TENDERING PARDON TO AN
ACCOMPLICE AT THE PRE-COMMITMENT / PRE-COGNIZANCE/ PRE-MAKE OVER STAGE
An important principle
discernible from Section 306 Cr.P.C., particularly sub-section (5) thereof is
that at the pre-commitment/ pre-cognizance stage, the Magistrate who tenders
pardon to an accomplice and takes cognizance of the offence, should not try the
case. Every Judge and lawyer should always bear this principle in mind.
That is why a Judicial Magistrate of the first
class who is given the power under
Section 306 (1) Cr.P.C. to tender pardon to an accomplice at the stage of
inquiry or trial is not given the power to try the case. By virtue of Section
306 (5) (b) Cr.P.C., that case is to be tried by the CJM.
Likewise, the CJM who tenders pardon to an
accomplice and takes cognizance of the offence under Section 306 (4) (a)
Cr.P.C. in a case triable by a JMFC, cannot try the case. Such a case has to be
tried by the Court of Session as per Section 306 (5) (a) (i) Cr.P.C. (Vide 1991
Cri.L.J. 27).
Similarly, in a case triable by a Judicial
magistrate first class in a Metropolitan area, if pardon to an accomplice was
tendered by an Additional Chief Metropolitan Magistrate who also took cognizance of the offence and
examined the accomplice under Section 306 (4) (a) Cr.P.C., such a case has to
be tried by the CJM in view of Section 306 (5) (b) Cr.P.C. (Vide (2013) 9
SCC 391). Section 306 (4) (a) is to be followed only by a Magistrate as he
would not have any jurisdiction to try the case himself. (Vide para 31 of Santosh
Kumar Satishbhushan Bariyar v. State of Maharashtra (2009) 6 SCC 498 – S. B. Sinha – J ).
1. Court and the stage at which pardon can be
tendered at the Pre-cognizance
/ Pre-commitment stage
1 (a). The Chief Judicial Magistrate/ Metropolitan
Magistrate
Under Section 306 (1)
Cr.P.C. pardon can be tendered to an accomplice and its acceptance , if any,
can be recorded – by the Chief Judicial Magistrate (CJM) or a
Metropolitan Magistrate (MM) at any stage of the investigation, inquiry or
trial. (Vide
para 13 of State of Maharashtra v. Abu Salem Abdul Kayyum Ansari (2010) 10 SCC
179 = 2011 Cri.L.J. 1 ).
Here the inquiry or trial as per the First
Schedule to Cr.P.C. need not be before the CJM or MM . (Vide A Devendran v.
State of TN – (1997 =) 11 SCC 720).
A careful reading of Section 306(1) Cr.P.C. will
indicate that while in the case of a CJM, what the said provision emphasises is
“the Chief
Judicial Magistrate”, whereas in the case of an MM the said provision
mentions only “a Metropolitan Magistrate”. The legislative intent seems to be
that in every district where there are additional CJMs also, the power to
tender pardon is given only to “the CJM” appointed under Section 12(1) of
Cr.P.C. and not an additional CJM appointed under Section 12(2) Cr.P.C. But in
a metropolitan area as declared under Section 8 Cr.P.C, the power of tendering
pardon can be exercised by any Metropolitan Magistrate appointed under Section
16 Cr.P.C. and he need not be the Chief Metropolitan Magistrate or additional
Chief Metropolitan Magistrate appointed under Section 17 Cr.P.C.)
1 (b). The Magistrate of the first class
Under Section 306 (1) Cr.P.C. pardon can be
tendered to an accomplice and its acceptance, if any, can be recorded – by the
Magistrate of the first Class Inquiring
into or trying the offence at any stage of the inquiry or trial before such Judicial
magistrate of first class.
The Magistrate of the first class cannot exercise
this function at the stage of investigation. The CJM/MM alone can tender pardon
during the stage of investigation of a case. (Vide Section 306 (1)
Cr.P.C.; State of Maharashtra v. Abu Salem Abdul Kayyum Ansari (2010) 10 SCC
179 = 2011 Cri.L.J. 1; A Devendran v. State of TN – (1997 ) 11 SCC 720).
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