Delhi High Court Holds Co-Accused Has No Right to Be Heard Before Grant of Pardon to Approver, Dismisses Recall Application in ED Money Laundering Case
Facts
The Delhi High Court was dealing with an application filed by M/s NKG Infrastructure Ltd. seeking recall of the Court’s earlier order dated 03.12.2024, by which accused Tajinder Pal Singh had been granted the status of an approver and the Special Judge’s order dated 22.08.2024 refusing pardon had been set aside. The proceedings arose from an ECIR registered by the Directorate of Enforcement on the basis of a CBI predicate offence involving allegations of cheating, conspiracy, and corruption in relation to a Delhi Jal Board tender. The allegation was that NKG Infrastructure Ltd. had obtained a tender for supply, installation, testing and commissioning of electromagnetic flow meters on the basis of a false performance certificate, and that proceeds of crime were generated and shared.
Tajinder Pal Singh had moved an application under Sections 306 and 307 of the CrPC seeking pardon. NKG Infrastructure Ltd., being a co-accused, had earlier sought impleadment in the pardon proceedings before the Special Judge, but that application was rejected on 30.07.2024. Thereafter, the Special Judge refused pardon on 22.08.2024. Tajinder Pal Singh challenged that refusal before the High Court, and the High Court granted him approver status on 03.12.2024. NKG Infrastructure Ltd. then filed the present application seeking recall of that order on the ground that it was passed without hearing the co-accused.
Issues
- Whether the Delhi High Court could recall its earlier order dated 03.12.2024 granting approver status to Tajinder Pal Singh despite the bar under Section 362 CrPC.
- Whether a co-accused has a legal or statutory right to be heard before an order granting pardon under Sections 306 and 307 CrPC is passed.
- Whether non-hearing of the co-accused amounted to violation of principles of natural justice.
- Whether NKG Infrastructure Ltd. could re-agitate the issue of its right to be heard after its impleadment application had already been rejected by the Trial Court and that order had not been challenged.
Petitioner’s Arguments
NKG Infrastructure Ltd. argued that the High Court’s order dated 03.12.2024 was liable to be recalled because it was passed without hearing a necessary and affected party. It submitted that Section 401(2) CrPC mandates that no order prejudicial to an accused or any other person should be passed in revision without giving such person an opportunity of hearing.
It was further argued that the order granting approver status to Tajinder Pal Singh caused serious prejudice to the co-accused because it changed the position of the approver and affected the defence of the remaining accused. NKG contended that the order was vitiated by breach of natural justice and was therefore a nullity.
NKG also submitted that Section 362 CrPC would not bar recall in the present case because it was not seeking a review on merits, but only correction of a procedural defect. It relied on judgments recognizing the distinction between substantive review and procedural recall where an order has been passed without hearing an affected party.
Respondent’s Arguments
The Directorate of Enforcement opposed the application and argued that it was not maintainable. It submitted that NKG Infrastructure Ltd. had already filed an application for impleadment before the Trial Court, which was rejected by a detailed order dated 30.07.2024. Since that order was never challenged, it had attained finality.
The ED further argued that grant of pardon is a matter between the Court, the prosecution, and the accused seeking pardon. A co-accused has no right to oppose or be heard at the stage of deciding whether pardon should be granted. The co-accused’s rights are protected at trial, where the approver can be cross-examined.
Tajinder Pal Singh also opposed the recall application and submitted that once a final order had been passed, the Court became functus officio and could not alter or review the order except for clerical or arithmetical errors. He also argued that the co-accused had no right to be heard at the stage of pardon proceedings.
Analysis of the Law
The Court examined the scope of Section 362 CrPC and held that criminal courts cannot review or alter final judgments on merits. However, the Court clarified that there is a distinction between substantive review and procedural recall. While substantive review is barred, procedural recall may be permissible where an order was passed without jurisdiction, without hearing a necessary party, or in violation of principles of natural justice.
The Court held that Section 482 CrPC cannot be used to do what is expressly prohibited by Section 362 CrPC. However, where the application seeks correction of a procedural lapse and not reconsideration on merits, the Court can examine whether recall is legally permissible.
On the second issue, the Court analysed Sections 306 and 307 CrPC and held that the scheme of these provisions does not give every co-accused a right to be heard before pardon is granted. The grant of pardon does not by itself determine the guilt of the co-accused. The approver’s evidence becomes relevant only during trial, and the co-accused gets full opportunity to cross-examine the approver at that stage.
Precedent Analysis
The Court relied on State of Punjab v. Davinder Pal Singh Bhullar to reiterate that recall of an order is permissible where the order was passed in violation of natural justice, and that recall is distinct from review.
The Court also relied on S.C. Garg v. State of U.P. to hold that principles similar to res judicata can apply in criminal proceedings. Since NKG Infrastructure Ltd.’s impleadment application had already been rejected by the Trial Court on merits and was not challenged, the same issue could not be indirectly reopened through a recall application.
The Court relied on Ashok Kumar Aggarwal v. CBI, which was affirmed by the Supreme Court in CBI v. Ashok Kumar Aggarwal, to hold that the right of a co-accused in relation to an approver arises only at the stage of trial. At the stage of grant of pardon, the matter is primarily between the Court, the prosecution, and the accused seeking pardon.
The Court also referred to Gurvinder Singh Bhatia v. CBI, where it was held that a co-accused has no legal right to raise a grievance against an order granting pardon. The Court further noted that judgments such as Yadav Singh, N.K. Amin, and Senthamarai support the position that a co-accused has no right to be heard at the stage of considering pardon.
The applicant’s reliance on Sunil Batra and Prabhat Ranjan Sarkar was rejected because those cases arose under the old CrPC, 1898, whereas the present case was governed by the scheme of Sections 306 and 307 of the CrPC, 1973.
Court’s Reasoning
The Court first held that it had the power to examine whether its earlier order required recall on the ground of procedural impropriety or violation of natural justice. Therefore, the recall application could not be rejected merely by invoking Section 362 CrPC.
However, on merits, the Court held that there was no procedural illegality because the co-accused had no statutory or legal right to be heard before grant of pardon. The Court observed that pardon proceedings do not decide the guilt of the other accused and do not cause immediate legal prejudice to them. Their right is preserved at trial, where they can cross-examine the approver and challenge the credibility of his testimony.
The Court also found that NKG Infrastructure Ltd. had already raised the issue of being heard in the pardon proceedings before the Trial Court. The Trial Court had rejected that application by a reasoned order, and NKG had allowed that order to attain finality. Therefore, NKG could not indirectly reopen the same issue through a recall application before the High Court.
Conclusion
The Delhi High Court held that although a criminal court may recall an order in cases of procedural impropriety or violation of natural justice, no such violation had occurred in the present case because a co-accused has no legal or statutory right to be heard before pardon is granted to another accused under Sections 306 and 307 CrPC.
The Court concluded that the co-accused’s remedy lies at the stage of trial, where the approver can be cross-examined and his credibility can be tested. Accordingly, the recall application filed by NKG Infrastructure Ltd. was dismissed.
Case Details
Case: Tajinder Pal Singh v. Directorate of Enforcement; application by M/s NKG Infrastructure Ltd.
Court: Delhi High Court
Case Number: CRL. REV. P. 1283/2024 with CRL. M.A. 17144/2025, CRL. M.A. 17145/2025 and CRL. M.A. 17146/2025
Judge: Justice Jasmeet Singh
Date: 04 July 2026
Result: Recall application dismissed; co-accused held to have no right to be heard before grant of pardon to approver.
