procedure for tendering pardon to an accomplice at the pre-cognizance/ pre commitment /pre makeover stage

 

“Procedure” for tendering pardon to an accomplice at the pre-cognizance/ pre-    commitment / pre-make over stage.

 The initial procedure for tendering pardon to an accomplice at the stage of investigation of a case and at the stage of inquiry or trial before a Magistrate, is the same. While at the stage of investigation the initiation in this behalf may come from the investigating agency alone, at the stage of inquiry or trial before a Magistrate the initiation may be by the prosecuting agency with or without consulting the investigating agency

The various steps to be taken

a) After recording the statement of the accused (potential approver) under Section 161 Cr.P.C., the Police will explore the feasibility of making him an approver. The Police will then make a requisition to the CJM for recording the confession of the accused accomplice under section 164 Cr.P.C.

 

[The purpose behind the recording of confession of the “would be approver” is to enable the Magistrate tendering pardon, to reach the requisite satisfaction that the proposed accomplice is a fit person to be declaimed as an approver. For this purpose the self-serving 161 statement recorded by the Police may not be enough. It should be borne in mind in this context that the judicial act of tendering pardon to an accomplice is amenable to judicial scrutiny by a superior Court which also may have to be satisfied regarding the reason for tendering pardon since that is a statutory requirement to be fulfilled and recorded under Section 306 (3) (a) Cr.P.C. by the Magistrate tendering pardon.]

On receipt of the aforesaid requisition, the CJM will entrust a JMFC (preferably one who may not try or commit the case) to record the confession of the accomplice.

b) The delegate Judicial magistrate of first class will record the confession of the accomplice under Section 164 (4) Cr.P.C. after complying with safeguards and after giving the accomplice the necessary time for reflection. The confession of the proposed approver shall be recorded in the manner provided under Section 281 Cr.P.C. (vide Section 164 (4) Cr.P.C.) As enjoined by the Criminal Rules of Practice (Rule 70 (6) of the Kerala Rules) the recording of such confession should ordinarily be in open Court and during court hours.

[This may be because the confession of an accused does not affect any other person. But in the case of a victim or a witness or even an accused whose non-confessional statement is recorded under Section 164 (5) Cr.P.C, such recording will have to be done in camera. (vide the decision of Justice Abraham Mathew of the Kerala High Court in Varghese V. Central Bureau of Investigation – 2015(3) KLT 15=ILR 2015(3) Kerala 398].

c) Unlike in the case of a witness or victim, no oath is to be administered to an accused while recording a confession (Vide Section 4 (2) of the Oaths Act, 1969 and Section 164 (5) Cr.P.C. ).

d) The recorded confession statement shall be shown and read over to the approver and it shall thereafter be signed by the approver and the Magistrate (Vide Sections 164 (4) and (5) and 281 (4) and (5) Cr.P.C.)

e) Thereafter the Police may move the CJM for tendering pardon to the chosen accomplice.

f) The CJM will call for the investigation files including the confession recorded under Section 164 Cr.P.C. If satisfied that pardon can be tendered to the accomplice, the CJM will record a statement from the accomplice in order to ascertain as to whether he is willing to comply with the condition under Section 306(1) Cr.P.C. (Section 308(2) Cr.P.C. indicates that this statement by the CJM is also to be recorded under Section 164 Cr.P.C.)

g) Every Magistrate including the CJM who tenders a pardon to an approver under Section 306 (1) Cr.P.C. shall record –

i) his reasons for tendering pardon

ii) whether the tender was or was not accepted by the approver

 

(Vide Section 306 (3) Cr.P.C.)

[A close analysis of the provisions of Section 306 Cr.P.C. would indicate that the function of the Magistrate tendering pardon is over when

i) he tenders pardon, and

ii) records the reasons for so doing, and

iii) further records whether the tender was or was not accepted. Thereafter there is nothing further for that Magistrate to do. (Vide para 10 of State of Kerala v. Monu Surendran – 1990 (1) KLT 53 DB – U.L.Bhat - J].

 

The moment an accused is pardoned he is presumed to have been discharged and he becomes a prosecution witness. No formal order of discharge is required. (Vide A.J. Peiris v. State of Madras – AIR 1954 SC 616) = 1954 Cri.L.J. 1638 (SC) - 3 Judges]

h) The law does not require the Magistrate tendering pardon to an accomplice and recording a finding under Section 306 (3) Cr.P.C, to examine the approver as a witness under Section 306 (4) (a) Cr.P.C. That exercise of examining the approver as a witness under Section 306 (4) (a) Cr.P.C. is to be performed by the appropriate Magistrate entitled to take cognizance of the offence and try the case or commit it for trial. (See para 11 of R.T. 5/1988 and connected Crl. Appeals – Kurian v. State - 1989 (1) KLT SN 37 rendered by Justice U.L. Bhat ). In State of Kerala v. Monu Surendran 1991 Cri.L.J. 27 (DB) – U. L. Bhat – J which was a case arising from the mark list scandal, was one triable by the JMFC. The CJM tendered pardon, took cognizance of the offences and examined the approver on the Section 306 (4) (a) Cr.P.C. The case was, therefore, held to be committed to the Court of Session under Section 306 (5) (a) (i) Cr.P.C.