Tendering Pardon in India

OVERVIEW

Let’s first understand the meaning of these terms:

• As the Indian Evidence Act 1872 defines :
• Accomplice – Under section 133 according to this section, an accomplice shall be a competent witness. An accomplice is not defined under the Criminal Procedure Code but we can understand it as an accomplice person is any person who is not an actual accused in the offence. This person has given surety as a pardon to him/ her for being a 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 that is followed in both India and England.
• Co-accused – under Section 30 according to this section, when two or more person being tried jointly under Section 223 Criminal Procedure Code 1973, the confession is made by one of them, then the court can take into consideration of such confession against the other person. Only the confession of a person who is being jointly tried.
• Approver – As ” approver” is not defined under the Criminal Procedure Code 1973, not in the Indian Evidence Act 1872.  But we can interpret it,  as the approver is a person who is an accomplice before granting of pardon. The approver can be an accomplice but vice -versa is not true.

Meaning of pardon.

In layman’s language pardon means “forgiveness”.

Pardon is granted by government officials to an individual who is part of the crime. Not actual accused but any person who is an accomplice in the offence.

Tender means ” offer” or ” proposal ” which is carried out by the government towards accomplice of the offence. It is up to the accomplice to accept or not, with reason.

Who can grant pardon?

• It can be granted by the President under Article 72 of the Indian Constitution
• It can be granted by the governor under Article 161 of the Indian Constitution.
• It can be granted by the Chief Judicial Magistrate or a Metropolitan Magistrate at any stage of the investigation or inquiry into, or the trial of the offence under Section 306 (1) of Crpc 1973.
• It can be granted by the Magistrate of the first class at any stage of trial and the inquiry of the offence but not in the investigation under section 306 (1) of Crpc 1973.

In this article, we will be only going to see the 306 and 307 of the Criminal Procedure Code 1973.

Category of Accomplice.

1. Principal offender of First Degree and Second Degree: The principal offender of the first degree is a person who commits the crime. The principal offender of the second degree is a person who either abets or aids the commission of the crime.
2. Accessories before the fact: They are the person who abets, incite, procure, or counsel for the commission of a crime and they do not themselves participate in the commission of the crime.
3. Accessories after the fact: They are the persons who receive or comfort or protect persons who have committed the crime knowing that they have committed the crime. If they help the accused in escaping from punishments or help him from not being arrested, such people are known as harbourers. These persons can be accomplices because all of them are the participants in the commission of the crime in some way or the other. Therefore anyone of them can be an accomplice.

Section 306 and 307  Of Criminal  Procedure Code 1973.

The objective of these sections.

• The very object of these provisions is to allow pardon to be tendered in cases where a grave offence is alleged to have been committed by several persons so that with the aid of the evidence of the person pardoned the offence could be brought to rest.
• And approver to make full disclosure of offence and to every other person concerned, whether as principal or abettor, in the commission of the offence in return for not proceeding against him.

The offences in respect of which pardon can be tendered are of three classes.

1.. Section 306(2)(a) offences triable exclusively by the court of sessions

2. Section 306(2)(a) offences triable by the Court of a special judge appointed under Criminal law Amendment Act, 1952
3. Section 306 (2)(b)Offences punishable with imprisonment which may extend to seven years or with a more severe sentence.

 Duties of Magistrate

• Every Magistrate must record
• The reason for doing so.

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

• To furnish the copy of the 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.

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. 

Section 308 – Trail of a person not complying with the condition of pardon.

• Outcomes of not fulfilling the condition of pardon after accepting it.

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 tended 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.

Any statement which is given by the person and recorded by the Magistrate under section 1of or the Court under section 306(4) may be used as 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 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 nd and cord 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.

• Cases

1. .In the case of Dipesh Chandal vs Union of India

• The Court stated that the accused cannot claim immunity from the prosecution for any offence which is economic.

2. In the case of Konajeti Rajababu vs the State of A.P

• The court held that the divisional court has jurisdiction to determine whether the Magistrate who has tender a pardon has acted judiciously or not.

3. In the case of K.Anil Agarwal vs the State of Kerala

• 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).

4. In the case of Lt Commander Pascal Fernades vs the State of Maharashtra

• The Supreme Court held that generally, it is the 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.

5. In the case of Narayan Chetanram Chaudhary vs the State of Maharashtra

• 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

6. 6. In the case of State vs Bhoora & Ors

• 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.

7. 7. There will be no question of a pardon if the accused has violated the terms, which was observed by the court in the case of State V.  Hiralal Girdharilal Kothari.

8. 8. The court, in the case of Karuppa Servai V. Kundaru, held that pardon can be granted to the approver, based on the principles of public policy and public interest.