Tender of Pardon to an Accomplice
Chapter Fifty-One
Syllabus topic 3.1, "Mode of Taking Evidence and General Provisions as to Inquiries and Trials - Section 266 to 352"
Pages 334 to 340 of 699
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,
Tender of Pardon to an Accomplice
may tender a pardon to such a 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 principal or abettor, in the commission thereof.
The difference in stage is examinable. The Chief Judicial Magistrate may tender during the investigation as well; a first class Magistrate may tender only after the case is before him, in the inquiry or trial.
Sub-section (2), the offences. The section applies to:
(a) any offence triable exclusively by the Court of Session or by the Court of a Special Judge appointed under any other law in force; (b) any offence punishable with imprisonment which may extend to seven years or with a more severe sentence.
Sub-section (3), the record. Every Magistrate who tenders a pardon shall record (a) his reasons for so doing, and (b) whether the tender was or was not accepted; and shall, on the application of the accused, furnish him a copy of that record free of cost.
That last words are worth noticing. The accused, that is the man being prosecuted, is entitled to the record of the pardon given to the man testifying against him, and entitled to it free of cost. His cross-examination of the approver begins there.
Sub-section (4), what the approver must do and endure. Every person accepting a tender:
(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.
Two examinations, not one. And custody, not liberty, until the trial ends.
Sub-section (5), what the Magistrate then does. Where a person has accepted a tender and has been examined under sub-section (4), the Magistrate taking cognizance shall, without making any further inquiry:
(a) commit the case 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 the Court of a Special Judge appointed under any other law, 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.
Note (a)(i)'s second limb. Even where the offence is not exclusively triable by the Court of Session, a pardon tendered by the Chief Judicial Magistrate sends the case to the Court of Session. And note (b): where it is made over, the Chief Judicial Magistrate tries it himself; he may not send it down.
Tender of Pardon to an Accomplice
Section 344: the trial court's own power
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 the offence, tender a pardon on the same condition.
So the power does not end with the Magistrate. The Sessions Court, or the Special Judge, may itself tender a pardon after commitment, on the same condition as section 343, that is full and true disclosure. Its window is after commitment and before judgment.
Section 345: when the approver breaks his word
Sub-section (1), the certificate. Where, in regard to a person who has accepted a tender under section 343 or section 344, the Public Prosecutor certifies that in his opinion that person has, either by wilfully concealing anything essential or by giving false evidence, not complied with the condition, that person may be tried:
- for the offence in respect of which the pardon was tendered; or
- for any other offence of which he appears to have been guilty in connection with the same matter; and also
- for the offence of giving false evidence.
First proviso: he shall not be tried jointly with any of the other accused.
Second proviso: he shall not be tried for the offence of giving false evidence except with the sanction of the High Court, and nothing in section 215 or section 379 shall apply to that offence.
The trigger is the Public Prosecutor's certificate, not the Court's own view; and the pardon is not "revoked" by anybody. The certificate simply opens the door to a trial in which the question of compliance will be decided.
Sub-section (2), his own statements against him. Any statement made by the person accepting the tender and recorded by a Magistrate under section 183, or by a Court under section 343(4), may be given in evidence against him at that trial.
Sub-section (3), the plea and the burden. At such trial the accused is entitled to plead that he has complied with the condition on which the tender was made; in which case it shall be for the prosecution to prove that the condition has not been complied with.
That is the heart of the section. The approver does not have to prove he told the truth. Once he pleads compliance, the burden is on the prosecution to prove he did not.
Tender of Pardon to an Accomplice
Sub-section (4), when the plea is asked for. The Court shall ask the accused whether he pleads compliance:
(a) if it is a Court of Session, before the charge is read out and explained to him; (b) if it is the Court of a Magistrate, before the evidence of the prosecution witnesses is taken.
Sub-section (5), the finding. If he so pleads, the Court shall record the plea and proceed with the trial, and before passing judgment shall find whether or not he has complied with the conditions of the pardon; and if it finds that he has, it shall, notwithstanding anything in the Sanhita, pass a judgment of acquittal.
A worked example
A dacoity, an offence punishable with imprisonment for life. Five men are arrested. The fifth, Ratan, was the driver and knows everything.
Can a pardon be tendered? Yes. It is an offence punishable with more than seven years, section 343(2)(b), and Ratan is a person supposed to have been directly or indirectly concerned in it.
By whom, and when? The Chief Judicial Magistrate may tender it even during the investigation; a first class Magistrate only once the case is before him in inquiry or trial, section 343(1).
On what condition? A full and true disclosure of the whole of the circumstances within his knowledge relating to the offence and to every other person concerned, as principal or abettor.
What must the Magistrate record? His reasons, and whether the tender was accepted; and the accused may demand a free copy of that record, section 343(3).
What happens to Ratan? He is examined as a witness before the Magistrate taking cognizance, and again at the trial; and unless already on bail he is detained in custody until the trial ends, section 343(4).
And to the case? The Magistrate commits it, without further inquiry, to the Court of Session, section 343(5)(a)(i).
Suppose no pardon was tendered before commitment, and the need appears at the trial. The Court of Session may itself tender a pardon on the same condition, at any time after commitment and before judgment, section 344.
Now Ratan gives evidence and conceals the part played by his brother. The Public Prosecutor certifies that he has wilfully concealed something essential, section 345(1). Ratan may then be tried for the dacoity, for any other offence in connection with the same matter, and for giving false evidence.
How is that trial run? He is not tried jointly with the other accused, first proviso. He may not be tried for giving false evidence without the sanction of the High Court, second proviso. His earlier statements, recorded under section 183 or under section 343(4), may be used against him, sub-section (2).
Tender of Pardon to an Accomplice
Before the charge is read out, the Court asks him whether he pleads compliance, sub-section (4)(a). He pleads that he did comply. Then the prosecution must prove that he did not, sub-section (3).
And if the Court finds he complied? It shall pass a judgment of acquittal, notwithstanding anything in the Sanhita, sub-section (5).
Distinctions
| Section 343 | Section 344 | |
|---|---|---|
| Who tenders | Chief Judicial Magistrate; Magistrate of the first class | The Court to which the case was committed |
| When | CJM: investigation, inquiry or trial. First class Magistrate: inquiry or trial | After commitment, before judgment |
| Condition | Full and true disclosure | The same condition |
| Record of reasons | Required, s.343(3) | Not separately stated |
| Offences to which section 343 applies |
|---|
| Triable exclusively by the Court of Session |
| Triable exclusively by a Special Judge under any other law |
| Punishable with imprisonment which may extend to seven years or more |
| Question at the section 345 trial | Answer |
|---|---|
| What starts it | The Public Prosecutor's certificate of non-compliance |
| Tried with the others? | No, he is not tried jointly |
| False evidence charge | Only with the sanction of the High Court; sections 215 and 379 do not apply |
| Who proves compliance | He pleads it; the prosecution must disprove it |
| When is the plea asked for | Sessions: before the charge is read. Magistrate: before prosecution evidence |
| If the Court finds compliance | Judgment of acquittal |
What this does NOT mean
A tender of pardon is not a pardon. It is an offer on a condition. What follows depends on acceptance and on performance.
It is not available in every case. Section 343(2) confines it to offences exclusively triable by a Court of Session or a Special Judge, and to offences punishable with seven years or more.
Acceptance does not buy liberty. Section 343(4)(b) detains the approver in custody until the termination of the trial unless he is already on bail.
A prosecutor's certificate does not convict anybody. It permits a trial; and in that trial, once the accused pleads compliance, the burden of proving breach is on the prosecution, and a finding of compliance ends in acquittal.
And the pardon does not licence the withholding of anything. The condition is disclosure of the whole of the circumstances within his knowledge, about the offence and every other person concerned. Concealing one man's part is a breach as much as lying about the whole.
Quick revision
- 343(1): CJM at any stage of investigation, inquiry or trial; first class Magistrate at any stage of the inquiry or trial; condition, full and true disclosure of the whole of the circumstances within his knowledge relating to the offence and every other person concerned.
- 343(2): offences exclusively triable by a Court of Session or Special Judge, and offences punishable with seven years or more.
- 343(3): record the reasons and whether the tender was accepted; free copy to the accused on application.
- 343(4): the approver is examined twice, before the Magistrate taking cognizance and at the trial, and is detained in custody until the trial ends unless already on bail.
- 343(5): the Magistrate commits without further inquiry to the Court of Session or the Special Judge; otherwise makes it over to the Chief Judicial Magistrate, who tries it himself.
- 344: the committal Court may itself tender a pardon after commitment and before judgment, on the same condition.
- 345(1): on the Public Prosecutor's certificate of wilful concealment or false evidence, the approver may be tried for the offence, for connected offences, and for giving false evidence; not jointly; false evidence only with High Court sanction.
- 345(2) to (5): his statements under section 183 or section 343(4) are evidence against him; he may plead compliance, and then the prosecution must prove breach; the plea is asked before the charge in a Sessions trial and before prosecution evidence before a Magistrate; a finding of compliance means acquittal.
Tender of Pardon to an Accomplice
Test yourself
1. Who can tender a pardon during the investigation? Only the Chief Judicial Magistrate. A Magistrate of the first class may tender one only at a stage of the inquiry or trial, section 343(1).
2. In which cases can a pardon be tendered? Offences triable exclusively by a Court of Session or by a Special Judge appointed under any other law, and offences punishable with imprisonment which may extend to seven years or more, section 343(2).
3. What is the condition of the pardon? A full and true disclosure of the whole of the circumstances within the person's knowledge relative to the offence and to every other person concerned in it, whether as principal or abettor.
4. What happens to the approver after he accepts? He is examined as a witness before the Magistrate taking cognizance and again at the trial, and unless already on bail he is detained in custody until the termination of the trial, section 343(4).
5. Can a Sessions Court tender a pardon? Yes. Under section 344 the Court to which the case is committed may tender a pardon on the same condition at any time after commitment and before judgment.
6. Who decides that the approver has broken the condition? Nobody decides it at that point. The Public Prosecutor certifies his opinion under section 345(1), which permits a trial; whether the condition was broken is decided in that trial, and the prosecution carries the burden once compliance is pleaded.
Tender of Pardon to an Accomplice
7. What must the Court do if it finds the approver did comply? Before passing judgment it must record that finding and, notwithstanding anything in the Sanhita, pass a judgment of acquittal, section 345(5).
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.