Mode of forwarding the case for trial in tender of pardon to accomplice cases

 

Mode of forwarding the case for trial in tender of pardon to accomplice cases

 

 Where the approver has accepted the tender of pardon made under Section 306 (1) Cr.P.C. and he has been examined under Section 306 (4) (a) Cr.P.C., the Magistrate taking cognizance of the offence shall:-

(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

(Vide S.306 (5) (a)(i)Cr.P.C.)

(ii) to the Special Court under the P.C. Act, 1988 if the offence is triable exclusively by the Special Court.

(Vide Sec. 306 (5)(a)(ii) Cr.P.C.)

(b) In any other case, make over the case to the CJM who shall try the case himself. (Vide Sec. 306 (5)(b) Cr.P.C.)

I l l u s t r a t I o n s

(1) If during the stage of investigation of a case triable by the JMFC, the Addl. Chief Metropolitan Magistrate (“ACMM”) had tendered the pardon, then the approver who accepted the tender of pardon , can be examined under Section 306 (4) (a) Cr.P.C. before the ACMM taking cognizance of the offence.

If the other accused have not been summoned and are, therefore, not present before the Magistrate, they have no right to cross-examine the approver at that stage. If the other accused are already before Court pursuant to summons, then in my view, they are entitled to cross-examine the approver.

The JMFC or the ACMM shall not thereafter try the case. The ACMM shall make over the case to the CJM for trial in view of Section 306 (5) (b) Cr.P.C. (See also Dilip Sudhakar Pendse v. CBI (2013) 9 SCC 391).

(2) If it is the JMFC who tendered the pardon while inquiring into or trying the case and if the approver has accepted the tender of pardon, then the approver shall be examined under Sec. 306 (4) (a) Cr.P.C. before the same JMFC. Here also, if process has not been issued to the other accused who are, therefore, not present before the Magistrate, they have no right to cross-examine the approver at that stage. If the other accused are present pursuant to summons, then they are entitled to cross-examine the approver. The JMFC shall not, thereafter try the case, but shall make over the case for trial to the CJM in view of Section 306 (5)(b) Cr.P.C. But if any of the offence is exclusively triable by a Court of Session, then instead of making over the case to the CJM as above, the JMFC shall commit the case for trial to the Court of Session. (Vide Section 306 (5) (a) (i) Cr.P.C.)

 

(3) If the tender of pardon by the CJM and acceptance of the same by the approver was during the course of inquiry or trial in a case triable by the CJM, then the examination of the approver under Section 306 (4) (a) Cr.P.C. shall be by the CJM who shall not thereafter try the case but commit the case for trial to the Court of Session in view of Section 306 (5) (a) (i) Cr.P.C. no matter whether the offences are exclusively triable by the Court of Session or not.

 

(4) If the offences are exclusively triable by the court of Session, then whether it was the JMFC or the CJM who had examined the approver under Section 306 (4) (a) Cr. P.C. the case will have to be committed to the Court of Session as enjoined by Section 306 (5)(a)(i) Cr.P.C. Here also if the other accused are present before the Magistrate pursuant to the summons issued to them they are entitled to cross-examine the approver during his examination under Section 306 (4) (a) Cr.P.C.