Sections 306 to 308 contain certain important provisions as regards tender of pardon by the Court to an accomplice. Such a person is also referred to as an approver.
Section 306 of the Code of Criminal Procedure provides that, with a view to obtaining the evidence of any person who is supposed to have been, directly or indirectly, concerned in, or privy to, an offence mentioned in the following paragraph, the Chief Judicial Magistrate, or a Metropolitan Magistrate, or a First Class Magistrate may, at any stage of investigation or inquiry, tender a pardon to such person, on the condition that he will make a full and true disclosure of the whole of the circumstances, within his knowledge relating to the offence and to every other person concerned in the commission thereof, whether as principal or as abettor.
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The offences in respect of which such a tender can be made are the following:
(a) Any offence which can be tried exclusively by the Sessions Court, or by the Court of a Special Judge appointed under the Criminal Law Amendment Act, 1952;
(b) Any offence which is punishable with imprisonment extending to seven years or more.
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Every Magistrate who tenders a pardon as aforesaid must record his reasons for doing so. He must also record whether the tender was or was not accepted by the person to whom it was made. A copy of such record is to be furnished to the accused, free of charge, if he applies for the same.
If a person accepts such a tender of pardon, he must be examined as a witness in the Court of the Magistrate taking cognizance of the offence, and must be detained in custody until the termination of the trial, unless he is already on bail.
When a person has accepted a tender of pardon, and has been examined as a witness as stated above, the Magistrate taking cognizance of the offence must, without taking any further inquiry in the case,—
(a) Commit it for trial—
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(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, if the offence is triable exclusively by that Court;
(b) In any other case, — make over the case to the Chief Judicial Magistrate, who must then try the case himself.
S. 307 then provides that at any time after 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.
It often happens that after accepting such tender of pardon, the approver does not comply with the conditions of the pardon, and does not make a clean breast of the whole transaction. S. 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.
At such a trial, the Court must ask the accused whether he pleads that he has complied with the condition on which the tender of pardon was made, and if the accused does so plead, the Court must record the plea and proceed with the trial. Before passing any judgment in the case, the Court must find out whether or not the accused had complied with the conditions of the pardon, and if he has done so, the Court may pass a judgement of acquittal.
The object of this provision is to prevent the escape of offenders from punishment in grave cases for lack of evidence, by grant of pardon to accomplices for obtaining true evidence. (Aaligirisami, 33 Mad. 514)
Once an accused has turned approver, his evidence has to satisfy a dual test. Firstly, his evidence must disclose that he is a reliable witness. Secondly, the approver’s evidence must be sufficiently corroborated. (Sarvanabhavan, AIR 1966 S.C. 1273)