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Tendering Pardon to an Accomplice

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.

  1. Power to direct tender of pardon:- At any time after commitment of a case but before the 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.
  1. Trial of a person not complying with conditions of pardon:– (1) Where, in regard to a person who was accepted a tender of pardon made under section 306 or section 307, the Public Prosecutor certifies that in his opinion such a person has, either by willfully 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 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

  1. The Cr.P.C. does not define the expression “accomplice” and does not employ the word “ approver” in any of the above provisions. But the word accomplice is to be found in Section 133 and Illustration (b) to Section 114 of the Indian Evidence Act, 1872 which, however, does not define the said word . An “accomplice“ is an associate in wrong or crime whether as principal or accessory. Black’s Law Dictionary defines an “accomplice” as a person who is in any way involved with another in the commission of a crime, whether as a principal in the first or second degree or as an accessory. It proceeds to elucidate further by saying that a person is an accomplice of another in committing a crime, if, with the intent to promote or facilitate the commission of the crime, he solicits, requests or commands the other person to commit it or aids the other person in planning or committing it. In M.O. Shamsudhin v. State of Kerala (1995) 3 SCC 351 it was observed by the Apex Court that the word “accomplice when used in its ordinary sense means and signifies “a guilty partner or associate in a crime”. (See also Shankar v. State of TN – (1994) 4 SCC 478). An accomplice is a person who participates in the commission of the actual crime charged against an accused. He is to be a particeps criminis (sharer of crime). (Vide R.K. Dalmia v. Delhi Administration – AIR 1962 SC 1821 – 3 Judges).

(B). WHO IS AN APPROVER ? 

  1. The Cr.P.C. does not use the word “approver” in any of the provisions.

          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 

  1. Since many a times the crime is committed in such a manner that no clue or any trace is available for its detection, pardon is granted for apprehending the other offenders so that incriminating objects and other evidence, which is otherwise unobtainable could be unearthed. The dominant object behind the Legislature introducing Section 306 Cr.P.C and confining its operation to the class of cases mentioned therein, was to ensure that the offenders of heinous and grave crimes, do not go unpunished. The basis of tender of pardon is not the magnitude of the culpability of the person to whom pardon is granted but prevention of the escape of the offenders from punishment in heinous crimes due to lack of evidence. There can, therefore, be no objection against tender of pardon to an accomplice simply because he in his confession does not implicate himself to the same extent as the other accused because all that Section 306 requires is that pardon may be tendered to any person believed to be involved directly or indirectly in or privy to an offence. (Suresh Chandra Bahri v. State of Bihar – (1995) Supp. (1) SCC 80 = AIR 1994 SC 2420). The salutary principle of tendering pardon to an accomplice is to unravel the truth in a grave offence so that guilt of the other accused persons concerned in the commission of crime could be brought home. (Vide paragraph 15 of State of Maharashtra v. Abu Salem Abdul Kayyum Ansari – (2010) 10 SCC 179).
  1. METAMORPHOSIS OF THE ACCOMPLICE INTO A PROSECUTION WITNESS AND HIS REVERSION 
  1. When an accused is granted pardon under Section 306 Cr.P.C. he ceases to be an accused (or stands discharged as an accused) and becomes a witness for the prosecution. So long as the prosecution does not certify under Section 308 (1) Cr.P.C. that he has failed to comply with the conditions of pardon, he continues to be a prosecution witness and the prosecution is under an obligation to examine him as a witness both in the committing court as well as in the trial court (Vide State (Delhi Admn.) v. Jagjit Singh (1989) suppl. (2) SCC 770 = AIR 1989 SC 598; Paragraphs 17 and 21 of State of Maharashtra v. Abu Salem Abdul Kayyum Ansari – (2010) 10 SCC 179. The proviso to Section 132 of the Indian Evidence Act clearly protect such an approver from being prosecuted on the basis of the answers given by him in a criminal proceeding which tend to criminate him directly or indirectly. In view of this provision he need not be apprehensive of the fact that his evidence as approver will be used against him in other criminal cases where he figures as an accused (Vide State v State (Delhi Admn.) v. Jagjit Singh (1989) suppl. (2) SCC 770 = AIR 1989 SC 598). Once the pardon granted to the approver stands forfeited on the certificate issued by the Public Prosecutor under Section 308 (1) Cr.P.C., the approver is relegated or reverted to the position of an accused and he does not thereafter, remain a witness for the prosecution. In such circumstances, he is liable to be tried separately and the evidence, if any, given by him has to be ignored in toto and it does not remain to be legal evidence for consideration in the trial against the co-accused. There is no question of the approver who has forfeited the protection extended to him, being further examined in the case and, therefore, no occasion arrises for the defence to cross-examine him. But his evidence may be used against him in the separate trial where he gets an opportunity to show that he had complied with the condition of pardon . (Vide para 28 of State of Maharashtra v. Abu Salem Abdul Kayyum Ansari – (2010) 10 SCC 179). 
  1. OFFENCES IN RESPECT OF WHICH PARDON CAN BE TENDERED 
  • The three categories of offences in respect of which pardon can be tendered to an accomplice are :-
  • Offences exclusively triable by a court of Session
  • Offences exclusively triable by a Special Judge under the Prevention of Corruption Act, 1988
  • Offences punishable with imprisonment which may extent to 7 years or with a more severe sentence
  •            (Vide Section 306 (2) Cr.P.C. )

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

  • Pre- commitment pardon
  • Under Section 306 Cr.P.C. pardon can be tendered and its acceptance , if any, can be recorded –

(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).

OR

(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

  1. Eventhough on a reading of Sections 306 and 307 Cr.P.C., it would appear that the power vested in the Court to actually grant pardon to an approver is a suo motu power, obviously the Court can have no interest whatsoever in the outcome of the case nor can it take a decision for and on behalf of the prosecution as to whether any particular evidence is required or not so as to ensure conviction of the accused. That is really the prosecution’s problem. Hence, it is for the prosecution to ask the court that a particular accused, out of several, may be tendered pardon. Even in a case where an accused person directly applies to the court for tendering pardon to him, the Court must refer the request to the prosecuting agency. The proper course for the Court 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 interest of a successful prosecution of the other offenders whose conviction may not be easy without the approver’s testimony, it will indubitably agree to the tendering of pardon. The Magistrate or the Judge must not take upon himself the task of determining the propriety of tendering pardon to a particular accused person. (Vide Lt. Commander Pascal Fernandez v. State of Maharashtra – AIR 1968 SC 594 ; Jasbir Singh v. Vipinkumar Jaggi – (2001) 8 SCC 289 = AIR 2001 SC 2734; Paras 20,21 of CBI v. Ashok Kumar Aggarwal – (2013) 15 SCC 222).
  1. PROCEDURE FOR TENDERING PARDON TO AN ACCOMPLICE AT THE PRE-COMMITMENT / PRE-MAKE OVER STAGE.
  1. The initial procedure for tendering pardon to an accomplice at the stage of investigation of a case and at the stage of inquiry or trial before a Magistrate, is the same. While at the stage of investigation the initiation in this behalf may come from the investigating agency alone, at the stage of inquiry or trial before a Magistrate the initiation may be by the prosecuting agency with or without consulting the investigating agency

The various steps to be taken

  1. After recording the statement of the accused (potential approver) under Section 161 Cr.P.C., the Police will explore the feasibility of making him an approver. The Police will then make a requisition to the CJM for recording the confession of the accused accomplice under section 164 Cr.P.C.

[ 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 –

  1. his reasons for tendering pardon
  2. whether the tender was or was not accepted by the approver

(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 

  1. he tenders pardon, and
  2. records the reasons for so doing, and
  • further records whether the tender was or was not accepted. Thereafter there is nothing further for that Magistrate to do. (Vide para 10 of State of Kerala v. Monu Surendran – 1990 (1) KLT 53 DB – U.L. Bhat , J). 

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).]

  1. h) The law does not require the Magistrate tendering pardon to an accomplice and recording a finding under Section 306(3) Cr.P.C, to examine the approver as a witness under Section 306(4) (a) Cr.P.C. In case the accomplice has accepted the condition specified under Section 306(1) Cr.P.C, then he will have to be examined as a witness under Section 306(4)(a) Cr.P.C. before the appropriate Magistrate entitled to take cognizance of the offence and try the case or commit it for trial.

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 ).

  1. MANDATORY EXAMINATION OF THE APPROVER BEFORE THE COMMITTING COURT AND THE TRIAL COURT UNDER SECTION 306 (4) (a) Cr.P.C
  2. When the tender of pardon has been accepted by the approver and the Magistrate has recorded the same under Section 306 (3) Cr.P.C., the approver undergoes a transformation in his status. He is discharged of his position as an accused. (I.e. he ceases to be an accused) and becomes a prosecution witness (Vide State (Delhi Admn.) v. Jagjit Singh (1989) suppl. (2) SCC 770 = AIR 1989 SC 598: Para 21 of State of Maharashtra v. Abu Salem Abdul Kayyum Ansari – (2010) 10 SCC 179). If the tender of pardon has been accepted by the approver, then he should be examined as a witness both in the court of the Magistrate taking cognizance of the offence and in the subsequent trial, if any, in view of Section 306 (4) (a) of Cr.P.C. It is pertinent to bear in mind that the mandatory examination of the approver under Section 306 (4)(a) Cr.P.C. at the pre-commitment stage, is insisted only if the Court taking cognizance of the offence is that of a Magistrate and not a Sessions Judge or a Special Judge under the P.C.Act. 

Illustrations

  • If the case is triable by JFCM and is pending investigation, then pardon to an approver can be tendered only by a CJM/MM. But the CJM/MM can delegate the function of recording the confession of the approver under Section 164 Cr.P.C. to the JFCM. The CJM/MM can, thereafter when requisitioned by the Police, consider the statement recorded by the JFCM and enter a finding in terms of Section 306 (3) Cr.P.C. This power of the CJM/MM to tender pardon can be exercised by him even when the case which is triable by the JFCM is pending inquiry or trial before the JFCM. After recording the finding under Section 306 (3) Cr.P.C. the CJM/MM should forward to the JFCM the entire records including the finding under Section 306 (3) Cr.P.C. The examination of the approver as a witness under Section 306 (4) (a) Cr.P.C. would be conducted by the JFCM taking cognizance of the offence.
  • Similarly, the CJM/MM can exercise the power of tendering pardon in a case triable by the Special Judge under the PC Act either pending investigation or at a stage before the Special Judge takes cognizance of the offence . (Vide Anantha Narayana Bhatt v. CBI – 2009 (2) KLD 750). Since the Special Judge is not a Magistrate for the purpose of Section 306 Cr.P.C. there is no question of the approver being examined under Section 306 (4)(a) Cr.P.C thereafter. But the CJM cannot tender pardon to an accomplice during the stage of trial before the Special Judge although Section 306 (1) Cr.P.C would seem to indicate otherwise. After the stage of taking cognizance the Special Judge himself can tender pardon under Section 5 (2) of the P.C. Act, 1988 .
  • If the CJM/MM is the trial Court and the case is at the stage of investigation, then the tendering of pardon under Section 306 (1) Cr.P.C., recording of finding under Section 306 (3) Cr.P.C. and the examination of the approver under Section 306 (4)(a) Cr.P.C. etc. will have to be conducted by the CJM/MM who has to thereafter commit the case for trial to the Sessions Court by invoking the power under Section 306 (5)(a)(i) read with Section 323 Cr.P.C. Of course, here also the function of recording the confession of the approver under Section 164 Cr.P.C. can be delegated to the JFCM. The rest of the functions including the recording of the finding under Section 306 (3) Cr.P.C. will have to be done by the CJM/MM.
  • Where the case is triable by the JFCM and the tender of pardon is to be administered while inquiring into or trying the case, then the tender of pardon under Section 306 (1) Cr.P.C. after recording the statement of the approver, recording of the finding under Section 306 (3) Cr.P.C. and the examination of the approver under Section 306 (4)(a) Cr.P.C. etc. will have to be made by the JFCM himself. But the initial recording of confession under Section 164 Cr.P.C. at the behest of the Police will have to be done by another Magistrate. After examining the approver under Section 306(4)(a) Cr.P.C. the JFCM will have to make over the case to the CJM for trial under Section 306(5)(b)Cr.P.C.
  1. WHETHER THE ACCUSED HAVE A RIGHT TO BE PRESENT AND TO CROSS-EXAMINE THE APPROVER DURING HIS EXAMINATION UNDER SECTION 306 (4)(a) Cr.P.C. ?
  2. When the approver is examined as a witness under Section 306(4)(a) Cr.P.C. the other accused persons in the case do not have any right to be present or to cross-examine the approver in all situations. The object of Section 306 (4)(a) Cr.P.C. is to provide an opportunity to the other accused to show to the Court during trial that the approver’s evidence is untrustworthy in view of the contradictions or improvements made by him in his testimony given during trial . The proceeding which takes place before the Magistrate under Section 306 (4)(a) Cr.P.C. is neither an inquiry nor a trial (Vide Ranadhir Basu v. State of West Bengal (2000 (3) SCC 161 = AIR 2000 SC 908; State of H.P. v. Surinder Mohan – (2000) 2 SCC 396 = AIR 2000 SC 1862; Ashokan L.S. v. State of Kerala – 2005 (3) KLT 770 (FB). The examination of the approver under Section 306 (4)(a) Cr.P.C. can be even before process is issued to the accused and at that stage no inquiry even is involved. Hence, there is no question of the accused being permitted to cross-examine the approver. The observations in this behalf made by the Kerala High Court (Justice Padmanabhan) In re Chief Judl Magistrate, Trivandrum -1988 Cri LJ 812 were noted with approval by the Supreme Court in State of H.P v. Surinder Mohan – (2000) 2 SCC 396 = AIR 2000 SC 1862. It is interesting to note that the very same verdict reported in 1988 Cri LJ on this point was relied on by a Division Bench of the High Court of Kerala in Kurian V. State – 1989 (1) KLT SN 37 (R.T No. 5 of 1988 and connected appeals) to hold that the other accused persons in a murder case have no right to cross – examine the approver during his examination under Section 306(4)(a) Cr.P.C before the committal Magistrate. In that case the pardon was tendered by the CJM at the stage of investigation and the approver was examined before the committal Magistrate (JFCM). But another Division Bench in State of Kerala V. Monu Surendran- 1990(1) KLT 53 (mark list scandal case triable exclusively by a JFCM), the very same Judge (Justice U.L. Bhat) who had rendered the verdict in Kurian’s case, observed in paragraph 16 that the decisions in 1988 Cri LJ 812 and Kurian’s case were per incurium and that when the approver is examined as a witness before the Magistrate taking cognizance of the offence, the accused must be given an opportunity to cross-examine the approver. In the mark list scandal case also the approver was tendered pardon by the CJM during the stage of investigation. Thereafter, instead of the JFCM, the CJM himself examined the approver under Section 306 (4) (a) Cr.P.C pursuant to the Police filing charge sheet before the CJM. Thereafter the CJM committed the case to the Sessions Court Under Section 306 (5) (a)(i) Cr.P.C. The Division Bench set aside the committal order of the CJM and directed the CJM to record the evidence of the approver after giving an opportunity of cross-examination to the other accused persons. In Surinder Mohan’s case the Apex Court after unequivocally holding that the accused do not have, at the time of recording the approver’s evidence at the pre-committal stage, any right to cross-examine the approver observed that if a belated contention of denial of an opportunity to cross-examine the approver is raised, Section 464 Cr.P.C. would come into operation. Again in Suresh Chandra Bahri (supra) it was held that eventhough the examination of the approver under Section 306 (4)(a) Cr.P.C. is mandatory and its non-compliance would render the committal order illegal, the said defect can be rectified later and then no prejudice can be said to be caused to the accused and consequently, the trial cannot be said to be vitiated on that account. (Vide paras 30 and 33). Observing that Section 306 (4) Cr.P.C. does not mandate that the approver must be examined in open court in the presence of the accused or that the accused must be given an opportunity to cross-examine the approver it has been held that the Magistrate can even examine the approver in his Chamber. (Vide Ranadhir Basu v. State of West Bengal (2000 (3) SCC 161 = AIR 2000 SC 908). Thus, the preponderance of judicial opinion seems to be that the other accused persons have no right to be present or cross-examine the approver during his examination under Section 306(4) (a) Cr.P.C. Majority of those decisions do not advert to the fact as together the examination of the approver is at the pre-process, post-process or after the appearance of the other accused persons in response to the process issued to them. But, with due respect, it is submitted that the question as to whether the other accused persons have a right to cross-examine the approver, will depend upon the stage at which the Magistrate taking cognizance of the offence, examines the approver under Section 306(4)(a) Cr.P.C. If it is prior to the summoning of the accused, then they have no right to cross-examine the approver. If on the contrary, examination of the approver under Section 306(4)(a) Cr.P.C is after the summoning and appearance of the accused, then they definitely should be allowed to cross-examine the approver. The position laid down in some of the reported decisions in which the right of cross-examination is denied to the accused should be made applicable only in those cases where tender of pardon is made and accepted at the stage of investigation. Where the tender of pardon is accepted at the stage of inquiry or trial either by the CJM or by the JFCM after the accused have been summoned, it may not be correct to say that the accused have no right to cross-examine the approver during his examination under Section 306 (4)(a) Cr.P.C. In other words, it is only in those cases where the tender of pardon takes place during the stage of investigation and the approver is thereafter examined under Section 306 (4)(a) Cr.P.C. in the Court of the Magistrate taking cognizance of the offence and that too before the issuance of process, could it probably be argued that the accused have no right of cross-examination. When once the accused are before Court, pursuant to the summons issued to them, why should they be mute spectators having no right to participate in the proceedings ? The situation is some what analogous to Section 244 Cr.P.C. where in a warrant case instituted otherwise than on a police report , the Magistrate takes all evidence in the presence of the accused at the post-process but pre-charge stage. In Ajoy Kumar Ghose v. State of Jharkhand and another (2009) 14 SCC 115 and Harinarayan G. Bajaj v. State of Maharashtra – (2010) 11 SCC 520, the Apex Court has unhesitatingly held that the accused have a right to cross-examine the witnesses at that stage which is before the framing of charge and therefore before the commencement of trial. In my humble view, at least in those cases where the accused have been summoned and are present before Court , they cannot be denied the right of cross-examination even if the Magistrate has chosen to examine the approver in his Chamber.

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.

  1. MODE OF FORWARDING THE CASE FOR TRIAL
  2. Where the approver has accepted the tender of pardon made under Section 306 (1) Cr.P.C. and he has been examined under Section 306 (4)(a) Cr.P.C., the Magistrate taking cognizance of the offence shall:-
  3. Commit the case for trial
  • to the Sessions Court
  • if the offence is exclusively triable by the Sessions Court

 OR

  • If the Magistrate taking cognizance of the offence is the CJM 

(Vide S.306 (5) (a)(i)Cr.P.C.)

  • to the Special Court under the P.C. Act, 1988

 if the offence is triable exclusively by the Special Court

(Vide Sec. 306 (5)(a)(ii) Cr.P.C. 

  1. In any other case, make over the case to the CJM who shall try the case himself.

                        (Vide Sec. 306 (5)(b) Cr.P.C.

Illustrations

  • If during the stage of investigation of a case triable by the JFCM, the CJM had tendered the pardon, then the approver who accepted the tender of pardon , has to be examined under Section 306 (4) (a) Cr.P.C. before the JFCM taking cognizance of the offence. If the other accused are already before Court pursuant to summons, then in my view they are entitled to cross-examine the approver. The JFCM shall not thereafter try the case but make over the case to the CJM for trial under Section 306 (5)(b) Cr.P.C.
  • If it is the JFCM who tendered the pardon while inquiring into or trying the case and if the approver has accepted the tender of pardon, then the approver shall be examined under Sec. 306 (4) (a) Cr.P.C. before the same JFCM. Here also the other accused, if present, pursuant to summons are entitled to cross-examine the approver. The JFCM shall not, thereafter try the case, but shall make over the case for trial to the CJM in view of Section 306 (5)(b) Cr.P.C. But if any of the offence is exclusively triable by a Court of Session, then instead of making over the case as above to the CJM, the JFCM shall commit the case for trial to the Court of Session.
  • If the offences are exclusively triable by the court of Session, then whether it was the JFCM or the CJM who had examined the approver under Section 306(4)(a) Cr. P.C. the case will have to be committed to the Court of Session as enjoined by Section 306 (5)(a)(i) Cr.P.C. Here also if the other accused are present before the Magistrate pursuant to the summons they are entitled to cross-examine the approver.
  • If the tender of pardon by the CJM and acceptance of the same by the approver was during the course of inquiry or trial in a case triable by the CJM, then the examination of the approver under Section 306 (4) (a) Cr.P.C. shall be by the CJM who shall not thereafter try the case but commit the case to the Court of Session under Section 306 (5)(a)(i) Cr.P.C. no matter whether the offences are exclusively triable by the Court of Session or not . If the offences involved are not exclusively triable by the Court of Sessions, then for the purpose of committing the case to the Court of Session the power to be located is under Section 323 Cr.P.C.
  • With regard to the offences punishable under the Prevention of Corruption Act, 1988, Section 5 (2) of the Act expressly confers power on the Special Judge to tender pardon to an accomplice and such pardon is to be, for the purposes of Section 308 Cr.P.C., deemed to have been tendered under Section 307 Cr.P.C. Section 8 (2) of the Criminal Law (Amendment) Act, 1952 also contained a similar provision enabling the Special Judge under the Prevention of Corruption Act, 1947 to exercise such powers of tendering the pardon. The said Amending Act of 1952 stands repealed with the enactment of the Prevention of Corruption Act, 1988. When the law confers express powers on the Special Judge to tender pardon, strictly speaking an occasion may not arise for any Magistrate taking cognizance of an offence to commit the case to the Special Court under Section 306(5)(a)(ii) Cr.P.C. since no court other than the Special Judge is competent to take cognizance of the offences under the PC Act. Even the CJM or MM who can tender pardon to an accomplice at the stage investigation of a case triable by the Special Judge, cannot take cognizance of the offence under the P.C Act, much less, examine the approver under Section 306(4)(a) Cr.P.C. The Special Judge not being a Magistrate the provision under Section 306 (4)(a) Cr.P.C. obliging the Magistrate taking cognizance to examine the approver as a witness, also may not apply. In Ananthanarayana Bhat v. Central Bureau of Investigation – 2009 (2) KLD 750, the Kerala High Court speaking through Justice Thomas P. Joseph has attempted to harmonize Section 306(1) and Section 306 (5)(a)(ii) Cr.P.C. by holding that even if the CJM /MM is entitled to tender pardon to an accomplice at the stage of investigation in a case triable by the Special Judge under the P.C Act, 1988, there is no question of this Special Judge, not being a Magistrate for this purpose, examining the accused under Section 306(4)(a) Cr.P.C. But since the Special Judge is deemed to be a Sessions Judge under Section 5(3) of the P.C Act, the CJM/MM after tendering pardon, has to commit the case for trial to the Special Judge under Section 306(5)(a)(ii) Cr.P.C .
  1. IS THE APPROVER ENTITLED TO BAIL ?
  2. Section 304 (1)(b) Cr.P.C. mandates that unless the approver was already released on bail he shall be detained in custody until the termination of the trial . The dominant object of requiring an approver to be detained in custody until the termination of the trial is not to punish the approver for having come forward to give evidence in support of the prosecution, but to protect him from the possible indignation, rage and resentment of his associates in crime whom he has chosen to expose. Such continued custody is also to prevent him from the temptation of saving his one-time friends and companions after he is granted pardon and is released from custody. Even if in a case, the approver is illegally released on bail and the release order is set aside by the superior court, such illegal release will not have any effect on the validity of the pardon once granted to an approver. (Vide para 34 of (Suresh Chandra Bahri v. State of Bihar – 1995 Supp. (1) SCC 80 = AIR 1994 SC 2420). In Shammi Firoz v. National Investigation Agency – 2010 (4) KLT 409 = ILR 2010 (4) Kerala 390, the question arose as to whether the approver who was in custody and who was granted pardon under Section 307 Cr.P.C by the NIA Special Court (which is a Court of Session), was entitled to be released on bail. The Kerala High Court held that if pardon is granted under Sec. 307 Cr.P.C. (i.e. if pardon is granted at the post-commitment stage) then the restrictions under Sections 306 (4)(1)(b) Cr.P.C. will not apply and hence the approver can be released on bail. It is pertinent to note here that the words “on the same condition to such person” occurring in Section 307 Cr.P.C.have been interpreted to mean only the condition imposed by Section 306 (1) and not Section 306 (4)(a) or Section 306 (4)(1)(b) Cr.P.C. (Vide para 34 of Santhosh Kumar Satish Bhushan Bariyar v. State of Maharashtra – (2009) 6 SCC 498; Paras 25 and 27 of Narayan Chetanram Chaudhary v. State of Maharashtra (2000) 8 SCC 457 = AIR 2000 SC 3352).
  3. POST-COMMITMENT PARDON UNDER SECTION 307 Cr.P.C.
  4. Only that Court to which commitment is made can grant pardon under this Section. This will include the Special Court under the P.C. Act and the Sessions Judge . The Sessions Judge has no jurisdiction to direct the committing Magistrate or any other Magistrate to grant pardon to an accomplice. Sessions Judge is not competent to make such a direction even in exercise of his power under Section 10 (3) Cr.P.C. unless he himself is absent or unable to act and there is no additional or assistant Sessions Judge. (Vide A. Devendran v. State of TN – (1997) 11 SCC 720). While Section 306 Cr.P.C. is invocable at the pre-commitment stage, Section 307 Cr.P.C. is invocable at the post-commitment stage. The Court while granting pardon under Section 307 Cr.P.C. is obliged to comply with the requirement of Section 306 (1) Cr.P.C. but not with the requirements of Section 306 (4) Cr.P.C. (Narayan Chetanram Chaudhary v. State of Maharashtra (2000) 8 SCC 457 = AIR 2000 SC 3352). Under Section 307 Cr.P.C. , the power of the Court to which commitment is made is independent of the provisions contained in Section 306 Cr.P.C. The condition mentioned in Section 307 Cr.P.C. refers to the condition laid down in Section 306 (1), 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. This power is not hedged with any other condition. (Vide para 34 of Santhosh Kumar Satish Bhushan Bariyar v. State of Maharashtra – (2009) 6 SCC 498. Hence, where pardon is tendered either by the Special Court under the P.C.Act or by a Court of Session under Section 307 Cr.P.C., there is no need for examination of the approver under Section 306 (4)(a) Cr.P.C. The approver in such a case need be examined only during the trial of the case. The various stages at which pardon can be tendered in cases triable by different courts, the rights, if any, of the other accused persons to cross -examine the approver during his mandatory examination, if any, under Section 306 (4)(a) Cr.P.C etc. can be better elucidated from the following

                                                CHART

Sl.No.Court which tenders pardon and under which provisionCase triable by which CourtStage of the case when pardon is tenderedCourt taking cognizance of the offenceWhether examination of the approver under Section 306 (4)(a) mandatoryWhether the other accused have a right of cross-examination at this stageCourt by which case is to be tried as per S. 306 (5) Cr.P.C.
1CJM/MM/ 306 (1)Cr.P.C

 

JFCMInvestigationJFCMYesNoCJM
2CJM/MM

306 (1) Cr.P.C

.

JFCMInquiry (accused not summoned)JFCMYesNoCJM
3CJM/MM

306(1) Cr.P.C

 

JFCMInquiry (accused present)JFCMYesYesCJM
4CJM/MM

306(1) Cr.P.C.

JFCMTrial (accused present)JFCMYesYes 

CJM

 

5CJM

306 (1)Cr.P.C.

CJMInvestigationCJMYesNoSessions Court
6CJM

306 (1) Cr.P.C.

 

CJMInquiry (accused not summoned)CJMYesNoSessions Court
7CJM

306 (1) Cr.P.C.

 

CJMTrial (accused present)CJMYesYesSessions Court
8CJM

306(1) Cr.P.C.

 

Sessions CourtInvestigationJFCMYesNoSessions Court
9CJM

306 (1)Cr.P.C.

 

Sessions CourtCommittal proceedings (accused present)JFCMYesYes 

Sessions Court

 

 

10CJM/MM

306 (1) Cr.P.C.

 

Special Court P.C. Act, 1988InvestigationSpecial CourtNo. since Special Judge is not a MagistrateNot applicableSpecial Court
11JFCM

306 (1) Cr.P.C

 

JFCMInquiry (accused present)JFCMYesYesCJM
12JFCM

306 (1) Cr.P.C.

 

JFCMTrial (accused present)JFCMYesYesCJM
13JFCM

306 (1)Cr.P.C.

 

 

Sessions CourtCommittal proceedings (pre- process stage)JFCMYesNOSessions Court
14JFCM

306 (1) Cr.P.C.

Sessions CourtCommittal proceedings (accused present)JFCMYesYesSessions Court
15Sessions Court – 307 Cr.P.C.Sessions CourtAfter committalSessions Court.No. Sec. 306 (4)(a) not applicable . It is S. 307 which applies Sessions Judge is not a MagistrateNot applicableNot applicable
16Special Court, P.C. Act, 1988 307 Cr.P.C.Special CourtEither pre-process stage or post-process stageSpecial CourtNo. S. 306 (4)(a) does not apply. It is S. 307 which appliesNot applicableNot applicable

 APPROVER NOT COMPLYING WITH THE CONDITION OF PARDON 

  1. Section 339 (1) of the old Code (corresponding to Section 308 (1) Cr.P.C.) does not apply if the pardon tendered was not accepted by the accomplice. The accomplice can, therefore, be tried along with the other accused de hors the provisions contained in Sec. 339 (1) of the Old Code. (Vide Bipin Behari Sarkar v. State of W.B. – AIR 1959 SC 13). The approver forfeits the pardon if he has failed to comply with the condition of pardon by willfully concealing anything essential or has given false evidence and the Public Prosecutor has issued a certificate under Section 308 (1) Cr.P.C. to that effect. On forfeiture of such pardon, the approver is relegated to the position of an accused. Thereafter, he cannot be compelled to be a prosecution witness. His already recorded evidence is rendered useless for the purposes of trial of the co-accused. Hence, no occasion arises for the defence to cross-examine him. The approver can also be tried for perjury (for giving false evidence) in which case an additional condition , namely, sanction of the High Court, shall also be fulfilled . Once the pardon is withdrawn or forfeited on the certificate given by the Public Prosecutor that such person has failed to comply with the condition on which the tender of pardon was made, he, who had ceased to be an accused and had become a prosecution witness upon the tender of pardon, is reverted to the position of the accused. He thereupon becomes liable to be tried separately and the evidence, if any, given by him has to be ignored in toto and does not remain legal evidence for consideration in the trial against the co-accused although such evidence may be used against the approver in the separate trial where he gets an opportunity to show that he had complied with the condition of pardon. [Abu Salem Abdul Kayyum Ansari (supra)]. In the separate trial of the quondam approver subsequent to the certificate of the Public Prosecutor referred to in Section 308(1) Cr.P.C, the earlier statement made by him accepting the tender of pardon and recorded by the Magistrate under Section 164 Cr.P.C or his statement during the examination under Section 306 (4)(a) Cr.P.C, may be given in evidence against him. (vide- Section 308 (2) Cr.P.C.) But if he were to be tried also for the offence of giving false evidence punishable under Section 193 of the Indian Penal Code, previous sanction of the High Court should be obtained. (vide- second pro viso to Section 308 (1) Cr.P.C). The said provision makes it clear that for prosecuting the quondam approver for the offence of perjury the procedure laid down in Section 340 Cr.P.C or the pre-condition under Section 195(1)(b)(1)Cr.P.C that he shall be prosecuted only on the complaint of the Court, are not applicable. Because of the mandate under Section 306 Cr.P.C. the State cannot withdraw the pardon from the approver, nor can the approver cast away the pardon granted to him till he is examined as a witness by the prosecution both in the committing court as well as in the trial Court. The approver may have resiled from the statement made before the Magistrate in the committing court and may not have complied with the condition on which pardon was granted to him. Still the prosecution has to examine him as a witness in the trial court . It is only when the Public Prosecutor certifies that the approver has not complied with the condition on which tender was made by willfully concealing anything essential or by giving false evidence, he may be tried under Section 308 Cr.P.C. not only for the offence in respect of which pardon was granted but also in respect of the other offences. [Vide Jagjit Singh(supra)].
  1. CREDIBILITY OF THE APPROVER’S EVIDENCE 
  1. The credibility of the approver’s evidence should be determined by applying the usual tests about credibility of a witness. (Vide State of A.P. v. Cheemalapati Ganeswara Rao – AIR 1963 SC 1696). According to Section 133 of the Evidence Act which is a rule of law an accomplice is competent to give evidence. As per illustration (b) to Section 114 of the Evidence Act which is a rule of practice it is almost always unsafe to convict the accused upon the testimony of an accomplice alone. Though the conviction of an accused on the testimony of an accomplice cannot be said to be illegal, yet the courts, as a matter of prudence, do not accept the evidence of such a witness without corroboration in material particulars qua each accused. (Vide Bhiva Doulu Patil v. State of Maharashtra – AIR 1963 SC 599; para 11 of CBI V. Ashok Kumar Aggarwal-(2013) 15 SCC 222. The motivating factor for an approver to turn, what in England is called “King’s Evidence “ is the hope of pardon and not any noble sentiment like contrition at the evil venture in which he had participated . Whether the evidence of the approver should , in a given case, be accepted or not will have to be determined by applying the usual tests such as the probability of the truth of what he has deposed to, the circumstances in which he has come to give evidence , whether his evidence is merely self-exculpatory and so on and so forth. The court has in addition, to ascertain whether his evidence has been corroborated sufficiently in material particulars . What is necessary to consider is whether applying all these tests , the evidence of the approver could be acted upon . (Vide Chittaranjan Das v. State of W.B. AIR 1963 SC 1696- 3 Judges). An approver’s evidence to be accepted must satisfy two tests . The first test to be applied is that his evidence must show that he is a reliable witness and that is a test common to all witnesses. The second test to be applied in the case of an approver and which is not always necessary when judging the evidence of other witnesses, is that his evidence must receive sufficient corroboration. (Vide Lachhi Ram v. State of Punjab – AIR 1967 SC 792 – 3 Judges).

Justice V.Ramkumar is a Former Judge, High Court of Kerala and  Chairman, Advisory Board, Kerala Anti-social Activities Prevention  Act.

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  • E. Mohamed Abbas says:

    A very useful compilation of cases with regard to section 306 Cr.P.C,. Mr. Justice has done a detailed research on the topic. There are very few people who touch this Section 306 Cr.P.C.

    I need one clarification , “can an accused during the pendency of his 306 application before the CJM file for an anticipatory bail before the High Court?”

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