Tender of Pardon to an Accomplice

In one line

The State buys evidence it cannot otherwise get by promising one of the criminals that he will not be prosecuted, on condition that he tells the whole truth about everybody.

In exam wording: sections 343 to 345 of the Bharatiya Nagarik Suraksha Sanhita, 2023 empower certain courts to tender a pardon to a person supposed to have been concerned in a grave offence, in return for a full and true disclosure, and provide for his trial if he breaks that condition.

Why the law has this at all

Some crimes have no witnesses except the criminals.

A conspiracy is planned in private. A bribe is paid between two people. A dacoity is committed by men who will not speak against each other. The evidence that would convict the principal offender exists only in the memory of somebody who was himself part of it, and who has an obvious reason not to speak: he would convict himself in the telling.

So the law removes that reason. It offers him a pardon in exchange for the whole truth. He becomes what practice calls an approver: a participant turned witness.

The bargain is dangerous and the Sanhita knows it. An approver has every incentive to say what pleases the prosecution, and to shift blame. So the sections that grant the pardon also fence it: the tender is made only by named courts, only in serious cases, only on a condition stated in absolute terms, only with reasons recorded, and the approver is examined twice, before the committing Magistrate and again at the trial, so that his story can be tested against itself. And section 345 tells the prosecution what to do when he lies.

Some words this chapter uses

An accomplice is a person concerned in the offence, whether directly or indirectly, and whether as principal or abettor.

An approver is the accomplice who has accepted a tender of pardon and given evidence. The Sanhita does not use the word; the courts do.

A tender of pardon is the offer; a pardon is what results when the offer is accepted and the condition kept.

Privy to an offence means knowingly a party to it though not necessarily the doer.

Section 343: who may tender, for what, and on what terms

Sub-section (1), the power. 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 the section applies:

• the Chief Judicial Magistrate, at any stage of the investigation or inquiry into, or the trial of, the offence; and
• a Magistrate of the first class inquiring into or trying the offence, at any stage of the inquiry or trial,