GRANT OF PARDON UNDER CODE OF CRIMINAL PROCEDURE, 1973
Sec.306-307 of CrPC contains certain important provisions as regards tender of pardon by the court to an accomplice. Such a person is also referred as an approver.
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 tendered 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)
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Author Details: Upasana Borah is a 4th year B.B.A LL. B (Hons) student at N.E.F LAW COLLEGE GUWAHATI.