“PARDON TO ACCOMPLICE”

A Project Submitted

To

ARMY INSTITUTE OF LAW, MOHALI

By

JYOTI PANDEY (1875)

Under The Guidance

Of
Dr. Bajirao Rajwade
(Code of Criminal Procedure)

In The Partial Fulfilment of the Requirement for The Award of Degree of BA LLB.
Punjabi University, Patiala, Punjab

(Submission Year: January- June 2022)

 DECLARATION

It is certified that the project work presented in this report title ‘Pardon to accomplice’ embodied
the results of original research work carried out by me. All the ideas and references have been duly
acknowledged.

Date: April 21st, 2022 Jyoti Pandey

Place: Mohali Roll No: 1875

 ACKNOWLEDGEMENTS

I take this opportunity to express my humble gratitude and personal regards to Dr. Bajirao Rajwade
for inspiring me and guiding me during the course of this project work and also for his cooperation
and guidance from time to time during the course of this project work on the topic: - Pardon to
Accomplice.
INTRODUCTION

Accomplice is a witness to the crime, who is connected with the crime by any unlawful act or
omission, with his active or inactive participation to the crime some way or the other and he/she
admits his/her active involvement in the crime.

Section 133 of the Indian Evidence Act, 1872 talks about accomplice witness. According to it, an
accomplice is a competent witness against an accused person. Usually, crimes are committed in
sheltered or private places. In such cases, the police pick up one of the suspects, that have been
arrested and who are least guilty and asks them to give all the information regarding the crime,
how it was committed and offers him surety to be pardoned for the crime if he delivers true
information.

“It was held in R.K. Dalmia v. Delhi administration1, that an accomplice is a person who
participates in the commission of the actual crime charged against the accused.”

CATEGORIES OF AN ACCOMPLICE

1. Principal offender: The principal offender is the person who actually commits the crime or
abets the crime.
2. Before the fact: People, who abet, incite or procure for the commission of a crime and do not
participate in the crime.
3. After the fact: People who protect the persons who have committed the crime or help them to
escape from the location. They are also considered as the participants of the crime.

According to Section 306 and Section 307 of the Criminal Procedural Code, an accomplice is a
competent witness to the crime. According to Article 20(3) of the Constitution of India of the
accused shall be compelled to act as a witness. Principles to be followed for the grant of
pardon are as follows-

1. Trial must be initiated.

2. Guilty shall not be proved.
3. An accomplice shall agree to be approved, there must be an agreement to be an approver.
4. The approver becomes the witness if the pardon is granted by the Court.

1
1963 SCR (1) 253
5. If he violates these terms, no pardon shall be granted.
6. He shall not be released before the decision or order.

GRANT OF PARDON UNDER CRPC, 1973: Section 306: Tender of pardon to an accomplice.

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 cognizance 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 cognizance 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
cognizance 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 India2

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.P3

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.

Section 307- Power to direct tender to pardon

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 v. the State of Kerala4

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 section306(1)
on the same conditions as specified in Section 306(1). In the case of Lt. Commander Pascal

2
17th September, 2004
3
2002 CriLJ 2990.
4
1996 CriLJ 1942
Fernades vs the State of Maharashtra 5. 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
Special Judges, 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 Maharashtra6

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.

5
1968 SCR (1) 695
6
AIR 1960 SC 360
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.,7 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 Kothari8.

7
AIR 1961 RAJ 274
8
1953 CriLJ 45
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.

Section- 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-section (4), the Magistrate taking cognizance of the offence shall, without
making any further inquiry in the case.

Scope of the Section: Pardon may be tendered only by a Magistrate who is empowered to do so
under this section. The scope of this section applies only to offences mentioned in this section. Its
scope cannot be enlarged by resorting to Section 308. A request for pardon and tender of pardon
is a matter between the Court and the person who is granted pardon and cannot be challenged by
other co-accused persons. An order granting pardon is open to revision, but whether the Court
whose powers are invoked for that purpose will interfere or not is a matter depending upon the
circumstances of each case.

It was held in V. Krishnaswami v. State of Tamil Nadu9, that where the special judge examines
the approver, he need not thereafter commit the case to another Special Judge. Approver has to be
examined as a witness before the Magistrate taking cognizance of the offence (that is in committal
proceedings) and accused must be given an opportunity of cross-examination."

It was held in A. Deivendran v. State of Tamil Nadu10, “that a Magistrate of the First class can
exercise the power to tender pardon to a person while inquiring into or trying the offence in
question and the Chief Judicial Magistrate or a Metropolitan Magistrate can exercise such power
at any stage of investigation or inquiry into or trial of the offence which they themselves may not

9
1987 Cr LJ 1012 (Mad)
10
1998 Cr. LJ 814 (SC)
be trying Credibility of evidence of approver- An accomplice is undoubtedly a competent witness
but the courts are reluctant to act on such evidence unless it is corroborated in material particulars
by other independent evidence. To base a conviction merely on accomplice evidence is not illegal,
but there must be its corroboration in material particulars.

Corroboration by circumstantial evidence- In Subramaniam v. State of Tamil Nadu11, the

conviction of the appellant rested on the testimony of the approver corroborated on other evidence,
mostly circumstantial qua each of the appellants. It was held that the conviction of the appellant
based on accomplice evidence corroborated by circumstantial evidence was in order. In Maghar
Singh v. State of Punjab12, the chain of the circumstantial evidence proved against the accused
was not explainable on any other hypothesis except that the accused was guilty of murder. It was
held that the circumstantial evidence constituted substantial and sufficient corroboration of the
approver's statement in material particulars.

WHO IS APPROVER? An approver is a person who is an accomplice in crime and who turns
out a witness for the prosecution. Though accomplice evidence is admissible under Section 133 of
the Evidence Act against a co-accused, being a participator in crime and therefore, an infamous
witness, his testimony is regarded with greatest distrust and fullest corroboration in material
particulars is required for a conviction. He is no longer treated as an accused and is examined as a
witness. It becomes necessary for the ends of justice to get approvers in cases where direct
evidence is required but is not available.

307. 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.

308. TRIAL OF PERSON NOT COMPLYING WITH 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 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

11
AIR 1975 SC 139.
12
AIR 1975 SC 1320.
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:

COMMENTS

It was held in Surjay Bdn Darjee v. State of Sikkim13, that an approver whose pardon has been
withdrawn for non-compliance with the conditions of pardon, can only be prosecuted for original
offence after it is established that he has not complied with the conditions of pardon. It was also
made clear that provision of Section 308(4) and 308(5) requiring approver to be asked as to
whether he pleads that he has complied with conditions of pardon before prosecuting him is
mandatory and non-compliance with the said provisions vitiates the trial.

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.

13
2006 Cr. L.J.2163 (Sikkim)