offences in respect of which pardon can be tenered

 

OFFENCES IN RESPECT OF WHICH PARDON CAN BE TENDERED

 The three categories of offences in respect of which pardon can be tendered to an accomplice are :-

i) Offences exclusively triable by a court of Session. (Vide Section 306 (2) (a) Cr.P.C.)

ii) Offences exclusively triable by a Special Judge under the Prevention of Corruption Act, 1988. (Vide Section 306 (2) (a) Cr.P.C.)

iii) Offences punishable with imprisonment which may extent to 7 years or with a more severe sentence

(Vide Section 306 (2) (b) Cr.P.C.)

The first and third category of cases need not necessarily be offences punishable under the Indian Penal Code. A person may be charged in respect of the same transaction or act, under the Penal Code and under some other Act. e.g. Section 28 (2) of the Protection of Children from Sexual Offences Act, 2012 (“POCSO Act” for short); Section 4 (3) of the Prevention of Corruption Act, 1988. The pardon would operate in respect of all offences pertaining to that transaction. However, the pardon will not operate in respect of a transaction or act entirely unconnected with the offence in respect of which pardon has been granted. (Vide para 13 of Jagjit Singh (Supra – AIR 1989 SC 598); Para 13 of Dipesh Chandak v. Union of India (2004) 8 SCC 511 – S. N. Variava – J ).

Section 5 of the Official Secrets Act, read with Section 120 B of IPC, does not fall within any of the three categories of offences mentioned in Section 337 (1) of the old Code (Section 306 Cr.P.C.) where pardon can be tendered. (Vide State v. Hiralal Girdharilal Kothari – AIR 1960 SC 360 = 1960 Cri.L.J. 524 – 3 Judges – K. N. Wanchoo – J ).

COURT CANNOT SUO MOTU GRANT PARDON

Even though on a reading of Sections 306 and 307 Cr.P.C., it would appear that the power vested in the Court to grant pardon to an approver appears to be a suo motu power, obviously the Court can have no interest whatsoever in the outcome of the case nor can it take a decision for and on behalf of the investigating and prosecuting agencies, as the case may be, as to whether pardon is to be tendered to any particular accomplice so as to muster evidence to ensure conviction of the rest of the accused. That is really the problem of the investigating or prosecuting agencies concerned. Hence, it is for those agencies to ask the court that a particular accused, out of several, may be made an approver by tendering pardon. Even in a case where an accused person directly applies to the court for tendering pardon to him, the Court must refer the request to the prosecuting agency. The proper course for the Court is to ask for a statement from the prosecution on the request of the prisoner. If the prosecution thinks that the tender of pardon will be in the interest of a successful prosecution of the other offenders whose conviction may not be easy without the approver’s testimony, it will indubitably agree to the tendering of pardon. The Magistrate or the Judge must not take upon himself the task of determining the propriety of tendering pardon to a particular accused person. (Vide Lt. Commander Pascal Fernandez v. State of Maharashtra – AIR 1968 SC 594 = 1968 Cri.L.J. 550 – 3 Judges – M. Hidayathullah – J ; Paras 18 and 19 of Jasbir Singh v. Vipinkumar Jaggi - (2001) 8 SCC 289 = AIR 2001 SC 2734 – Rumapal – J ; Paras 20,21 of CBI v. Ashok Kumar Aggarwal – (2013) 15 SCC 222 – Dr. B. S. Chauhan – J. Lt. Commander Pascal Fernandas (Supra) followed. Paragraph 20 deals with the disqualification from inheritance of a murderer.)  METAMORPHOSIS OF THE ACCOMPLICE INTO A PROSECUTION WITNESS AND HIS REVERSION

When an accused is granted pardon subject to the conditions specified under Section 306 Cr.P.C., he ceases to be an accused (or stands discharged as an accused) and becomes a witness for the prosecution. So long as the prosecution does not certify under Section 308 (1) Cr.P.C. that he has failed to comply with the conditions of pardon, he continues to be a prosecution witness and the prosecution is under an obligation to examine him as a witness both in the committing court as well as in the trial court even if the approver has resiled from the conditions of pardon before the committing court. (Vide paras 9, 11 and 12 of State (Delhi Admn.) v. Jagjit Singh (1989) suppl. (2) SCC 770 = AIR 1989 SC 598 – B. C. Ray - J; Paragraphs 17 and 21 of State of Maharashtra v. Abu Salem Abdul Kayyum Ansari - (2010) 10 SCC 179 – R. M. Lodha – J; Para 22 of CBI v. Ashok Kumar Aggarwal (2013) 15 SCC 222 – Dr. B. S. Chauhan - J ).

The proviso to Section 132 of the Indian Evidence Act clearly protect such an approver from being prosecuted on the basis of the answers given by him in a criminal proceeding which tend to criminate him directly or indirectly. In view of this provision he need not be apprehensive of the fact that his evidence as approver will be used against him in other criminal cases where he figures as an accused (Vide para 13 of State v State (Delhi Admn.) v. Jagjit Singh (1989) suppl. (2) SCC 770 = AIR 1989 SC 598 – B. C. Ray – J ).

When once the pardon granted to the approver stands forfeited on the certificate issued by the Public Prosecutor under Section 308 (1) Cr.P.C., the approver is relegated or reverted to the position of an accused and he does not thereafter, remain a witness for the prosecution. His evidence already given is rendered useless for the purpose of trial of the co-accused. He cannot, thereafter, be compelled to be a prosecution witness. In such circumstances, he is liable to be tried separately and the evidence, if any, given by him has to be ignored in toto and it does not remain to be legal evidence for consideration in the trial against the co-accused. There is no question of the approver who has forfeited the protection extended to him, being further examined in the case and, therefore, no occasion arrises for the defence to cross-examine him. But his evidence may be used against him in the separate trial where he gets an opportunity to show that he had complied with the condition of pardon . (Vide para 24 of State of Maharashtra v. Abu Salem Abdul Kayyum Ansari - (2010) 10 SCC 179 – P. Sathasivam, R. M. Lodha – JJ ).