR GENERAL OF INDIA A/W
SRI P.PRASANNA KUMAR, SPL.PP AND
SRI RAHUL KRISHNA REDDY, ADVOCATE FOR R-1/CBI
SRI PRAVEEN KUMAR N.K., ADVOCATE FOR R-2;
SRI R.NAGENDRA NAIK, ADVOCATE FOR R-3)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C., PRAYING TO SET ASIDE THE IMPUGNED ORDER DTD
23.12.2024 PASSED BY THE LXXXI ADDL. CITY CIVIL AND
SESSIONS JDUGE, 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, U/S 25 R/W 3,
5, 8 AND SECTION 29 OF THE ARMS ACT AND SEC.7, 13(2) R/W
13(1)(d) OF PC ACT, 1988.
5
IN CRIMINAL PETITION No.14362 OF 2024
BETWEEN:
1 . VIKRAM BALLARI
S/O UDAY KUMAR BALLARI
6TH CROSS, MARATHA COLONY
DHARWAD,
HUBBALLI-DHARWAD CITY - 580 001.
2 . SANDEEP SAUDATTI
S/O SOMASHEKAR
AGED ABOUT 37 YEARS
MARATHA COLONY
MALAPUR ROAD
NEAR GANESH TEMPLE
DHARWAD
HUBBALLI-DHARWAD CITY - 580 001.
... PETITIONERS
(BY SRI SUNIL KUMAR C., ADVOCATE FOR
SRI PARAMESWARAPPA C., ADVOCATE)
AND:
1. CENTRAL BUREAU OF INVESTIGATION,
ANTI CORRUPTION BRANCH (NOW LOKAYUKTA)
REPRESENTED BY
SPECIAL PUBLIC PROSECUTOR
NO.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
6
DHARWAD - 580 112.
3. BASAVARAJ SHIVAPPA MUTTAGI
S/O SHRI SHIVAPPA,
AGED 41 YEARS,
RESIDING AT MANAGUNDI,
DHARWAD TALUK,
DHARWAD - 580 007.
IMPLEADED VIDE COURT ORDER DATED 30.12.2024.
... RESPONDENTS
(BY SRI S.V.RAJU, ADDL.SOLICITOR GENERAL OF INDIA A/W
SRI P.PRASANNA KUMAR, SPL.PP AND
SRI RAHUL KRISHNA REDDY, ADVOCATE FOR R-1/CBI
SRI PRAVEEN KUMAR N.K., ADVOCATE FOR R-2;
SRI R.NAGENDRA NAIK, ADVOCATE FOR R-3)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C., PRAYING TO QUASH THE IMPUGNED ORDER DATED
23.12.2024 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 SEC.25 R/W
SEC.3, 5, 8 AND SEC.29 OF 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 WRIT PETITION No.751 OF 2025
BETWEEN:
SRI CHANDRASHEKAR INDI @ CHANDU MAMA
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S/O SHARNABASAPPA INDI,
AGED ABOUT 62 YEARS,
RESIDING AT NO.27,
SHANKESHWAR VILLA,
2ND CROSS, ATHANI ROAD,
VIJAYPURA, KARNATAKA - 586 102.
... PETITIONER
(BY SRI M.S.SHYAM SUNDAR, SR.ADVOCATE A/W
DR.VANDANA P.L., 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. LATE YOGISH GOUDAR,
AGED ABOUT 33 YEARS,
RESIDING AT GOVANAKOPPA,
DHARWAD - 580 112.
3 . BASAVARAJ SHIVAPPA MUTTAGI
S/O SHIVAPPA,
AGED ABOUT 45 YEARS,
RESIDING AT MANAGUDI,
DHARWAD TALUK,
DHARWAD - 580 007.
... RESPONDENTS
(BY SRI S.V.RAJU, ADDL.SOLICITOR GENERAL OF INDIA A/W
SRI P.PRASANNA KUMAR, SPL.PP AND
SRI RAHUL KRISHNA REDDY, ADVOCATE FOR R-1/CBI;
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SRI V.M.SHEELVANT, ADVOCATE FOR
SRI PRAVEEN KUMAR N.K., ADVOCATE FOR R-2;
SRI R.NAGENDRA NAIK, ADVOCATE FOR R-3)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA READ WITH SECTION 482 OF
CR.P.C., PRAYING TO QUASH THE IMPUGNED ORDER DTD.
23.12.2024 PASSED BY THE LXXXI ADDL. CITY CIVIL AND
SESSIONS JUDGE, BENGALURU (CCH-82) (SPECIAL COURT
EXCLUSIVELY TO DEAL WITH CRIMINAL CASES RELATED TO
ELECTED FORMER AND SITTING MPs/ MLAs IN THE STATE OF
KARNATAKA) IN SPL.C.C.NO. 565/2021 IN SO FAR AS THE
PETITIONER IS CONCERNED.
THESE PETITIONS HAVING BEEN HEARD AND RESERVED FOR
ORDERS ON 24.03.2025, COMING ON FOR PRONOUNCEMENT THIS
DAY, THE COURT MADE THE FOLLOWING:-
CORAM: THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CAV ORDER
The petitioners in Writ Petition No.383 of 2025; Criminal
Petition No.14321 of 2024; Criminal Petition No.14362 of 2024 and
Writ Petition No.751 of 2025 call in question a solitary order dated
23-12-2024 passed by the LXXXI Additional City Civil and Sessions
Judge, Bengaluru in Special C.C.No.565 of 2021 by which accused
No.1 is granted pardon.
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2. For the sake of convenience, facts obtaining in Writ Petition
No.383 of 2025 would be narrated. Writ Petition No.383 of 2025 is
preferred by accused No.15. Other writ petitions are preferred by
different accused.
3. Adumbrated in brief, factual backgrounds as projected by
the petitioners, 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 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
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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 61 witnesses were
examined.
4. 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
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
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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 the 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.
5. 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
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.
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6. 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. The challenge to the said order
granting pardon was laid in Criminal Petition No.12176 of 2024 and
connected cases. This Court, in terms of its order dated 4-12-2024,
sets side the order granting pardon owing to procedural aberrations
and also reserved liberty to accused No.1 to file an application
afresh, if he so desired, on certain observations and further directed
that the concerned Court to conclude the trial within an outer limit
of 2 months, if not earlier. This Court while answering the aforesaid
petition had framed issues. The issues so framed read as follows:
"(i) Whether a second application seeking pardon under
Section 306 of the Cr.P.C., is maintainable?
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(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?"
On the issues, this Court drew up summary of findings, which read
as follows:
"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."
On the said summary, passed the following:
"O R D E R
"(i) Criminal Petitions are allowed.
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(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."
(Emphasis is mine)
As observed hereinabove, the concerned Court was directed to
conclude the trial within an outer limit of 2 months.
7. The order was passed on 04-12-2024. Accused No.1 then
files a fresh application on 06-12-2024, two days after passing of
the order exercising the liberty as was observed while disposing of
the aforesaid petition. The concerned Court allows the application,
permits him to turn as approver and on 30-12-2024 records the
statement or examination of accused No.1/approver which
completes his examination-in-chief. After recording of examination-
in-chief, the present petitions are preferred by several of the co-
accused which form conglomeration of these cases. One solitary
action that is called in question in all these petitions is order dated
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23-12-2024 which grants pardon or permits accused No.1 to turn
as approver.
8. Heard Sri C.V.Nagesh, learned senior counsel appearing for
the petitioner in Writ Petition No.383 of 2025; Sri Sandesh J
Chouta; learned senior counsel appearing for petitioners in
Crl.P.No.14321 of 2024; Sri Sunil Kumar C, learned counsel
appearing for petitioners in Crl.P.No.14362 of 2024; Sri M S
Shyam Sundar, learned senior counsel appearing for petitioner
W.P.No.751 of 2025; and Sri S.V. Raju, learned Additional Solicitor
General of India appearing for respondent No.1/CBI, Sri V.M.
Sheelvant, learned counsel appearing for respondent No.2 and Sri
R.Nagendra Naik, learned counsel appearing for respondent
No.3/accused No.1.
SUBMISSIONS:
Petitioner:
9. The learned senior counsel Sri C.V.Nagesh would
vehemently contend that the procedure that is stipulated under
Section 306 of the Cr.P.C. has been given a go-bye by the
16
concerned Special Court, inasmuch as the reasons recorded in
writing for granting pardon is unavailable. The procedure mandates
that once pardon is granted, that pardon should be accepted by the
person to whom pardon is granted. It is only then his evidence
could be recorded. He would further contend that inherent powers
of this Court under Section 482 of the Cr.P.C. or under Article 226
of the Constitution of India is so wide that it can entertain and
annul such orders passed under Section 306 or under Section 307
of the Cr.P.C. This Court, in the earlier petition filed, had set aside
the order passed granting pardon, on the ground that the learned
Magistrate was directed to record a statement under Section 164 of
the Cr.P.C. Despite annulling the same, it is the submission of the
learned senior counsel, that the Court again relies on the very same
evidence that was tendered by accused No.1 before the learned
Magistrate. In all, he would seek quashment of the order and
resultantly contend that accused No.1 should be brought back and
tried as an accused.
10. The learned senior counsel Sri Sandesh J. Chouta
representing one of the accused, contends that this Court on an
17
earlier occasion had reserved liberty to accused No.1 to file a
second application only on changed circumstance. There is no
changed circumstance in the case at hand to entertain a successive
application under Section 306 or Section 307 of the Cr.P.C. The
learned senior counsel would contend that there is no specific order
of grant of pardon to accused No.1. The concerned Court has not
taken acceptance of pardon from accused No.1. The impugned
order falls back on an earlier statement under Section 164 of the
Cr.P.C. The concerned Court proceeded to record the evidence of
the approver in the hottest haste. Unless the procedure under
Section 306 Cr.P.C. has been fulfilled, there cannot be an order of
pardon which would be legally valid.
11. The learned senior counsel Sri M.S. Shyamsundar
appearing for one of the accused, would toe the lines of both the
learned senior counsel in seeking to elaborate the purport of
Sections 306 and 307 of the Cr.P.C. In unison, all the learned
senior counsel representing the petitioners, would seek that the
petitions be allowed and the order of pardon be quashed.
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Additional Solicitor General:
12. Per contra, the learned Additional Solicitor General of
India Sri S.V. Raju representing the 1st respondent/CBI would
vehemently refute the submissions by contending that the Special
Judge has granted pardon under Section 5(2) of the Prevention of
Corruption Act, 1988 and not under Section 306 or Section 307 of
the Cr.P.C. It is deemed to be under Section 307 Cr.P.C. only for a
limited purpose on the purport of Section 308 of the Cr.P.C. The
pardon even if it is granted under Section 307, only the first
condition under Section 306 would become applicable. The opinion
or consent of the person who has sought pardon as obtaining under
sub-section (4) of Section 306 of the CrPC is only when the
prosecution moved for pardon. When the accused himself has
moved for pardon and has tendered his evidence, it is deemed that
he has accepted the pardon. No separate order accepting pardon is
necessary to be passed. Change of circumstance is writ large in the
case at hand.
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12.1. The learned Additional Solicitor General of India would
further contend that on the first application, the concerned Court
rejected the same on the ground that the application did not inspire
confidence. On the second application, the concerned Court had
directed recording of statement of accused No.1 under Section 164
Cr.P.C. Therefore, that was set aside. Thus, two of the orders - one
rejecting pardon and second granting pardon, have not been on
merit of the matter. They are all on technicalities. This is the first
time the concerned Court has passed the order on merits and there
is no adjudication otherwise done by the concerned Court. This
would form two concepts - one change of circumstance and the
other the issue of estoppel or res judicata.
12.2. The learned Additional Solicitor General of India would
further contend that the threat to accused No.1 and his family is
even today subsisting. Therefore, in the light of what this Court had
held, has formed the changed circumstance. He would further
contend that co-accused have no locus to challenge the grant of
pardon to co-accused, except on procedural violations. There is no
procedural violation in the case at hand. He would amplify the
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object of tendering pardon. He would seek dismissal of the
petitions.
Accused No.1/Approver:
13. The learned counsel Sri R. Nagendra Naik appearing for
accused No.1 would vehemently refute the submissions of the
learned senior counsel for the petitioners. It is his submission that
when a Special Court grants pardon, the procedure stipulated is
under Section 307 Cr.P.C. and not under Section 306 Cr.P.C.
Section 306 is the power of the Magistrate to grant pardon. Section
307 requires the procedure to be followed, only if the accused is
committed to the Court of Sessions. In the case at hand, there is no
committal to the Court of Sessions. It is presented before the Court
of Sessions owing to a jurisdictional issue. He would further take
this Court through an order passed by the concerned Court
regarding the threat to the life and limb of accused No. 1 and his
family. Recognizing the threat, he has been granted protection.
Therefore, it is his contention that, as held by this Court in the
earlier round of litigation, the threat continues and if continued, it
21
would form a changed circumstance. Therefore, there is a changed
circumstance as threat still looms large. On all other aspects, the
learned counsel would toe the lies of the Additional solicitor General
of India.
Rejoinder submissions:
14. In reply or rejoinder to the submissions of the learned
Additional Solicitor General of India and the learned counsel
Sri R. Nagendra Naik, all the learned senior counsel appearing for
the petitioners in unison would contend that Section 5(2) of the
Prevention of Corruption Act does not give a go-bye to a procedure
stipulated under Section 306 or Section 307 of the Cr.P.C. It is their
submission that the procedure is everything in criminal law. The
procedure stipulated in Section 306 can never be construed to be
directory for it to be not followed. They would reiterate that the
order impugned be quashed.
15. I have given my anxious consideration to the submissions
made by the respective learned counsel appearing for the parties
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and have perused the material on record. In furtherance whereof,
the following issues would arise for my consideration:
(1) Whether the impugned order suffers from
procedural aberration or violation of the conditions
stipulated in Section 306 of the Cr.P.C.?
(2) Under what circumstances it can be construed that
there is deemed acceptance of the person seeking
pardon?
(3) Whether pardon has to be granted owing to the
extent of culpability?
(4) Whether the co-accused have a right to challenge
the order granting pardon to the other accused?
Issues 1 and 2 go hand in hand and, therefore, they are considered
together.
Issue Nos.1 & 2:
(1) Whether the impugned order suffers from
procedural aberration or violation of the conditions
stipulated in Section 306 of the Cr.P.C.?
(2) Under what circumstances it can be construed that
there is deemed acceptance of the person seeking
pardon?
16. Up to the date on which the concerned Court passes the
impugned order, the facts are all a matter of record. They would
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not require any reiteration. It would suffice if the narration in the
subject lis begins from the order dated 04-12-2024, pursuant to
which, an application is filed by accused No.1 invoking Sections 306
and 307 of the Cr.P.C., r/w Section 344 of BNSS, 2023. The
application is in great detail. It narrates the entire circumstance.
The crux of the application lies in paragraphs 7 to 9, which read as
follows:
"7. The accused No.1 is a crucial link to establish the
conspiracy and sequence of events. As all the above facts are
within the knowledge of the accused No.1, which will support
the prosecution case. If the application of the accused No.1 is
considered for pardon, he will disclose true facts before this
Hon'ble Court. Further the accused No.1 tried his level best to
save the life of deceased Yogesh Goudar by writing a letter but
unfortunately deceased Yogesh Goudar neglected the said
information given by the Accused No.1 and lost his life.
Therefore, the accused No.1 had no intention to kill the
deceased Yogesh Goudar.
8. The accused No.1 has filed similar applications on
earlier occasions. On 30-03-2023 the same was rejected on 29-
04-2023 observing that the accused No.1 has not disclosed
either his role or role of the other accused. The accused No.1
filed another application on 19-10-2024, thereafter his 164
statement was recorded. By order dated 30-10-2024 the
application was allowed and the accused No.1 was treated as
witness. This order was challenged before the Hon'ble high
Court in Criminal Petition No.1216 of 2024 and other connected
cases. By order dated 4-12-2024 the Hon'ble High Court has
allowed the criminal petition and quashed the order. However, it
is observed that since the order is based on S.164 statement
which is not permissible. It is also observed that:
24
"Para-25: as observed as 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."
9. Further there is no legal embargo for accused No.1 to
file the present application by placing fresh or additional facts
before this Court although the earlier tender of pardon
application has been rejected by this Hon'ble Court. Accused
No.1 has disclosed the entire facts as to the alleged crime within
his knowledge hence, the present petition may be allowed.
In view of the circumstances stated above the Accused
submits that the Accused No.1 is willing to disclose the above
facts if he is considered as witness after grating him pardon."
The CBI files its objections to the application filed by accused No.1
on several issues. Quoting the same would not be necessary. Based
upon the said application and objections, the concerned Court
passes the order granting pardon. Relevant paragraphs of the
order read as follows:
"19. Point No.1: Shorn of unnecessary details, the facts
in nut shell is that the accused No.1 to 21 are being charge
sheeted and prosecuted for the commission of murder of
deceased Yogesh Goudar. Initially, the case came to be
registered by Dharwad Sub-urban Police immediately after the
murder of Yogesh Goudar on 15.6.2016. On completion of the
investigation, charge sheet was filed and the learned IV Addl.
District & Sessions Court at Dharwad to which the case was
committed had commenced the trial by framing charges and 61
witnesses were examined and when the case was set down for
recording the statement of Accused U/s. 313 of Cr. P.C., the
investigation came to be handed over to CBI, who had filed
supplementary charge sheets and Accused Nos.7 to 21 were
25
roped in as Accused persons in the final report and case came to
be committed to this Court, wherein charges were framed and
trial came to be fixed. During the midst of trial, the present
application came to be filed by Accused No.1, Basavaraj Muttagi
seeking for pardon which was allowed by this Court on
28.10.2024 and the Hon'ble High Court by its kind orders dated
04.12.2024 had quashed the same. After that, the Accused No.1
has once again filed the present application.
20. The first and foremost aspect which is required to be
considered by this Hon'ble Court whether a successive
application seeking for pardon is maintainable. The impugned
order passed by the Hon'ble High Court of Karnataka in Criminal
Petition No.12176/2024 dated 04.12.2024 has held that, the
second application seeking pardon U/s. 306 of Cr. P.C. is
maintainable only on changed circumstances, as also in the kind
of circumstances that is projected in the case on hand. In order
to maintain the said application, firstly the Accused No.1 is
required to point out change in circumstances. As rightly argued
by learned Senior Counsel, Sri. C.V. Nagesh, the applicant has
to point out the change in circumstance on which the present
application is filed and the same should not be available at the
time of making earlier application. Admittedly, in the above case
when the application was filed by the Accused No.1 at the first
instance, nothing was narrated in the application. It is settled
principles of law that when a case is committed to the Sessions
Court, the provision U/s. 307 of Cr. P.C. would be applicable.
The Accused who is seeking pardon is required to point out the
circumstances on which he is seeking for pardon. However, at
the first instance nothing was narrated and a bald application
was filed which came to be rejected by this Court. Thereafter,
the second application was filed, wherein once again no detailed
averments were made, however the Accused No.1 had stated
that he would disclose true and material facts if he was provided
with an opportunity to get his statement recorded U/s. 164 (5)
of Cr. P.C. On the basis of the same and also on the response
filed by C.B.I., the Court had directed to record his statement
U/s. 164(5) of Cr. P.C. and thereafter, pardon was granted by
this Court which was quashed by the Hon'ble High Court by its
kind order. With these factual aspects, now the Court has to
ascertain that, whether the averments made in the application
and particularly, in Para 2 of the application that, the Accused
was facing constant threat on his life and though he had
26
contested the case till now, he was ready to disclose full and
true disclosures of the whole circumstances. Further, in Para 8
of the application, the Accused No.1 has narrated about
the filing of similar application and he has stated that, in
his earlier application he had not disclosed either his role
or the role of other Accused person. And further, as per
the kind orders of the Hon'ble High Court, there was no
legal embargo for Accused No.1 to file present application
by placing fresh or additional facts before this Court
although his earlier application was rejected by this
Court. In this background, now it is required to consider
whether the aforesaid fact amounts to change in
circumstances. What could be ascertained from the
aforesaid applications is that, the Accused No.1 at the
first instance, though had filed the application, had not
disclosed any facts. Now, in his application he is making
submission that he wanted to disclose true and material
facts of the case which he had not disclosed at the earlier
instance. In strict parlance, if it is to be considered that
he should have disclosed the fact which was known to
him at the earlier instance and now he cannot be
permitted to make such application in my humble opinion
would not be proper manner to interpret the provision of
Section 307 of Cr. P.C.
... ... ...
... ... The Accused No.1 has made a serious allegation
that his life is under threat and as submitted in his
application, he is facing continuous threats on his life.
Though the principles of res judicata and such analogous
principles although are not applicable in a criminal
proceeding, still the Courts are bound by the doctrine of
judicial discipline. Further the findings of a higher
superior Court must receive serious consideration at the
hands of the Court entertaining second application at a
later stage when the same had been rejected earlier. In
such an event, it would be appropriate to give due weight
to the grounds which weighed with the former
application which came to be rejected. Ordinarily, the
issues which had been canvassed earlier would not be
permitted to be re agitated on the same grounds, as the
same it would lead to a speculation and uncertainty in the
administration of justice. When the said principles are
27
applied to the case on hand, it is noticed that at the first
instance no reasons were assigned by the Accused No.1
to seek pardon and even the prosecution was unable to
ascertain what he would disclose in the event of granting
pardon and hence the same came to be rejected by the
orders of this court. At the cost of repetition, it is noticed
that at the time of filing of the second application also no
reasons were assigned but the reasons and the
disclosures which he was intending to make was
disclosed in his statement recorded under section 164 of
Cr.P.C. Under the circumstances, the manner in which human
mind reacts to a situation under different circumstances is
required to be considered. When the aforesaid aspects are
considered with the present application, it would indicate that
the same will amount to change in circumstances. I have also
bestowed my anxious reading to the provisions of Section 307
of Cr. P.C., wherein it has been held that after commitment of
the case and prior to judgement, the pardon can be granted by
the Sessions Court. Even otherwise, the provision U/s. 307 of
Cr. P.C. makes only reference to "such conditions" and not to
any other procedures as laid down in Section 306 of Cr. P.C.
... ... ...
By looking into the above said aspects and also on the
application filed by the Accused No.1 in comparison with the
response filed by the prosecution, the Accused No.1 has made
out a ground for allowing the application. With respect to the
authorities relied upon by the learned Counsel for Accused
No.15, the judgment reported in State of U.P. Vs. Kailash
Nath Agarwal was relied upon with respect to the power of the
Court U/s. 307 and the procedure which is required to be taken
care. In another judgement which was relied upon in 2023 SCC
Online SC 900 (A.Srinivasulu Vs. State) the power of the
Court U/s. 307 of Cr. P.C. was once again discussed. Likewise,
in the judgement reported in 2024 SCC Online SC 2283
(K.Ravi Vs. State of Tamilnadu) the question of filing
repeated application after disposing the same was discussed.
However, as noticed in the kind orders passed by the Hon'ble
High Court of Karnataka in Criminal Petition No.12176/2024 the
permissibility to maintain second application is clarified subject
to pointing out the change in circumstance. Further, in the
aforesaid judgement, the Hon'ble High Court has held that the
Court had not tied the hands of the Accused No.1 to file
28
application seeking pardon, but has found fault with the
procedure adopted by this Court. Accordingly, on appreciating
the application which is filed by Accused No.1 at present would
indicate that he was privy to the incident, wherein he has taken
place at the time of hatching conspiracy and in his application
he has in detail narrated about the acts committed by him and
has also contended that he would be a crucial link to establish
conspiracy and sequence of events. Even in the response filed
by CBI would state that he had disclosed the whole
circumstances played by him along with Accused Nos.2 to 6,
wherein only circumstantial evidence is available against them
in the absence of disclosure of Accused No.1. It is also been
contended that, Accused No.1 has disclosed overt acts of
Accused Nos.7 to 14 which is crucial to prove the respective role
of Accused persons and also he has disclosed the specific roles
played by Accused Nos.15 to 20 in every stage of alleged
offence and hence, it is essential to prove the case of
prosecution. By considering the aforesaid aspects and also by
placing reliance on the authorities, I find merits in the
application filed by Accused No.1 seeking for pardon and
accordingly, the points for consideration is answered.
29. The other aspect which is required to be considered at
the time of considering the application U/s. 307 of Cr. P.C. is the
conditions that can be imposed. The provision clearly indicates
that the Court shall impose the same condition to the person as
specified U/s. 306 (1) of Cr. P.C. In this regard, reliance is
placed on the judgement of the Hon'ble Apex Court, reported in
(1997) 11 SCC 720 (A.Devendran Vs. State of Tamilnadu)
wherein it is held as under:
11. The correctness of the rival submissions again
would depend upon true interpretation of Sections 306
and 307 of the Code. Under Section 307 when pardon is
tendered after commitment of the proceedings by the
Court to which the commitment has been made the
legislative mandate is that the pardon would be tendered
on the same condition. The expression "on the same
condition" obviously refers 70 Spl.CC No.565/2021 to the
condition of tendering a pardon en grafted in sub-section
(1) of Section 306, the said condition being that the
person concerned makes a full and true disclosure of the
whole of the circumstances within his knowledge relating
29
to the offence. Sub-section (4) of Section 306 cannot be
held to be a condition for tendering pardon. A combined
reading of sub-sec tion (4) of Section 306 and Section
307 would make it clear that in a case exclusively triable
by the Sessions Court if an accused is tendered pardon
and is taken as an approver before commitment then
compliance of sub-section (4) of Section 306 becomes
mandatory and non-compliance of such mandatory
requirements would vitiate the proceedings but if an
accused is tendered pardon after the commitment by the
Court to which the proceeding is committed in exercise of
powers under Section 307 then in such a case the
provisions of sub-section (4) of Section 306 are not
attracted. The procedural requirement under sub-section
(4)(a) of Section 306 to examine the accused after
tendering pardon cannot be held to be a condition of
grant of pardon. The case of Suresh Chandra
Bahri v. State of Bihar [1995 Supp (1) SCC 80: 1995 SCC
(Cri) 60] on which the learned counsel for the appellants
strongly relied upon deals with a case where pardon had
been tendered to an accused before the commitment
proceedings and the question was whether non-
compliance of sub-section (4)(a) of Section 306 would
vitiate the trial. The Court held that the provision
contained in clause (a) of sub-section (4) of Section 306
is of mandatory nature and, therefore, non-compliance of
the same would render an order of commitment illegal. It
is no doubt true, as contended by Mr.Muralidhar, the
learned counsel appearing for the appellants, that the
procedure indicated in sub-section (4)(a) of Section 306
is intended to provide a safeguard to an accused
inasmuch as the approver has to make a statement
disclosing his evidence at the preliminary stage before the
committal or der is made and thereby the accused
becomes aware of the evidence against him and further
such evidence of an approver can be ultimately shown as
untrustworthy during the trial when the said approver
makes any contradictions or improvements to his earlier
version. But still when the legislature in Section 307 have
made specific reference to only "such conditions" and not
to the other procedures in Section 306 it would not be a
rule of interpretation to hold that even sub-section (4) (a)
of Section 306 would also be applicable in such a case.
30
By relying upon the said authority, it would be appropriate to
impose condition on Accused No.1 to make full and true
disclosure of the whole of the circumstances within his
knowledge relating to the offence and to every person
concerned whether as principal or abettor in the commission of
offence. Accordingly, Point No.1 is answered in the affirmative.
30. Point No.2:- In view of the discussions made herein
above, I proceed to pass the following:
ORDER
Application filed by Accused No.1, Basavaraj
ShivappaMuthagi U/s. 306 and 307 of Code of
Criminal Procedure, 1973 is hereby allowed and he
is considered as approver and he is directed to
make 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.”
(Emphasis added)
17. On 23-12-2024 accused No.1 is permitted to turn as
approver. Later comes the procedure of examination. He is
examined-in-chief on 30-12-2024. By then Crl.P.No.14321 of 2024
had been preferred on 26-12-2024. The examination-in-chief of
accused No.1 runs close to 28 pages. Quoting the same in the
subject order would not be necessary. Based upon that submissions
have sprung. The subject issue is whether there is procedural
aberration in tendering of pardon or permitting accused No.1 to
31
turn as approver. Therefore, it becomes necessary to notice
Sections 306 to 308 of the Cr.P.C. They read 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–
(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.
32
(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.
307. Power to direct tender of pardon.–At any
time after commitment of a case but before judgment is
passed, the Court to which the commitment is made
may, with a view to obtaining at the trial the evidence of
any person supposed to have been directly or indirectly
concerned in, or privy to, any such offence, tender a pardon
on the same condition to such person.
308. Trial of person not complying with conditions
of pardon.–(1) Where, in regard to a person who has
accepted a tender of pardon made under Section 306 or
Section 307, the Public Prosecutor certifies that in his
33opinion such person has, either by wilfully concealing
anything essential or by giving false evidence, not
complied with the condition on which the tender was
made, such person may be tried for the offence in
respect of which the pardon was so tendered or for any
other offence of which he appears to have been guilty in
connection with the same matter, and also for the offence of
giving false evidence:
Provided that such person shall not be tried jointly with
any of the other accused:
Provided further that such person shall not be tried for
the offence of giving false evidence except with the sanction of
the High Court, and nothing contained in Section 195 or
Section 340 shall apply to that offence.
(2) Any statement made by such person accepting the
tender of pardon and recorded by a Magistrate under Section
164 or by a Court under sub-section (4) of Section 306 may
be given in evidence against him at such trial.
(3) At such trial, the accused shall be entitled to plead
that he has complied with the condition upon which such
tender was made; in which case it shall be for the prosecution
to prove that the condition has not been complied with.
(4) At such trial, the Court shall–
(a) if it is a Court of Session, before the charge is
read out and explained to the accused;
(b) if it is the Court of a Magistrate, before the
evidence of the witnesses for the prosecution is
taken,
ask the accused whether he pleads that he has complied with
the conditions on which the tender of pardon was made.
(5) If the accused does so plead, the Court shall record
the plea and proceed with the trial and it shall, before passing
judgment in the case, find whether or not the accused has
34
complied with the conditions of the pardon, and, if it finds that
he has so complied, it shall, notwithstanding anything
contained in this Code, pass judgment of acquittal.”
(Emphasis supplied)
Section 306 of the Cr.P.C. deals with grant of pardon. Sub-Section
(1) of Section 306 is the soul of the provision. It permits a person
to turn as an approver, subject to the condition that such person
should make full and true disclosure of 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”. Therefore, Section 306(1) permits the
principal offender or the person who has abetted the offence to
seek pardon subject to full disclosure against others. Sub-section
(2) makes this applicable to the Court for offence triable by the
Court of Session or by the Court of a Special Judge. Sub-section (3)
mandates that every Magistrate who tenders pardon under Section
(1) shall render reasons in writing. Clause (b) of sub-section (3)
mandates that when a pardon is granted, such grant is accepted or
not by the person who whom it is made ,but he should also deduce
in writing. It is then sub-section (4) springs in, which deals with
35
examination of a witness in the Court of the Magistrate taking
cognizance. Sub-section (5) mandates that a person who has
accepted tender of pardon and has been examined under sub-
section (4) the proceedings shall proceed further without making
any further inquiry on the person who has been granted pardon.
18. Taking cue from the procedure under Section 306 Cr.P.C.,
plethora of submissions are made by all the learned senior counsel
representing the petitioners. It is their vehement submission that
sub-section (3) of Section 306 has been completely violated, as
there is no order passed by the concerned Court recording that the
person to whom pardon is granted has accepted the pardon and
such acceptance is deduced in writing. Based upon the said
submission the learned counsel have placed reliance upon sub-
section (5) which mandates that the person who has accepted
pardon should be examined. In the case at hand, admittedly there
is no reason recorded that accused No.1 has accepted pardon and
his examination-in-chief has happened after him accepting the
pardon. This, in the considered view of this Court, would not vitiate
the order granting pardon, for which I deem it appropriate to quote
36
two illustrations for the purport of sub-section (3) of Section 306
and sub-section (5) thereof.
Illustration-1:
19. Pardon can be sought by two protagonists; one, the
prosecution and the other, the accused. The prosecution can file an
application that a particular accused is wanting to seek pardon and
therefore, the Court should consider him being turning as approver
and tendering evidence. When the prosecution files an application,
it is undoubtedly mandatory for the concerned Court to record
acceptance of the accused who is wanting to turn as approver, as
on the say of the prosecution, if the Court would allow the
application and while examining the person, who has been granted
pardon, breaches the pardon and supports the accused, it would be
contrary to the application filed by the prosecution. In such
circumstance, the said person can be prosecuted under Section 308
of the Cr.P.C., quoted supra apart from him swinging back to the
position of an accused. It is, therefore, imperative that the
concerned Court records acceptance of the person to whom pardon
is granted and deduce it in writing in the course of the order when
37
the application seeking pardon is by prosecution. This illustration is
not the issue in the case at hand.
Illustration-2:
20. As observed hereinabove, either the prosecution or the
accused can seek pardon. Here, accused No.1 himself is seeking
pardon. He has filed applications not once, but thrice, seeking
pardon. The first application is rejected by the concerned Court. The
second application was found to be in a legal flaw by this Court. The
third application is the subject application. To an application filed by
the accused, the prosecution can file its objections contending that
the person who is seeking pardon is not trustworthy to be granted
pardon. The co-accused can also object or have a say when there
is procedural violation in granting pardon. In the case at hand, the
CBI/the prosecution is sailing with accused No.1 who has sought
pardon and, therefore, accused No.1 and the CBI/the prosecutor
are on the same page. Therefore, the application filed by accused
No.1 or any accused who would himself seek pardon and the
prosecution supports such pardon, in the considered view of this
Court, it is deemed acceptance of pardon. In case of deemed
38
acceptance of pardon, in a circumstance or illustration as narrated
hereinabove, there is no mandatory necessity for the Court to
record or deduce the acceptance in writing. In the case at hand, as
observed hereinabove, both accused No.1 and the prosecution are
together wanting evidence from accused No.1. Therefore,
non-recording of reasons of acceptance of pardon, as obtaining in
sub-section (3) of Section 306 Cr.P.C., would not vitiate the order
granting pardon. Same goes with sub-section (5) of Section 306.
21. It now becomes germane to notice the purport of Section
307. Section 307 of the Cr.P.C., is plain and simple. It deals with
power to direct tender of pardon. Section 307 deals with specific
circumstance. At any time, after commitment of the case but before
judgment, the Court to which the commitment is made, may with a
view to obtain evidence tender pardon, on the same condition to
such person. Section 307 Cr.P.C. therefore is not hedged with any
condition in the statute. But, the final words of the statute are that
‘on the same condition to such person’. This is where
obfuscation has arisen. Whether all the conditions stipulated in
Section 306 Cr.P.C., would become applicable to Section 307 as
39
well or only the condition of complete disclosure as found in sub-
section (1) of Section 306 Cr.P.C. is required to be considered.
22. The submission of the learned senior counsel appearing
for the petitioners in unison is that the words “on the same
condition” appearing in Section 307 would amount to all the
conditions in Section 306. This is again is unacceptable. The only
condition, the soul of the provisions i.e., Sections 306 and 307
which is complete disclosure. The interpretation of this need not
detain this Court for long or delve deep into the matter. The Apex
Court in the case of SANTOSH KUMAR SATISHBHUSHAN
BARIYAR v. STATE OF MAHARASHTRA1 has held as follows:
“…. …. ….
30. Section 306, thus, empowers the Chief Judicial
Magistrate or a Metropolitan Magistrate or a Magistrate of the
First Class inquiring into or trying the offence to 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 relating to the offence and to every other person
concerned, whether as principal or abettor, in the commission
thereof. The said provision indisputably applies to the cases
triable exclusively by a Court of Session. The Magistrate
tendering pardon is required to record his reasons for so doing
1
(2009) 6 SCC 498
40
and to further record whether the tender was or was not
accepted by the person to whom it was made.
31. Sub-section (4) of Section 306 of the Code of
Criminal Procedure mandates that such a person
accepting tender of pardon must be examined as a
witness in the trial. Sub-section (5) of Section 306 of the
Code of Criminal Procedure provides that where a person
has accepted tender of pardon made under sub-section
(1) and has been examined under sub-section (4), the
Magistrate taking cognizance of the offence shall commit
it for trial, without making any further inquiry in the case.
32. Whether the terms “on the same condition” occurring
in Section 307 of the Code of Criminal Procedure refer to sub-
section (4) of Section 306 thereof and as in the instant case
apart from the purported statement made by Kumar Gaurav
(PW 1) under Section 164 of the Code of Criminal Procedure,
which had been retracted, as no other statement had been
taken from him by the learned Magistrate, the order granting
pardon in his favour was illegal, is the question.
33. In our opinion, the submission of Mr Sushil Kumar
does not merit acceptance.
34. Sub-section (4) of Section 306 is procedural in
nature. It is necessary to be followed only by a
Magistrate as he would not have any jurisdiction to try
the case himself. The learned Sessions Judge before
whom the case is committed for trial must be informed as
to on what basis pardon had been tendered. Section 307
does not contain any such condition. The power of the
learned Sessions Judge is independent of the provisions
contained in Section 306 thereof. The condition
mentioned in Section 307 refers to the condition laid
down in sub-section (1) of Section 306, namely, that the
person in whose favour the pardon has been tendered,
will make a full and true disclosure of the whole of the
circumstances within his knowledge. The power of a
Sessions Court is not hedged with any other condition.”
(Emphasis supplied)
41
The Apex Court interprets the words occurring in Section 307 “on
the same condition” to be applicable only to sub-section (1) of
Section 306 and to no other provision. The Apex Court clearly
holds that Section 306 is a power of grant of pardon by the
Magistrate and Section 307 by the Court of Session. To the Court
of Session, except Section 306(1), no other condition stipulated in
Section 306 would become applicable. Therefore, the contention
that even if the concerned Court is granting pardon under Section
307 of the Cr.P.C., it should follow and comply with all the
conditions stipulated in sub-section (2) of Section 306 is a
submission that would not merit any acceptance. In the light of
what is observed hereinabove, the unmistakable inference is that,
there is no procedural aberration or violation in the order granting
pardon. A judgment by a 3 Judge Bench of the Apex Court in the
case of LT. COMMANDER PASCAL FERNANDES v. STATE OF
MAHARASHTRA2 would through complete light to the case at hand
wherein it is held as follows:
“…. …. ….
13. There is no merit in the contention that Section 540
of the Code of Criminal Procedure governs either Sections 337
2
1967 SCC OnLine SC 37
42
or 338 of the Code or Section 8(2) of the Criminal Law
Amendment Act. That section only confers powers on the
Court to summon material witnesses at any stage of any
inquiry or trial or other proceeding under the Code. That
power is not to be confused with the power to tender pardon
to an accused. The considerations for summoning witnesses as
court witnesses are somewhat different from the
considerations on which a tender of pardon should be made. It
is no doubt necessary to bear in mind the interests of justice
in either case but there the common factor ceases and other
considerations arise. It is not, therefore, possible to read
Section 540 with Sections 337 and 338 of the Code or with
Section 8(2) of the Criminal Law Amendment Act.
14. The next question is whether the Special
Judge acted with due propriety in his jurisdiction. Here
the interests of the accused are just as important as
those of the prosecution. No procedure or action can be
in the interest of justice if it is prejudicial to an accused.
There are also matters of public policy to consider.
Before the Special Judge acts to tender pardon, he
must, of course, know the nature of the evidence the
person seeking conditional pardon is likely to give, the
nature of his complicity and the degree of his culpability
in relation to the offence and in relation to the co-
accused. What is meant by public policy is illustrated, by
a case from Dublin Commission Court (Reg v. Robert
Dunne, 5 Cox Cr. cases 507) in which Torrens, J., on
behalf of himself and Perrin, J., observed as follows:
“From what I can see of this case, this witness
Bryan, who has been admitted as an approver by the
Crown is much the more criminal of the two on his own
showing… I regret that this witness, Bryan, has been
admitted as evidence for the Crown and thus escaped
being placed upon his trial. It is the duty of Magistrates to
be very cautious as to whom they admit to give evidence
as approvers, and they should carefully inquire to what
extent the approver is mixed up with the transaction, and
if he be an accomplice, into the extent of his guilt….”
15. In this case the Special Judge made no effort
to find out what Jagasia had to disclose. The English law
and practice is (a) to omit the proposed approver from
43
the indictment, or (b) to take his plea of guilty on
arraignment, or (c) to offer no evidence and permit his
acquittal, or (d) to enter a nolle prosequi. In our
criminal jurisdiction there is a tender of a pardon on
condition of full disclosure. Section 8(2) of the Criminal
Law Amendment Act is enabling. Without recourse to it
an accused person cannot be examined as a witness in
the same case against another accused. To determine
whether the accused’s testimony as an approver is
likely to advance the interest of justice, the Special
Judge must have material before him to show what the
nature of that testimony will be. Ordinarily it is for the
prosecution to ask that a particular accused, out of
several may be tendered pardon. But even where the
accused directly applies to the Special Judge, he must
first refer the request to the prosecuting agency. It is
not for the Special Judge to enter the ring as a veritable
director of prosecution. The power which the Special
Judge exercises is not on his own behalf but on behalf
of the prosecuting agency and must, therefore, be
exercised only when the prosecuting joins tendered
pardon because it does not need approver’s testimony.
It may also not like the tender of pardon to the crime or
the worst offender. The proper course for the Special
Judge is to ask for a statement from the prosecution on
the request of the prisoner. If the prosecution thinks
that the tender of pardon will be in the interests of a
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. The
Special Judge (or the Magistrate) must not take on
himself the task of determining the propriety of
tendering pardon in the circumstances of the case. The
learned Special Judge did not bear these considerations
in mind and took on himself something from which he
should have kept aloof. All that he should have done
was to have asked for the opinion of the public
prosecutor on the proposal. But since the Public
Prosecutor, when appearing in the High Court, stated
that the prosecution also considered favourably the
tender of pardon to Jagasia we say no more than to
caution Magistrates and Judges in the matter of tender
of pardon suomotu at the request of the accused. This
44
practice is to be avoided. Since the prosecution in this
case also wants that the tender of pardon be made it is
obvious that the appeal must fail. It will accordingly be
dismissed.
1. “8 Procedure and powers of special
judges.–(1) A special judge may take cognizance of
offences without the accused being committed to
him for trial, and in trying the accused persons,
shall follow the procedure prescribed by the Code of
Criminal Procedure, 1898 (Act 5 of 1898), for the
trial of warrant cases by magistrates (2) A special
judge may, with a view to obtaining the evidence of
any person supposed to have been directly or
indirectly concerned in, or privy to an offence,
tender a pardon to such person on condition of his
making a full and true disclosure of the whole
circumstances within his knowledge relating to the
offence and to every other person concerned,
whether as principal or abettor, in the commission
thereof; and any pardon so tendered shall, for the
purposes of sections 339 and 339-A of the Code of
Criminal Procedure, 1898, be deemed to have been
tendered under section 338 of that Code (3) Save as
provided in sub-section (1) or sub-section (2), the
provisions of the Code of Criminal Procedure, 1898
shall, so far as they are not inconsistent with this
Act, apply to the proceedings before a special judge;
and for the purposes of the said provisions, the
court of the special judge shall be deemed to be a
court of session trying cases without a jury or
without the aid of assessors and the person
conducting a prosecution before a special judge
shall be deemed to be a public prosecutor (4)
***
2. “338 Power to direct tender of pardon–At any
time after commitment, but before judgment is passed,
the Court to which the commitment is made may, with the
view of obtaining on the trial the evidence of any person
supposed to have been directly or indirectly concerned in,
or privy to, any such offence, tender, or order the
committing Magistrate or the District Magistrate to tender,
a pardon on the same condition to such person.”
Appeal dismissed.”
(Emphasis supplied)
45
The Apex Court was interpreting old Cr.P.C. and at paragraph 15
supra holds that, if the prosecution has filed an application seeking
pardon to a particular accused and the Court desired to accept the
said application, acceptance of pardon by the said person is
mandatory, as on an application being filed by the prosecution an
accused who is said to have accepted the pardon does not honour
the pardon at the time of recording of evidence, it would cause
grave prejudice to the application filed by the prosecution.
Therefore, acceptance of pardon becomes mandatory, only in cases
where the prosecution would file an application seeking pardon to
an accused.
Issue No.3:
(3) Whether pardon has to be granted owing to the
extent of culpability?
23. On this issue, both the learned senior counsel appearing
for the petitioners and the Additional Solicitor General of India have
made plethora of submissions. The contention of the learned senior
counsel for the petitioners is that, accused No.1 was the main
46
assailant. Such person who was the main assailant in the charge
sheet filed by the State before the concerned Court should not be
permitted pardon and if such pardon is granted, it would be putting
a premium on the act of accused No.1. Therefore, the submission is
that the offence and the culpability should be assessed before any
Court would grant pardon to any of the accused. On the other hand,
the submission of the learned Additional Solicitor General of India is
that, grant of pardon does not depend upon the culpability. The
provision itself is clear that the principal offender or the objector
could seek pardon. The contention is that culpability of any
accused has no role to play in grant of pardon. The learned counsel
Sri R.Nagendra Naik appearing for accused No.1 has contended that
accused No.1 may have been shown as principal offender or
assailant in the charge sheet filed by the State, but when the CBI
took over and conducted investigation, it revealed that he is only a
conspirator and the allegation that is against him is under the Arms
Act for purchase of Pistols. He would, therefore, contend that
accused No.1 is no longer the alleged main assailant.
47
24. The issue now would be, whether the assessment of
culpability should be gone into by the concerned Court, at the time
of grant of pardon. The Apex Court delineates the said principle in
the judgment rendered in the case of SURESH CHANDRA BAHRI
v. STATE OF BIHAR3 as follows:
“…. …. ….
40. Learned counsel appearing for the appellant Raj Pal
Sharma next contended that there is no direct evidence or
ocular testimony with regard to the alleged murder either of
UrshiaBahri or that of her two children Richa and Saurabh and
the conviction of the appellants has been founded on the
approver’s evidence and other circumstantial evidence adduced
by the prosecution. Learned counsel submitted that the two
courts below are not justified in relying on the evidence of
accomplice/approver Ram Sagar PW 3 whose evidence is not
free from serious doubt particularly in view of the fact that he
was examined as a witness by the committing Magistrate on 30-
1-1985 after about one year and two months of the occurrence.
It was urged that in the absence of corroboration of material
particulars no conviction can be based on the testimony of an
accomplice and since the circumstances alleged against the
appellants are not proved to the hilt, the same cannot be
regarded as complete chain of circumstances established
against the appellants so as to base their convictions on the
same. Similar arguments were advanced by the learned counsel
appearing for the appellants Suresh Bahri and Gurbachan Singh.
Before we discuss the merits or demerits of the aforesaid
submissions we would like to state that the law relating to
conviction based on circumstantial evidence is well settled and it
hardly requires a detailed discussion on this aspect. Suffice to
say that in a case of murder in which the evidence that is
available is only circumstantial in nature then in that event the
facts and circumstances from which the conclusion of guilt is
required to be drawn by the prosecution must be fully
3
1995 Supp (1) SCC 80
48
established beyond all reasonable doubt and the facts and
circumstances so established should not only be consistent with
the guilt of the accused but they also must entirely be
incompatible with the innocence of the accused and must
exclude every reasonable hypothesis consistent with his
innocence.
41. In order to meet the aforementioned arguments of
the learned counsel for the appellants, we shall now proceed to
state the law relating to the grant of pardon to an
accomplice/approver, the value of his evidence and the extent
of reliance that can be placed on his evidence.
42. We have already reproduced above Section 306 of the
Code the provisions of which apply to any offence triable
exclusively by the Court of Special Judge to any offence
punishable with imprisonment extending to seven years or with
a more serious sentence. Section 306 of the Code lays down
a clear exception to the principle that no inducement
shall be offered to a person to disclose what he knows
about the procedure (sic). Since many a times the crime
is committed in a manner for which no clue or any trace
is available for its detection and, therefore, pardon is
granted for apprehension of the other offenders for the
recovery of the incriminating objects and the production
of the evidence which otherwise is unobtainable. 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.
There can therefore be no objection against tender of pardon to
an accomplice simply because in his confession, he does not
implicate himself to the same extent as the other accused
because all that Section 306 requires is that pardon may be
49
tendered to any person believed to be involved directly or
indirectly in or privy to an offence.”
(Emphasis supplied)
The Apex Court considering the purport of Section 306 of the
Cr.P.C., holds that the basis of tender of pardon is not the extent of
culpability of the person to whom pardon is granted. But, the
principle is to prevent escape of offenders from punishment in
heinous offences for lack of evidence. Two principles would emerge
from the aforesaid elucidation of law by the Apex Court. One, the
extent of culpability qua any person seeking pardon has no
significance on the decision to grant pardon and two, offenders
should not get away with the crime or escape from punishment in
heinous offences for lack of evidence.
25. The learned senior counsel representing the petitioners
have contended that there are about 158 witnesses to be examined
who are listed by the prosecution itself. Out of them, there are 8
eyewitnesses to the incident. Based on the said list of witnesses
they would contend that there is no lack of evidence in the case at
hand to pin down the alleged offenders. Therefore, pardon should
50
not be granted, as it is contrary to the principle as laid down by the
Apex Court supra. The learned Additional Solicitor General would
contend that most of the witnesses are turning hostile, as they are
won over by accused No.15 including the wife of the deceased
herself. It is in such circumstances that other accused should not go
scot free due to lack of evidence. The evidence of accused No.1 who
is now turned as approver is of paramount importance.
26. The submission of the learned Additional Solicitor General
merits acceptance for the reason and notwithstanding the fact that
there are 158 witnesses, as this Court cannot telescope its
imagination, as to which witness would speak what, or they would
turn hostile in a later point in time and hold that accused No.1
should not be granted pardon. It is all a matter of trial and all these
submissions could emerge at the time of trial. The contention that
there are plethora of witnesses and there are eyewitnesses and,
therefore, accused No.1 should not be granted pardon runs counter
to the principle of grant of pardon itself. The soul of the statutory
provisions for grant of pardon is complete disclosure by any person
who is granted pardon. In the light of what is aforesaid, the issue is
51
answered holding that the extent of culpability cannot be the
reason or cannot be the foundation to consider grant of pardon.
Therefore, the contention urged, that accused No.1 who was earlier
the principal offender and therefore, pardon should not be granted,
is to be rejected.
Issue No.4:
(4) Whether the co-accused have a right to
challenge the order granting pardon to the
other accused?
27. The issue is, whether the co-accused have a right or say
or can object for grant of pardon to another accused. This Court
while answering earlier petition between the same parties, on
identical circumstances, in terms of its order dated 04-12-2024 had
framed a specific issue, as to whether co-accused have a right to
question the order of granting pardon. The issue is answered in the
following manner:
“…. …. ….
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.
52
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:
“(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.”
53
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
suomotu 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.”
(Emphasis supplied)
The aforesaid finding has become final. This Court had held that co-
accused will only have a right to question procedural illegality in
granting pardon and not the order granting pardon or its content.
Submissions are made that there is gross procedural aberration in
the case at hand, which is dealt with in issues 1 and 2 supra. In the
light of the reasons so rendered answering issues 1 and 2, in the
considered view of this Court, there is no procedural aberration in
the case at hand, for the co-accused to again challenge the order of
grant of pardon.
28. The only procedural violation projected is with regard to
following of procedure under the sub-sections of Section 306 pitting
it into Section 307. The said issue is dealt with in great detail and
54
the answer to the subject issue, for the reasons rendered therein is
that, co-accused, in the light of no procedural aberration, have no
right to call the order granting pardon in question. All these can be
urged before the concerned Court or in an appeal that may arise, it
arises at a later point in time. Exercise of jurisdiction under Section
482 of the Cr.P.C., in the order of grant of pardon, is only to
examine the procedural illegality and to consider whether failure of
justice would ensue from the impugned action. None of those are
present in the case at hand. Therefore, the contention does not
merit acceptance.
29. Submissions are made contending that there is no
changed circumstance for accused No.1 to seek pardon all over
again, that too within 48 hours of disposal of the earlier petition.
The order passed by this Court on 04-12-2024 is quoted in extenso
supra. It deals with change of circumstance as well. This Court has
clearly held that accused No.1 is projecting threat to him and his
family, as a circumstance that has necessitated him to turn as an
approver. The learned counsel Sri R.Nagendra Naik would contend
55
that the threat even today persists which was then there, yesterday
and today also persisting and it would loom large in future as well.
In the light of the finding of this Court which has become final that
threat can be a reason for change of circumstance as the threat
continues, in the case at hand, threat is projected to be continuing.
The learned counsel has produced abundant material to
demonstrate that threat has been continuous against accused No.1
and that persists even today. The threat is by accused No.9. The
material that is recorded by the concerned Court to prima facie
demonstrate threat has also been produced before this Court. The
order dated 22-10-2024 reads as follows:
“Case called out.
The learned 17th ACMM Court had furnished
the statement of accused No.1 Mr. Basavaraj
Muthagi 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.
56
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.
Office to communicate the above order to the
CBI authorities.
For considering the application, call on
26.10.2024."
The concerned Court records that Accused No.9 Ashwath had
telephonically called upon his friends and other persons and had
57threatened that he would ensure that accused No.1 will not appear
before the Court. Earlier the Court had observed that accused has
requested to provide proper security from Central Security Agencies
as he along with his family members are facing threat continuously.
With these observations and what is held by this Court on
04-12-2024, it can but be said that the cause of action continues,
as the threat continues. It can be a changed circumstance.
Moreover, on both the earlier occasions seeking pardon, there was
no answer on merits. It was on technicalities that shrouded, the
orders that were passed – one by the concerned Court rejecting the
application for pardon and the other by this Court finding fault with
recording of evidence under Section 164 of the Cr.P.C. Therefore,
for the first time there has been proceeding in accordance with law.
Hence, there is no merit in the submissions of the learned counsel
for the petitioners, that there is no changed circumstance in real
time, to file another application seeking pardon.
30. It is further submitted that the order does not indicate
that pardon is granted. While there may be change in choice of
language by the concerned Court, that does not mean that the
58
purport of the order would change. Pardon is granted. The person
who is granted pardon turned as approver. He has examined
himself and his examination-in-chief is also concluded. Putting the
clock back to the language used in the order is only a ruse to drag
the proceedings further. There is no merit in the said submission.
Both the learned counsel for the petitioners and the respondents
have relied on plethora of judgments to buttress their respective
submissions. All those judgments except the ones considered
hereinabove, would not become applicable to the facts of the case
at hand or are on the same principle. Therefore, they are not noted
and considered.
31. This Court, while disposing of the earlier petition, had
clearly indicated that the trial should get concluded within two
months, as it was a trial of the year 2015. The order was passed on
04-12-2024. Not two, but four months have passed by. Therefore,
the concerned Court shall make all endeavour to conclude the trial,
in a time frame, as what remains is examination of witnesses.
59
32. For the aforesaid reasons, the petitions lacking in
merit stand rejected.
However, the concerned Court is directed to conclude the trial
within four weeks from the date of receipt of a copy of this order.
SD/-
(M.NAGAPRASANNA)
JUDGE
bkp
CT:MJ
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