Tender Of Pardon To Accomplice

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.

Sections 306 to 308 of the Code of Criminal Procedure, 1973 contain certain important provisions as regards the tender of pardon by the Court to an accomplice. Such a person is also referred to as an approver.

S.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 or 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, -

(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.

The offences in respect of which such tender can be made are the following:

a) Any offence which can be tried exclusively by session court, or by the court of Special Judge appointed under criminal law amendment Act 1952.

b) Any offence which is punishable with imprisonment extending to seven years or more.

It is the duty of every Magistrate to record the reason for doing so -

1. Whether the person to whom tender was made has accepted it or not.

2. To furnish the copy of the record free of cost to the accused.

Section 307 then provides that at any time after the commitment of the case, but before judgment is passed, the Court to which the commitment is made may tender a pardon on the same condition to any person supposed to have been directly or indirectly concerned in, or privy to, any such offence, with a view to obtaining the evidence of such a person at the trial.

Section 308, therefore, provides that if the Public Prosecutor certifies that, in his opinion, after a person has accepted a tender of pardon, he has not complied with the condition on which the tender was made, either by wilfully concealing anything which is essential, or by giving false evidence, such a person can be tried for the offence in respect of which the pardon was tendered, or for any other offence of which he appears to be guilty, and also for the offence of giving false evidence.

However, such a person cannot be tried jointly with any of the accused persons. Moreover, if such a person is to be tried for the offence of giving false evidence, the sanction of the High Court has to be taken.

At any such trial, the approver is entitled to plead that he has complied with the condition on which the tender was made. In such a case, it is for the prosecution to prove that the conditions were not, in fact, complied with.

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