The complex process of tendering pardon to an approver continues to baffle the Bench and the Bar alike. It is more due to want of proper comprehension than due to lack of procedural clarity that no uniform practice seems to be in vogue with regard to the judicial act of tendering pardon to an accomplice. My humble endeavour through this article is to familiarize the legal fraternity regarding the intricacies of this seemingly simple exercise. The provisions of law pertaining to the above topic are to be found in Sections 306 to 308 of the Code of Criminal Procedure, 1973 (“Cr.P.C.” for short). Those provisions of law are reproduced hereunder:-
“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.
(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-secti9on (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.
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 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 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.”
(A). WHO IS AN ACCOMPLICE
(B). WHO IS AN APPROVER ?
An “approver” is a person who offers proof. He is a criminal who confesses and testifies against one or more accomplices. An approver is thus a person, who while confessing the felony committed by himself accuses others to be guilty of the same crime. Approver’s confession is called “relative confession” which involves a confession of guilty coupled with an accusation of guilt against another person as a participant in the crime. If the accusation against the other person was proved, then the accusing defendant was pardoned. If not, the accusing defendant was convicted on his own confession. (Vide State v. Willis, 41 A. 820, 825 and Black’s Law Dictionary). While every approver is an accomplice, every accomplice need not necessarily be an approver. An accomplice who is prepared to confess his own guilt as well as the guilt of his associate in crime, is an approver.
(C). THE OBJECT OF TENDERING PARDON TO AN ACCOMPLICE
The first and third category of cases need not necessarily be offences punishable under the Indian Penal Code.
A person may be charged in respect of the same transaction or act, under the Penal Code and under some other Act . Eg: The Prevention of Corruption Act. The pardon would operate in respect of all offences pertaining to that transaction. However, the pardon will not operate in respect of a transaction or act entirely unconnected with the offence in respect of which pardon has been granted. (Vide Dipesh Chandak v. Union of India (2004) 8 SCC 511). Section 5 of the Official Secrets Act, read with Section 120 B of IPC, does not fall within any of the three categories of offences mentioned in Section 337 (1) of the old Code (Section 306 Cr.P.C.) where pardon can only be tendered. (Vide State v. Hiralal Girdharilal Kothari – AIR 1960 SC 360).
COURT WHICH CAN TENDER PARDON
(i) by the Chief Judicial Magistrate (CJM) or a Metropolitan Magistrate (MM). at any stage of the investigation, inquiry or trial .
Note: Here the inquiry or trial need not be before the CJM or MM . (Vide A Devendran v. State of TN – (1997 =) 11 SCC 720).
(ii) By the Magistrate of the first Class (JFCM) Inquiring into or trying the offence at any stage of the inquiry or trial before such JFCM
Note: The Magistrate cannot exercise this function at the stage of investigation. The CJM/MM alone can tender pardon during the stage of investigation of a case. (Vide A Devendran v. State of TN – (1997 ) 11 SCC 720).
A careful reading of Section 306(1) Cr.P.C. will indicate that while in the case of a CJM, what the said provision emphasises is “the Chief Judicial Magistrate”, whereas in the case of an MM the said provision mentions only “a Metropolitan Magistrate”. The legislative intent seems to be that in every district where there are additional CJMs also, the power to tender pardon is given only to the CJM appointed under Section 12(1) of Cr.P.C. and not an additional CJM appointed under Section 12(2) Cr.P.C. But in a metropolitan area as declared under Section 8 Cr.P.C, the power of tendering pardon can be exercised by any Metropolitan Magistrate appointed under Section 16 Cr.P.C. and he need not be the Chief Metropolitan Magistrate or additional Chief Metropolitan Magistrate appointed under Section 17 Cr.P.C.
ii) Post commitment pardon
If the pardon is tendered after commitment of the case, then Section 307 Cr.P.C. empowers the Court to which the case is committed, to tender pardon to an approver on the same condition as is stipulated in Section 306 (1) Cr.P.C. The Court at this stage need only comply with the condition under Section 306 (1) Cr.P.C. and is not obliged to comply with the requirements of Section 306 (4) Cr.P.C. (Vide paragraphs 25 and 27 of Narayan Chetanram Chaudhary v. State of Maharashtra (2000) 8 SCC 457 = AIR 2000 SC 3352). This means that if the pardon has been tendered at the post-committal stage, the requirement of mandatory examination of the approver under Section 306 (4)(1)(a) Cr.P.C. has no application. After the tender of pardon it is enough that the approver is examined as a witness during the trial of the case. After committal of the case to the Court of Session, the Sessions Judge alone can grant pardon to the approver. The Sessions Judge has no jurisdiction at that stage to direct the committing Magistrate or any other Magistrate to grant pardon. Vide A.Devendran v. State of TN (1997) 11 SCC 720. It is relevant to note that the pre-commitment pardon is tendered only by Magistrates and thereafter the mandatory examination of the approver is also done by the Magistrate taking cognizance of the offence. The Special Judge and the Sessions Judge is empowered to tender pardon to an approver only at the post- commitment stage.
COURT CANNOT SUO MOTU GRANT PARDON
The various steps to be taken
[ The purpose behind the recording of confession of the would be approver is to enable the pardon tendering Magistrate to reach the requisite satisfaction that the proposed accomplice is a fit person to be declaimed as an approver. For this purpose the self-serving 161 statement recorded by the Police may not be enough. It should be borne in mind in this context that the judicial act of tendering pardon to an accomplice is amenable to judicial scrutiny by a superior Court which also may have to be satisfied regarding the reason for tendering pardon since that is a statutory requirement to be fulfilled and recorded under Section 306 (3) (a) Cr.P.C. by the Magistrate tendering pardon.]
On receipt of the aforesaid requisition, the CJM will entrust a JFCM (preferably one who may not try or commit the case) to record the confession of the accomplice.
b) The delegate JFCM will record the confession of the accomplice under Section 164 Cr.P.C. after complying with safeguards and after giving the accomplice the necessary time for reflection. The confession of the proposed approver shall be recorded in the manner provided under Section 281 Cr.P.C. (vide Section 164(4) Cr.P.C. As enjoined by the Criminal Rules of Practice ( Rule 70 (6) of the Kerala Rules) the recording of such confession should ordinarily be in open Court and during court hours.
[This may be because the confession of an accused does not affect any other person. But in the case of a victim or a witness or even an accused whose statement is recorded under Section 164 Cr.P.C, such recording will have to be done in camera. (vide the decision of Justice Abraham Mathew of the Kerala High Court in Varghese V. Central Bureau of Investigation – 2015(3) KLT 15=ILR 2015(3) Kerala 398].
c) Unlike in the case of a witness or victim, no oath is to be administered to an accused while recording a confession (Vide Section 164 (5) Cr.P.C.).
d) The recorded confession statement shall be shown and read over to the approver and it shall thereafter be signed by the approver and the Magistrate (Vide Sections 164 (4) and (5) and 281 (4) and (5) Cr.P.C.)
e) Thereafter the Police may move the CJM for tendering pardon to the chosen accomplice.
f) The CJM will call for the investigation files including the confession recorded under Section 164 Cr.P.C. If satisfied that pardon can be tendered to the accomplice, the CJM will record a statement from the accomplice in order to ascertain as to whether he is willing to comply with the condition under Section 306(1) Cr.P.C. (Section 308(2) Cr.P.C. indicates that this statement by the CJM is also to be recorded under Section 164 Cr.P.C.)
g) Every Magistrate including the CJM who tenders a pardon to an approver under Section 306 (1) Cr.P.C. shall record –
(Vide Section 306 (3) Cr.P.C.)
[A close analysis of the provisions of Section 306 Cr.P.C. would indicate that the function of the Magistrate tendering pardon is over when
The moment an accused is pardoned he is presumed to have been discharged and he becomes a prosecution witness. No formal order of discharge is required. (Vide A.J. Peiris v. State of Madras – AIR 1954 SC 616).]
Section 306(1) Cr.P.C. does not require the Magistrate recording the statement for the purpose of tendering pardon, to examine the accomplice as a witness . That examination is to be done by the Magistrate taking cognizance of the offence] which expression would certainly include a Magistrate to whom committal proceeding is transferred. (See para 11 of R.T. 5/1988 and connected Crl. Appeals – Kurian v. State - 1989 (1) KLT SN 37 rendered by Justice U.L. Bhat ).
But it will have to be left to the discretion of the other accused persons to opt for exercising their right to cross-examine the approver at this stage. In Ashokan L.S V. State of Kerala 2005 (3) KLT 770 = ILR 2005(3) Kerala 567 a Full Bench of the Kerala High Court took the view that the other accused persons do not have any right to cross-examine the approver during his examination under Section 306(4)(a) Cr.P.C. and consequently if the approver is dead by the time the case comes up for trial, the previous testimony of the approver under Section 306 (4) (a) will not be admissible under Section 33 of the Indian Evidence Act. If, on the contrary, the other accused persons have a right of cross-examination, then the previous testimony of the approver can be admitted in evidence by recourse to Section 33 of the Evidence Act.
(Vide S.306 (5) (a)(i)Cr.P.C.)
if the offence is triable exclusively by the Special Court
(Vide Sec. 306 (5)(a)(ii) Cr.P.C.
(Vide Sec. 306 (5)(b) Cr.P.C.
APPROVER NOT COMPLYING WITH THE CONDITION OF PARDON