Sunday, 27 May 2018

Notes on tender of pardon to accomplice

S 306 of CRPC:- Tender of pardon to accomplice:-
1) With a view to obtain the evidence of any person who is supposed to have been directly or indirectly concerned in or privy to an offence to which this section applies, the chief judicial magistrate or metropolitan magistrate or first class magistrate may at any stage of investigation or inquiry tender a pardon to such person, on the condition that he will make a full and true disclosure of the whole of the circumstances within his knowledge relating to the offence and to every other person concerned in the commission thereof as principal or as an abettor.

The offences in respect of which such tender can be made are following:
a) Any offence which can be tried exclusively by session court,or by the court of special Judge appointed under criminal law amendment Act 1952.

b) Any offence which is punishable with imprisonment extending to seven years or more.
Every magistrate who tenders a pardon as aforesaid must record his reasons for doing so. He must also record whether tender was or was not accepted by the person to whom it was made. A copy of such record is to be furnished to the accused free of costs if he applies for the same.
If a person accepts such a tender of pardon,he must be examined as witness in the court of magistrate taking cognizance of offence,and must be detained in custody until the termination of the trial,unless he is already on bail.
When a person has accepted a tender of pardon and has been examined as a witness, the magistrate taking cognizance of offence must without taking further inquiry in the case-
a) commit it for trial-
1)to session court, if offence is triable exclusively by that court or if magistrate taking cognizance is chief judicial magistrate;
2) to a court of special judge if offence is triable exclusively by that court;
3) make over the case to chief judicial magistrate who must then try the case himself.

S 307. Power to direct tender of pardon:- At any time after commitment of a case but before judgment is passed the court to which commitment is made may tender pardon to accomplice.

S 308. Trial of person not complying with condition of pardon:-
It often happens that ofter accepting such tender of pardon,the approver does not comply with the conditions of pardon and does not make a clean breast of the whole transaction. Therefore if public prosecutor certifies that in his opinion, accomplice has not complied with the condition on which the tender was made either by wilfully concealing anything which is essential or by giving false evidence,such person shall be tried for the offence in respect of which pardon was tendered and also for the offence of giving false evidence.

However such a person can not be tried jointly with any of the accused persons.
Moreover if such a person is to be tried for the offence of giving false evidence, sanction of high court has to be taken. S 195 and S 340 are not applicable.

Any statement made by such person accepting tender of pardon and recorded by magistrate under S 164 or by court under S 306(4) may be given in evidence against him at such trial.
At any such trial the approver is entitled to plead that he has complied with the condition on which tender was made. In such a case it is for the prosecution to prove that conditions were not in fact complied with.

At such trial court must ask accused whether he pleads that he has complied with the condition on which tender of pardon was made,and the accused does so pleads, the court must record the plea and proceed with the trial.Before passing any judgment in the case, the court must find out whether or not the accused had complied with the conditions of pardon,and if he does so,the court may pass judgment of acquittal.

Read important judgments on pardon:

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