Grant of pardon under Criminal Procedure Code , 1973

  1. 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—

  1. 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—

  1. his reasons for so doing;
  2. 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)—

  1. shall be examined as a witness in the Court of the Magistrate taking cognizance of the offence and in the subsequent trial, if any;
  2. 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—

  1. commit it for trial—
  2. 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;
  3. 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;
  4. b) in any other case, make over the case to the Chief Judicial Magistrate who shall try the case himself.

Purpose

To obtain the evidence of the person who may be directly or indirectly related to the offence

Competency

Authorities under this section are empowered to tender a pardon.

  • A chief judicial magistrate or the metropolitan magistrate.
  • Judicial magistrate first class.

Applicability

  • Any offence which is triable by Court of Special Judge under the Criminal Amendment Act, 1952 or by Session Court.
  • An offence which is punishable with the imprisonment extending to 7 years or more severe sentence.

Conditions

To make a valid and full disclosure of the whole of the circumstances within his knowledge related to the offence and to give information regarding the person whether as the abettor or the principal who is related to the offence.

Duties of Magistrate

It is the duty of every Magistrate to record

  • The reason for doing so.
  • Whether the person to whom tender was made has accepted it or not.
  • To furnish the copy of record free of cost to the accused.

A person accepting a tender shall be examined in Court of the Magistrate taking the cognisance of an offence as the witness. He is detained in custody until the disposal of the trial or unless he is already on bail.

Final Stage

When the person to whom tender was made had accepted the bid of pardon and has been examined as the witness in the court by taking the cognisance of an offence shall without any further inquiry in the case.

Send it for a trial as per the following scenarios.

  • If the offence is triable by Court of the session or if the Magistrate who is taking the cognisance of offence is Chief Judicial Magistrate or to the Session Court.
  • If the offence is triable by Special Judge appointed under the Criminal Amendment Act, 1952 or to the special judge.
  • In another case to make over the case to Chief Judicial Magistrate who shall try the case himself.

Offences

Section 306 talks about the offences for which pardon can be granted. It says that the offences punishable with imprisonment extending to seven or more years are covered under this section

Stage

Pardon to accomplice can be tendered at any juncture before the pronouncement of the judgement.

In the case of Dipesh Chandal vs Union of India[1]the Court stated that the accused cannot claim the immunity from the prosecution for any offence which is of economic nature.

In the case of Konajeti Rajababu vs the State of A.P[2] the court held that the divisional court has a jurisdiction to determine whether the Magistrate who has tender a pardon has acted judiciously or not.

  1. 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.

At any time after the commitment of the case, but before the judgement is passed, the court to which matter is committed may with the view to obtain the evidence of any person who may be directly or indirectly related to an offence or privy to an offence, tender a pardon on the same condition to such person.

In the case of K.Anil Agarwal vs the State of Kerala[3] the High court of Kerala stated that a statement recorded under section 164 of Cr.P.C  cannot be the condition for granting a pardon and the Session Court can tender a pardon under section

306(1) on the same conditions as specified in Section 306(1).

In the case of Lt Commander Pascal Fernades vs the State of Maharashtra[4] the Supreme Court held that generally, it is prosecution who asked for the tendering to pardon but in the case when the accused applies directly to the SpecialJudges, he must first send the request to the prosecuting agency.

 

Competency

Authorities who can exercise power is mentioned under section 307. The following magistrates can confer the power given by the code,

✔    The chief judicial magistrate or the metropolitan magistrate.

✔    Judicial magistrate first class.

✔    Session Court

✔    Special judge

Persons

The qualification for becoming an approver under both of these sections is one, and the same and moreover can be tendered under the same conditions.

Only those persons who have committed certain specified offences can only receive a pardon from the court and there shall be a true and full confession of the crime by the approver to be able to get the pardon. The accomplice who has more charges of crime on him or has such past records of various commitments of heinous crimes then he cannot be pardoned by the court.

The person with lessor participation in the crime may be tendered pardon by the court, to punish the main culprits. The person shall make full and valid disclosure of the facts and circumstances of the crime within his knowledge to get tender to pardon by the court.

Difference between section 306 and 307

In the case of Narayan Chetanram Chaudhary vs the State of Maharashtra[5]the Supreme Court held that section 306 is invokable at the pre-committal stage whereas section 306 is invokable at the post-committal stage. The court further stated that the trial court in granting a pardon under Section 306 need to comply with the requirement of section 306(1) but not with Section 306(4).

Section 308-Trial of the person when not complying the 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 opinion 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—

  1. if it is a Court of Session, before the charge is read out and explained to the accused;
  2. 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 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.

Consequences when person accepting a tender fails to fulfil the requirement of pardon

When the public prosecutor believes or has the reason to believe that the person who has accepted the tender or to whom pardon has been tendered  does not fulfil the conditions of the pardon such person may try for the same offence for which he was charged or for many another crime for which he is guilty in connection with the same matter.

The person can also be charged for false evidence. He cannot be charged for the false evidence unless the permission of the High Court is taken. The provision of section 195 and 340 will not apply in this case.

Any statement which is given by the person and recorded by the Magistrate under section 164 or the Court under section 306(4) may be used as the evidence against him in such trial.

During the trial, the person accepting the tender needs to prove that he has complied with the conditions of the Pardon and the burden is on the prosecution to prove that the person accepting the tender cannot fulfil the requirements of granting a pardon.

At such trial, the court shall

  • Before  charge is read out and explained to the accused or if it is the Court of Session
  • Before the evidence of the witness of, the prosecution is taken down or  if it is a Court of Magistrate

Ask the accused whether he accepts it that he has complied with the conditions of the pardon.

When the accused accept that he has complied with the conditions of the pardon, the court shall accept it and record the statement and proceed with the trial.

And in the case when the judgement is not passed finds that whether the accused has fulfilled the conditions and if it is found that he has complied with the requirements, pass the order of acquittal.

In the case of State vs  Bhoora & Ors[6]the court held that if one accused fails to comply with the conditions of the granting he cannot be tried with the other accused, but he can be the witness against the other accused and he does not cease to be the witness against other accused even when he has withdrawal his evidence.

There will be no question of pardon, if accused has violated the terms, was observed by the court in the case of  State V.  Hiralal Girdharilal Kothari[7]. the court, in the case of Karuppa Servai V. Kundaru[8] held that pardon can be granted to the approver, based on the principles of public policy and public interest.

Importance of section 114 and 133 of Indian Evidence Act

These two provisions deal with the same subject. Section 114 of the Evidence Act says that the accomplice is presumed to be unworthy of credit by the court unless corroborated in material particulars.

Section 133 of the Indian Evidence Act says that accomplice shall be treated as a competent witness against the accused person.

When section 133 of the evidence act is read along with section 114(b), we find the most essential issue with relation to accomplice evidence is that of corroboration. The general rule regarding corroboration is not the rule of law but is merely a rule of practice which is followed in both India and England.

Accomplice evidence shall be corroborated for the following reasons.

  • There are chances that accomplice may swear falsely to shift the guilt from himself.
  • An accomplice is an immoral person as he is involved in the crime.
  • Accomplice only discloses the fact in the greed and hope of getting a pardon from the punishment.

The power to tender pardon is subject to so many conditions which are specified by the code, and some are prescribed by the judges.

Conclusion

The pardon to an accomplice is the concept where the information regarding the severe offence can be found out. It is tendered only in cases of the serious offences, and the court has been applying its judicial mind to see whether the accused should be granted a pardon or not.

[1]17 September, 2004.

[2]2002 CriLJ 2990.

[3]1996 CriLJ 1942.

[4] 1968 SCR (1) 695.

[5]5 September, 2000.

[6]AIR 1961 RAJ 274.

[7]AIR 1960 SC 360.

[8]1953 Crl.L.J. 45.

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