Tender of Pardon to Accomplice 

(S. 306)
Scope and Object
 S.306 deals with the subject of tender of pardon to an accomplice.

 It is a helpful step when there is no clinching evidence against the accused and without
tendering such pardon all the accused persons would walk scots free.

 The power to grant pardon u/s. 306 is a substantive pardon and it rests on judicial discretion.

 The Court has to proceed with great caution and on sufficient grounds recognizing the risk
which the grant of pardon would result in, if the accomplice is let free.

 The disclosure of the person seeking pardon must be complete.

 The offer of pardon shall be made to the one who is the least guilty among all the other
accused.

 If the evidence is otherwise unobtainable, and only the accomplice can provide for such
evidence against the other accused, on account of secrecy of crime a paucity of evidence, it
would be justified to tender pardon to the one who is least guilty.

 To prevent the actual offenders from punishment for lack of evidence in grave offences.

 Pardon is granted to sought when somebody claims that he has committed mistake.

 An accused once granted pardon, is no more an accused he assist the Court and the
prosecution to secure c

Conditions – Pre-requisite
It can come into effect when the following conditions are met:

1. The offence charged must be punishable with imprisonment of seven years and
upwards; or
2. Triable exclusively by the Court of Sessions; or
3. Triable by a Special Judge.
Judicial Officer empowered to tender pardon
The following judicial officers are entitled to exercise the power of pardon to the accomplice:
1. Chief Judicial Magistrate; or
2. Metropolitan Magistrate; or
3. Judicial Magistrate of First Class
The CJM and the Metropolitan Magistrate can tender pardon at any stage of investigation or
inquiry or the trial.

However, the Judicial Magistrate of First Class can tender pardon at any stage of inquiry or trial
but not at the stage of investigation.

Duty of Magistrate to record reasons

 The Magistrate who tenders the pardons must record reasons before doing the same.

 The procedure u/s. 306(3)(a) & (b) provides for two things, mentioned as follows:

 The reasons for tendering the pardon; or

 Whether or not the pardon was accepted by the accomplice.
 If reasons are not recorded the orders of the Magistrate, will not be classified as speaking
orders.

 The whole order of the Magistrate can be quashed on the very ground that he has not recorded
reasons for tendering pardon the accomplice.

Who may apply for pardon

 A person who is directly or indirectly concerned with the offence; or

 A person who is privy to a certain type of offence.

 It is not necessary that the person is a party to the offences.

 The person applying for pardon may not be the actual culprit.

 The provisions apply to persons summoned as accused and also to others who are not so
summoned.

Examination of Accomplice as Witness – S.306(4)(a)

 Every person who accepts a tender of pardon u/s. 306 shall be examined as a witness in the
Court of the Magistrate taking Cognizance.

 However, in case the offence is exclusively triable by the Court of Sessions, the Magistrate shall
forward the person to the respective Court and shall not carry out examination of the person
accepting tender of pardon.

Custody of the person accepting tender of pardon – S.304(4)(b)

 Such person shall be detained in custody until the termination of trial.

 The custody under the said section means judicial custody and not police custody.

 The purpose of the same to ensure that the approver is protected from extraneous influence of
the accused or any other person.

 Such custody is aimed at protecting the approver who assists the Court in punishing the
accused.

Test to determine the Evidentiary Value

 The evidence given by the approver has to satisfy dual tests.

 One, he must show that he is a reliable witness.

 Secondly, his evidence shall receive sufficient corroboration.

 It is to be noted that if firstly the approver fails to prove that he is a reliable witness, then the
question of corroboration of evidence does not arise at all.

 In case both the above-mentioned contingencies are absent in the evidence of the accused,
then his evidence cannot be relied upon.

APPROVER AND TENDER OF PARDON.

Who are empowered to Tender Pardon [Sec. 306 (1)of the Criminal Procedure Code, 1973. ( for
short Said Code)].

The Chief Judicial Magistrate or Metropolitan Magistrate can tender pardon at any stage of
Investigation , or Inquiry into, or trial of the offence.

And the Magistrate of the First Class can tender pardon at any stage of the “Inquiry” or “Trial”
but not at the stage of investigation. .

When two authorities are simultaneously empowered to grant tender of pardon, if the lower
authority has not granted, the higher authority may grant. But at the first instance if the higher
authority is approached and it has not granted, the lower authority shall not grant except on
fresh facts, which were not brought before the superior authority, which declined to grant
pardon. Like bail applications any Magistrate Court if declines to grant pardon, the same court
can entertain second application but only on fresh facts or additional fresh facts. What is the
procedure involved in declaring an accused as approver: It is nothing but a bargain between the
police and accused. Once the bargain is settled then the procedure is to be followed.

Either the prosecution or the accused who has agreed to be an approver or somebody on
behalf of such accused may move application for tender of pardon. Both parties will be heard.
Since both parties already came to an understanding, there will be no question of any objection
by either of the parties. If there is any objection by either of the parties the court will not grant
tender of pardon. Court will examine the facts of the case and after hearing both parties it shall
record the reasons before granting tender of pardon. Police in general get the confessional
statement of the accused recorded prior to the initiation of these proceedings as guarantee but
it is not compulsory. Even the court will not look into such confessional statement as a factor
weighing for granting or rejecting tender of pardon.
The Hon’ble Supreme Court explained the law to this regard in Criminal Appeal no. 1925 of 2008
between State of Maharashtra v. Abu Salem Abdul Kayyum Ansari in the following terms; The salutary
principle of tendering a pardon to an accomplice is to unravel the truth in a grave offence so that guilt of
the other accused persons concerned in commission of crime could be brought home. It has been
repeatedly said by this Court that the object of Section 306 is to allow pardon in cases where heinous
offence is alleged to have been committed by several persons so that with the aid of the evidence of the
person granted pardon, the offence may be brought home to the rest. Section 306 Cr.P.C. empowers the
Chief Judicial Magistrate or a Metropolitan Magistrate to tender a pardon to a person supposed to have
been directly or indirectly concerned in or privy to an offence to which the section applies, at any stage
of the investigation or inquiry or trial of the offence on condition of his making a full and true disclosure
of the whole of the circumstances within his knowledge relative to the offence . The Magistrate of the
first class, under Section 306, is also empowered to tender pardon to an accomplice at any stage of
inquiry or trial but not at the stage of investigation on condition of his making full and true disclosure of
the entire circumstances within his knowledge relative to the crime. Section 307 vests the court to which
the commitment is made, with power to tender a pardon to an accomplice. The expression, ‘on the
same condition’ occurring in section 307, obviously refers to the condition indicated in sub-section (1) of
section 306, namely, on the accused 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. An accomplice who has been granted pardon under section 306
or 307 Cr.P.C. gets protection from prosecution. When he is called as a witness for the prosecution, he
must comply with the condition of making a full and true disclosure of the whole of the circumstances
within his knowledge concerning the offence and to every other person concerned, whether as principal
or abettor, in the commission thereof and if he suppresses anything material and essential within his
knowledge concerning the commission of crime or fails or refuses to comply with the condition on which
the tender was made and the Public Prosecutor gives his certificate under section 308 CrPC to that
effect, the protection given to him is lifted. In this case the Hon’ble Supreme Court considered sections
114, illustration (b), 132, 133, 154, of the Indian Evidence Act, 1872 and Article 20(3) of the Constitution
of India .

Who is an accomplice?
The section (Section 306 (1)) does not use the word accomplice, but describes the
various categories of person to whom pardon may be tendered.

“(i) A person who directly participated in the commission of the offence to which the
(investigation or) inquiry or trial relates.

(ii) A person who was indirectly concerned in the commission of the offence, e.g., as
abettor.

(iii) A person who was privy to the commission of the offence. The word, ‘privy’ possibly
suggests the category of ‘accessory after the fact’. Under English law, a person, who,
though not a participant in the principal offence, aided it subsequently, e.g., as a
receiver of stolen property, on a charge of theft against the accused.

If any of the foregoing tests is satisfied, pardon may be tendered to such person though
he may not have been arraigned as an accused. Nor is it necessary for the application of
the section that such person must expressly state that he took an active part in the
commission of the offence; it is enough if his statement clearly shows that he was a
privy to or abettor of the offence.

The word ‘accomplice’, which is used in u/S. 133 of the Evidence Act, includes a
principal, an accessory, abettor, a person in some way connected with the offence. An
accomplice, who is tendered pardon and gives evidence in favour of the prosecution
against other participants in the commission of the crime, is popularly called an
‘approver’, though that term, too, is not used in the section-306.”

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 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 principle 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-

(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.”

Section 307 of CrPC: 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.”
The provisions of Sec.306-307 can be summarised as:
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 Metropolitian Magistrate.

OFFENCES :- Sec 306 states that the offences punishable with imprisonment extending
to seven or more years are covered under this section.

STAGE :- Pardon to Accomplice can be tendered to any juncture before the

pronouncement of judgement.

Brief Analysis of Sec 306:-

a) Before a Magistrate acts to tender pardon, he must know the nature of the evidence
the person seeking conditional pardon is likely to give, the nature of his complicity and
the degree of his culpability in relation to the offence and in relation to the co-accused.
The interests of the accused are just as important as those of the prosecution. No
procedure or action can be in the interest of justice if it is prejudicial to an accused.
There are also matters of public policy to consider. It is the duty of magistrates to be
very cautious as to whom they admit to give evidence as approvers, and they should
carefully inquire to what extent the approver is mixed up with the transaction, and if he
be an accomplice, into the extent of his guilt. (Lt. Commander Pascal Fernandes v. State
of Maharashtra).

b) The power conferred by Section 306 Cr.P.C., on the Magistrate, to grant pardon is
circumscribed by the conditions prescribed in the said Section itself, and under Section
307 Cr.P.C. As is evident from sub-section (2) thereof, Section 306 Cr.P.C. 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; and (b) any offence
punishable with imprisonment which may extend to seven years or with a more severe
imprisonment.

c) Pardon is tenered to an accomplice to unravel the truth in a grave offence so that

guilt of the other accused, concerned in the commission of such a crime, could be
brought home. The object of Section 306, Cr.P.C. is to allow pardon in cases where a
heinous offence is alleged to have been committed by several persons so that, with the
aid of the evidence of the person granted pardon, the offence may be brought home to
the rest. The Legislature, in its wisdom, has chosen to restrict the power to grant pardon
only to grave and heinous offences for which the prescribed sentence is imprisonment
for seven years or more.

As Section 306 Cr.P.C. has no application to offences punishable with imprisonment for
a period less than seven years, the concerned Magistrate cannot tender pardon, under
sub-section (1) of Section 306 Cr.P.C, to those accused of committing such offences.

It is, therefore, imperative for the Magistrate, whose jurisdiction to grant pardon under
Section 306 Cr.P.C. is invoked, to peruse the complaint/charge sheet as the case may be;
the affidavit filed in support of the petition seeking pardon; the affidavit, if any, filed by
the prosecution; and the confession statement made on oath by the person seeking
pardon; to satisfy himself that the foundational facts, (even basic facts may suffice), are
laid regarding commission of offences for which the punishment liable to be imposed is
seven years or more, for it is only if the complaint/charge sheet contains an allegation
attracting the ingredients of such an offence, can the Magistrate exercise his jurisdiction,
under Section 306 Cr.P.C., to tender pardon to the accomplice.

SUPREME COURT OF INDIA ON LIFE IMPRISONMENT:

POWER TO GRANT PARDON
Life imprisonment cannot be equivalent to imprisonment for 14 years or 20 years, rather
it is always meant for the whole natural life. The punishment so awarded would be
subject to any order passed in exercise of the clemency powers of the President of India
or Governor of State, as the case may be. Pardons, reprieves and remissions are granted
in exercise of prerogative power. There is no scope of judicial review of such orders
except on very limited grounds for example non-application of mind while passing the
order; non-consideration of relevant material; or if the order suffers from arbitrariness.

The power to grant pardons and to commute sentences is coupled with a duty to
exercise the same fairly and reasonably. Administration of justice cannot be perverted by
executive or political pressure. Of course, adoption of uniform standards may not be
possible while exercising the power of pardon. Thus, such orders do not interfere with
the sovereign power of the State. More so, not being in contravention of any statutory
or constitutional provision, the orders, even if treated to have been passed under Article
142 of the Constitution do not deserve to be labelled as unwarranted.

Where the court directs that the convict has to serve a particular period of sentence
before his case for premature release is considered then it must be inferred that the
court considered the gravity of the offences committed, therefore, the accused is not
entitled to be considered for premature release under the guidelines issued for that
purpose i.e. under Jail Manual etc. or even under Section 433-A CrPC. (State of U.P. v.
Sanjay Kumar, SLP (Cri) No. 6467 of 2012, Order dated 21-8-2012).