S.306/307 CrPC | Pardon Can Be Tendered To Any Person Privy To The Offence, Not Only The Accused: Kerala High Court

A Division Bench of Justice K. Vinod Chandran and Justice C. Jayachandran opined so after observing that the language employed in Sections 306 and 307 is not 'an accused person' but 'any person', which implies that the person to whom pardon is to be tendered need only be 'directly or indirectly concerned in or privy to' the offence.

"Having regard to the terminology and expressions employed in Sections 306 and 307 that the person to whom pardon is to be tendered need not necessarily be an accused; rather it is not a sine qua non. The fact that in many an occasion, pardon is being granted to an accused person, is no indication for a conclusion that such person should always be arraigned as an accused person."

The Court added that a conscious non-employment of the term "accused person" in Sections 306 and 307 abundantly explains that the person neither has to be an accused person nor requires to be arraigned as an accused in the final report.

The Bench further held that a Special Court constituted under the National Investigation Agency Act can invoke the powers under Section 306 to grant pardon to an accused at the post cognizance stage.

A Srilankan fishing boat with huge quantities of narcotic drugs, AK-47 rifles and ammunition was seized by the Narcotic Control Bureau. A case was registered against the six Srilankan nationals found onboard and they were accordingly arrested. However, in the custodial interrogation, the role of the appellant, a member of the proscribed organisation Liberation Tigers of Tamil Eelam (LTTE), was revealed and he was soon arrested.

The statements of the accused under S.164 CrPC were recorded by the Judicial First Class Magistrate. Later, the NIA sought tender of pardon to certain accused pointing out that they were neither arraigned as accused nor as witnesses in the final report. The NIA Special Court took cognizance of the case and allowed NIA's application. The appellant moved the High Court challenging the same.

The Court initially examined multiple precedents and found that the person in whose favour pardon is sought to be tendered should be supposed or considered to have been concerned in or privy to the offence. The expression 'supposed to have been' is an elastic one, providing ample room for the person concerned to have a lesser role. 

"Again, the person to whom pardon is to be tendered, need only be "directly or indirectly concerned in or privy to" the offence. The expression "directly or indirectly" indicates the nature of such person's involvement in the crime, of which, the latter tends to be less incriminating."

The appellant's argument that a Special Court lacks power under Section 306 to entertain an application for tender of pardon preferred during the investigation stage was also repelled.

Before concluding, the Court also clarified that a co-accused has no locus standi to challenge an order for considering the tender of pardon sought by the investigating agency.

Advocate Sangeetha Lakshmana appeared for the appellant and ASG S.Manu represented NIA in the matter.

Case Title: Suresh Raj v. National Investigation Agency

Citation: 2022 LiveLaw (Ker) 291

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