Re-Enactment, Self-Incrimination, and the Architecture of Proof: A Critical Reading of Supreme Court judgment State of Tamil Nadu v. Ponnusamy & Ors.

Supreme Court decision of THE STATE OF TAMIL NADU Vs   PONNUSAMY & ORS, Dated: May 19, 2026, 2026 INSC 507 arising out of the murder of Dr. Subbiah in Chennai presents a dense intersection of conspiracy law, approver testimony, electronic evidence, recoveries under Section 27, and the constitutional limit against self-incrimination under Article 20(3). The case travelled from a trial court conviction, including death sentences for several accused, to a complete acquittal by the Madras High Court, and then back to the Supreme Court, which subjected both the evidentiary record and the High Court’s reasoning to close scrutiny.

Case setting

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From Accused to Approver: How to Weigh Turncoat Testimony after State of Tamil Nadu v. Ponnusamy & Ors.

The Supreme Court’s treatment of PW12 (the approver) in State of Tamil Nadu v. Ponnusamy & Ors. dated  May 19, 2026, citation: 2026 INSC 507 substantially refines how trial courts should appreciate approver evidence in a modern conspiracy-cum-murder trial. The judgment both re‑affirms the classic prudential rule of corroboration and corrects some recurring mistakes in how contradictions and “improvements” in an approver’s version are evaluated.

1. The starting point: approver evidence is usable, but with prudence

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Supreme Court: Whether identification of specimen signature of accused by handwriting expert was hearsay and whether he can prove said signature?

 But what was contained in Exhibit P-75 was never admitted by A- 7 to be in his handwriting. Exhibit P-75 was marked through PW-30, the handwriting expert, and not even by the I.O. At least if the I.O. had identified and marked the specimen writings and signatures of A-7 as Exhibit P-75, it was possible for the prosecution to contend that the specimen signatures stood proved. But the I.O. did not identify Exhibit P-75. PW-30 through whom Exhibit P-75 was marked did not directly obtain the specimen writings of A-7. The statement of PW-30 that the specimen writings of A-7 are in Exhibit P-75 was only hearsay evidence, as he did not directly obtain those specimen signatures. Thus, Exhibit P- 75 never stood proved. {Para 134}

IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 2417 of 2010, 16 of 2011 and 2444 of 2010

Decided On: 15.06.2023

A. Srinivasulu Vs. The State Rep. by the Inspector of Police

Hon'ble Judges/Coram:

V. Ramasubramanian and Pankaj Mithal, JJ.

Citation:  MANU/SC/0723/2023.

Read full judgment here: Click here.

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Supreme court: What are essential pre-requisite for comparing the admitted signatures/ handwritings with the disputed ones U/S 73 of the Evidence Act?

  The High Court fortunately realised the pitfall in the reasoning of the Trial Court. But in an over-anxiety to somehow convict A-7, the High Court adopted a very peculiar route, namely that of undertaking the task of comparing the admitted signatures/ handwritings with the disputed ones Under Section 73 of the Evidence Act. {Para 130}

131. For invoking Section 73, there must first have been some signature or writing admitted or proved to the satisfaction of the Court, to have been written or made by that person. The Section empowers the Court also to direct any person present in Court to write any words or figures for the purpose of enabling the Court to compare the words or figures.

132. There was no signature or writing available before the High Court, which had been admitted or proved to the satisfaction of the Court to have been written or made. The High Court did not also direct A-7 to write any words or figures for the purpose of enabling a comparison. Without following the procedure so prescribed in Section 73, the High Court invented a novel procedure, to uphold the conviction handed over by the Trial Court through a wrong reasoning.

133. In fact, the High Court considered Exhibit P-75 to be the document containing the admitted handwritings and signatures of A-7 and compared what was found therein with the handwritings/signatures found in Exhibits P-66, P-76, P-90 and P-92.

134. But what was contained in Exhibit P-75 was never admitted by A- 7 to be in his handwriting. Exhibit P-75 was marked through PW-30, the handwriting expert, and not even by the I.O. At least if the I.O. had identified and marked the specimen writings and signatures of A-7 as Exhibit P-75, it was possible for the prosecution to contend that the specimen signatures stood proved. But the I.O. did not identify Exhibit P-75. PW-30 through whom Exhibit P-75 was marked did not directly obtain the specimen writings of A-7. The statement of PW-30 that the specimen writings of A-7 are in Exhibit P-75 was only hearsay evidence, as he did not directly obtain those specimen signatures. Thus, Exhibit P- 75 never stood proved.

135. Even in the questioning Under Section 313 of the Code, no specific question was put to A-7 whether Exhibits P-66, P-76, P-90, P-92 and P- 75 were in his handwritings and whether they contained his signatures. Therefore, what was contained in Exhibit P-75 was not even admitted signatures.

136. In the absence of either admission or proof of the admitted signatures, the High Court could not have resorted to Section 73 of the Evidence Act.

137. In view of the above, the finding recorded by the Trial Court and the High Court as though A-7 committed forgery and cheating by making applications for the issue of demand drafts in the names of bogus firms is wholly unsustainable.

IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 2417 of 2010, 16 of 2011 and 2444 of 2010

Decided On: 15.06.2023

A. Srinivasulu Vs. The State Rep. by the Inspector of Police

Hon'ble Judges/Coram:

V. Ramasubramanian and Pankaj Mithal, JJ.

Citation:  MANU/SC/0723/2023.

Read full judgment here: Click here.

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Supreme court: When the Special Court chooses to take cognizance, the question of the approver being examined as a witness in the Court of the Magistrate as required by Section 306 (4)(a) does not arise

 But in cases where a Special Court itself is competent to take cognizance and also empowered to grant pardon, the procedure Under Section 306 of the Code gets by-passed, as held by this Court in State through CBI v. V. Arul Kumar   MANU/SC/0632/2016 : (2016) 11 SCC 733. An argument was advanced in Arul Kumar (supra) (as seen from paragraph 20 of the Report) that Section 306 of the Code has no application to cases relating to offences under the PC Act. In support of the said argument, the decision in P.C. Mishra v. State (CBI)   MANU/SC/0232/2014 : (2014) 14 SCC 629 was also relied upon. While dealing with the said contention, this Court held in Arul Kumar as follows:

21. Sub-section (1) of Section 5, while empowering a Special Judge to take cognizance of offence without the Accused being committed to him for trial, only has the effect of waiving the otherwise mandatory requirement of Section 193 of the Code. Section 193 of the Code stipulates that the Court of Session cannot take cognizance of any offence as a court of original jurisdiction unless the case has been committed to it by a Magistrate under the Code. Thus, embargo of Section 193 of the Code has been lifted. It, however, nowhere provides that the cognizance cannot be taken by the Magistrate at all. There is, thus, an option given to the Special Judge to straightaway take cognizance of the offences and not to have the committal route through a Magistrate. However, normal procedure prescribed Under Section 190 of the Code empowering the Magistrate to take cognizance of such offences, though triable by the Court of Session, is not given a go-by. Both the alternatives are available. In those cases where charge-sheet is filed before the Magistrate, he will have to commit it to the Special Judge. In this situation, the provisions of Section 306 of the Code would be applicable and the Magistrate would be empowered to exercise the power under the said provision. In contrast, in those cases where Special Judge takes cognizance of offence directly, as he is authorised to do so in view of Section 5(2) of the PC Act, 1988, Section 306 of the Code would get bypassed and as the Special Judge has taken cognizance, it is Section 307 of the Code which would become applicable. Sub-section (2) of Section 5 of the PC Act, 1988 makes this position clear by prescribing that it is the Special Judge who would exercise his powers to tender of pardon as can clearly be spelled out by the language employed in that provision. Section 5(2) is to be read in conjunction with Section 5(1) of the PC Act, 1988. The aforesaid legal position would also answer the argument of the learned Counsel for the Respondent based on the judgment of this Court in A. Devendran [A. Devendran v. State of T.N.,   MANU/SC/1851/1997 : (1997) 11 SCC 720 : 1998 SCC (Cri) 220]. In that case, this Court held that once the proceedings are committed to the Court of Session, it is that court only to which commitment is made which can grant pardon to the approver. The view taken by us is, rather, in tune with the said judgment.

{Para 74}

75. In other words, this Court recognised in Arul Kumar two types of cases, namely (i) those which come through the committal route; and (ii) those where cognizance is taken directly by the Special Judge Under Section 5(1) of the PC Act. In the second category of cases, the Court held that Section 306 of the Code would get by-passed.

76. Therefore, it is clear that when the Special Court chooses to take cognizance, the question of the approver being examined as a witness in the Court of the Magistrate as required by Section 306(4)(a) does not arise. Shri Padmesh Mishra, learned Counsel for the Respondent is therefore right in relying upon the decisions of this Court in Sardar Iqbal Singh v. State (Delhi Administration)   MANU/SC/0131/1977 : (1977) 4 SCC 536 and Yakub Abdul Razak Memon v. State of Maharashtra   MANU/SC/0268/2013 : (2013) 13 SCC 1.

77. In Sardar Iqbal Singh (supra) the offence was triable by the Special Judge who also took cognizance. Therefore, there were no committal proceedings. Though Sardar Iqbal Singh arose under the 1898 Code, Sub-section (2) of Section 337 of the 1898 Code was in pari materia with Section 306(4)(a) of the 1973 Code. Therefore, the ratio laid down in Sardar Iqbal Singh was rightly applied in Yakub Abdul Razak Memon (supra) for coming to the conclusion that where a Special Judge takes cognizance of the case, the occasion for examining the approver as a witness arises only once.

79. In view of the above, we are of the considered view that there was no violation of the procedure prescribed by Section 306(4)(a) of the Code. Thus, we answer the second issue against the Appellants.

 IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 2417 of 2010, 16 of 2011 and 2444 of 2010

Decided On: 15.06.2023

A. Srinivasulu Vs. The State Rep. by the Inspector of Police

Hon'ble Judges/Coram:

V. Ramasubramanian and Pankaj Mithal, JJ.

Author: V. Ramasubramanian, J.

Citation:  MANU/SC/0723/2023.

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What is distinction between S 306 of CR.P.C and S 307 of CR.P.C?

  Learned Additional Sessions Judge relying upon a case of State of Maharashtra .v/s. Abu Salem Abdul Kayyum Ansari and Ors. (2010) 10 SCC 179 observed that in view of the application made by the

approver, not pressing her request to became an approver, she was

relegated to the position of an accused. In my view, the learned

Judge has not properly applied this decision to the facts of the case.

He has also not properly appreciated the provisions of Cr.P.C. The

scheme of the Chapter XXIV and particularly Sections 306 to 308

of the Cr.P.C. is relevant for this purpose. Section 306 provides for

tender of pardon to accomplice. Section 306 inter alia provides for tender of pardon by the Magistrate at any stage of the investigation or inquiry or the trial of the offence. Section 307 provides for the power of the Court to direct the tender of pardon after commitment of a case but before the judgment is passed in the case. The only difference between these two provisions is that when the pardon is tendered by the Magistrate under Section 306 Cr.P.C. the statement of the approver must necessarily be recorded by the Magistrate. In case of tender of pardon under Section 307 by the Court after commitment of a case such recording of statement is not necessary.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH, NAGPUR.

CRIMINAL WRIT PETITION NO. 472 OF 20 23

State of Maharashtra Vs  Madhuri Badrinarayan Gote,

CORAM : G. A. SANAP, J.

DATE : 11/08/2023.

Read full Judgment here: Click here

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Whether accused can request to cross-examine approver after pardon granted to him is recalled?

 Learned Judge however, on the basis of decision in the case of Abu Salem (supra) held that the choice is with the approver, whether to

continue or not to continue as an approver. Learned Judge has

observed that this position is supported by decision in the case of

Abu Salem (supra). In my view, the learned Additional Sessions

Judge has not properly considered the facts in the case of Abu

Salem. In the case of Abu Salem, the co-accused Riyaz Siddique

was an approver. At the time of his examination-in-chief, the

learned Prosecutor found that he was not obeying the conditions of

pardon and not disclosing the true and correct facts related to the

crime. Learned Special Prosecutor therefore issued a certificate in

terms of Section 308 of the Cr.P.C. and stated that the approver has

not complied with the conditions on which the pardon was tendered

to him and prayed that the pardon be withdrawn and he be tried

separately. The pardon was therefore withdrawn/fortified. Learned

Special TADA Court Judge ordered him to be tried separately.

19 In the case of Abu Salem (supra) after withdrawing the

pardon the Advocate for the accused Abu Salem made a request to

the Court to allow him to cross examine the approver. Learned

Judge of the TADA Court granted this request and allowed the

Advocate to cross examine the approver after withdrawing his

pardon. The matter was carried to the Supreme Court. The

Hon’ble Supreme Court after considering the facts of the case and the law held that after withdrawal of the pardon on certificate of public prosecutor such person is liable to be tried as an accused. Such person cannot be further examined by the prosecution. He ceases to be the approver and the witness for the prosecutor. On withdrawal of the pardon, he is relegated to his original position of an accused. He has to be therefore tried separately for the original offences for which he was prosecuted and for the offence of giving false evidence.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH, NAGPUR.

CRIMINAL WRIT PETITION NO. 472 OF 20 23

State of Maharashtra Vs  Madhuri Badrinarayan Gote,

CORAM : G. A. SANAP, J.

DATE : 11/08/2023.

Read full Judgment here: Click here

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Whether accused can withdraw her application to become approver after Pardon Is Granted to her?

 In view of the facts, circumstances and the provisions of law, the only point that falls for consideration is as to whether the approver can be allowed to not press the application made to become an approver before the evidence of the approver is recorded and the procedure provided under Section 308 of the Cr.P.C. is followed ?{Para 13}

14 In my view, the answer to this question has to be emphatic ‘No’. Once the pardon is tendered on such conditions and the conditions are accepted by the accused then the said accused under law gets discharged from the case. The accused then becomes approver/witness for the prosecution. The approver at the stage of trial may support or may not support the case of the prosecution. However, once the pardon is tendered the approver has no choice than to give evidence before the Court as an approver. It needs to be stated that once the approver steps into witness box the approver has prerogative to depose according to his or her wish. In this manner, nobody can compel the approver to give a particular evidence before the Court.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH, NAGPUR.

CRIMINAL WRIT PETITION NO. 472 OF 20 23

State of Maharashtra Vs  Madhuri Badrinarayan Gote,

CORAM : G. A. SANAP, J.

DATE : 11/08/2023

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Whether Magistrate should examine approver if special court has directly taken cognizance of an offence under the Special Act?

 But in cases where a Special Court itself is competent to take cognizance and also empowered to grant pardon, the procedure Under Section 306 of the Code gets by-passed, as held by this Court in State through CBI v. V. Arul Kumar MANU/SC/0632/2016 : (2016) 11 SCC 733. An argument was advanced in Arul Kumar (supra) (as seen from paragraph 20 of the Report) that Section 306 of the Code has no application to cases relating to offences under the PC Act. In support of the said argument, the decision in P.C. Mishra v. State (CBI) MANU/SC/0232/2014 : (2014) 14 SCC 629 was also relied upon. While dealing with the said contention, this Court held in Arul Kumar as follows:

21. Sub-section (1) of Section 5, while empowering a Special Judge to take cognizance of offence without the Accused being committed to him for trial, only has the effect of waiving the otherwise mandatory requirement of Section 193 of the Code. Section 193 of the Code stipulates that the Court of Session cannot take cognizance of any offence as a court of original jurisdiction unless the case has been committed to it by a Magistrate under the Code. Thus, embargo of Section 193 of the Code has been lifted. It, however, nowhere provides that the cognizance cannot be taken by the Magistrate at all. There is, thus, an option given to the Special Judge to straightaway take cognizance of the offences and not to have the committal route through a Magistrate. However, normal procedure prescribed Under Section 190 of the Code empowering the Magistrate to take cognizance of such offences, though triable by the Court of Session, is not given a go-by. Both the alternatives are available. In those cases where charge-sheet is filed before the Magistrate, he will have to commit it to the Special Judge. In this situation, the provisions of Section 306 of the Code would be applicable and the Magistrate would be empowered to exercise the power under the said provision. In contrast, in those cases where Special Judge takes cognizance of offence directly, as he is authorised to do so in view of Section 5(2) of the PC Act, 1988, Section 306 of the Code would get bypassed and as the Special Judge has taken cognizance, it is Section 307 of the Code which would become applicable. Sub-section (2) of Section 5 of the PC Act, 1988 makes this position clear by prescribing that it is the Special Judge who would exercise his powers to tender of pardon as can clearly be spelled out by the language employed in that provision. Section 5(2) is to be read in conjunction with Section 5(1) of the PC Act, 1988. The aforesaid legal position would also answer the argument of the learned Counsel for the Respondent based on the judgment of this Court in A. Devendran [A. Devendran v. State of T.N., MANU/SC/1851/1997 : (1997) 11 SCC 720 : 1998 SCC (Cri) 220]. In that case, this Court held that once the proceedings are committed to the Court of Session, it is that court only to which commitment is made which can grant pardon to the approver. The view taken by us is, rather, in tune with the said judgment.{Para 74}

75. In other words, this Court recognised in Arul Kumar two types of cases, namely (i) those which come through the committal route; and (ii) those where cognizance is taken directly by the Special Judge Under Section 5(1) of the PC Act. In the second category of cases, the Court held that Section 306 of the Code would get by-passed.

76. Therefore, it is clear that when the Special Court chooses to take cognizance, the question of the approver being examined as a witness in the Court of the Magistrate as required by Section 306(4)(a) does not arise. Shri Padmesh Mishra, learned Counsel for the Respondent is therefore right in relying upon the decisions of this Court in Sardar Iqbal Singh v. State (Delhi Administration) MANU/SC/0131/1977 : (1977) 4 SCC 536 and Yakub Abdul Razak Memon v. State of Maharashtra MANU/SC/0268/2013 : (2013) 13 SCC 1.

77. In Sardar Iqbal Singh (supra) the offence was triable by the Special Judge who also took cognizance. Therefore, there were no committal proceedings. Though Sardar Iqbal Singh arose under the 1898 Code, Sub-section (2) of Section 337 of the 1898 Code was in pari materia with Section 306(4)(a) of the 1973 Code. Therefore, the ratio laid down in Sardar Iqbal Singh was rightly applied in Yakub Abdul Razak Memon (supra) for coming to the conclusion that where a Special Judge takes cognizance of the case, the occasion for examining the approver as a witness arises only once.

IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 2417 of 2010, 16 of 2011 and 2444 of 2010

Decided On: 15.06.2023

A. Srinivasulu  Vs. The State Rep. by the Inspector of Police

Hon'ble Judges/Coram:

V. Ramasubramanian and Pankaj Mithal, JJ.

Author: V. Ramasubramanian, J.

Citation: MANU/SC/0723/2023.

Read full Judgment here: Click here

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Are S 114(b) of the Evidence Act and S 133 of the Evidence Act regarding evidence of approver are contrary to each other?

 Before considering that evidence, it would be necessary to state the legal position in regard to the evidence of accomplices and approvers. Section 133 of the Evidence Act lays down that an accomplice shall be a competent witness against an accused person; and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice. Section 114 of the Evidence Act provides that the Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. Illustration (b) to s. 114 says that the Court may presume that an accomplice is unworthy of credit unless he is corroborated in material particulars. There is no antithesis between s. 133 and illustration (b) to s.114 of the Evidence Act, because the illustration only says that the Court 'may' presume a certain state of affairs. It does not seek to raise a conclusive and irre- butable presumption. Reading the two together the position which emerges is that though an accomplice is a competent witness and though a conviction may lawfully rest upon his uncorroborated testimony, yet the Court is entitled to presume and may indeed be justified in presuming in the generality of cases that no reliance can be placed on the evidence of an accomplice unless that evidence is corrobo- rated in material particulars, by which is meant that there has to be some independent evidence tending to incriminate, the particular accused in the commission of the crime. It is hazardous, as a matter of prudence, to proceed. upon the evidence of a self confessed criminal, who, in so far as an approver is concerned, has to testify in terms of the pardon tendered to him. The risk involved in convicting an accused on the testimony of an accomplice, unless it is corroborated in material particulars, is so real and potent that what during the early development of law was felt to be a matter of prudence has been elevated by judicial experience into a requirement or rule of law. All the same, it is necessary to understand that what has hardened into a rule of law is not that the conviction is illegal if it proceeds upon the uncorroborated testimony of an accomplice but that the rule of corroboration must be present to the mind of the Judge and that corroboration may be dispensed with only it the peculiar circumstances of a case make it safe to dispense with it.

Supreme Court of India

Dagdu & Others Etc vs State Of Maharashtra on 19 April, 1977

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Whether court can grant pardon to accused on his request?

Before the Special Judge acts to tender pardon, he must, of course, know the nature of the evidence the person seeking conditional pardon is likely to give, the nature of his complicity and the degree of his culpability in relation to the offence and in relation to the co-accused. What is meant by public policy is illustrated by a case from Dublin Commission Court (Reg v. Robert Dunne, 5 Cox Cr. cases 507) in which Torrens, J. on behalf of himself and Perrin, J. observed as follows :-

"From what I can see of this case, this witness Bryan, who has been admitted as an approver by the Crown is much the more criminal of the two on his own showing..... I regret that this witness, Bryan, has been admitted as evidence for the Crown and thus escaped being placed upon his trial. It is the duty of magistrates to be very cautious as to whom they admit to give evidence as approvers, and they should carefully inquire to what extent the approver is mixed up with the transaction, and if he be an accomplice, into the extent of his guilt......".

16. In this case the Special Judge made no effort to find out what Jagasia had to disclose. The English law and practice is (a) to omit the proposed approver from the indictment, or (b) to take his plea of guilty on arraignment, or (c) to offer no evidence and permit his acquittal, or (d) to enter a nolle prosequi. In our criminal jurisdiction there is a tender of a pardon on condition of full disclosure. Section 8(2) of the Criminal Law Amendment Act is enabling. Without recourse to it an accused person cannot be examined as a witness in the same case against another accused. To determine whether the accused's testimony as an approver is likely to advance the interest of justice, the Special Judge must have material before him to show what the nature of that testimony will be. Ordinarily it is for the prosecution to ask that a particular accused, out of several may be tendered pardon. But even where the accused directly applies to the Special Judge, he must first refer the request to the prosecuting agency. It is not for the Special Judge to enter the ring as a veritable director of prosecution.

The power which the Special Judge exercises is not on his own behalf but on behalf of the prosecuting agency and must, therefore, be exercised only when the prosecuting joins tendered pardon because it does not need approver's testimony. It may also not like the tender of pardon to the crime or the worst offender. The proper course for the Special Judge 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 interests of a successful prosecution of the other offenders whose conviction is not easy without the approver's testimony, it will indubitably agree to the tendering of pardon.

The Special Judge (or the Magistrate) must not take on himself the task of determining the propriety of tendering pardon in the circumstances of the case. The learned Special Judge did not bear these considerations in mind and took on himself something from which he should have kept aloof. All that he should have done was to have asked for the opinion of the public prosecutor on the proposal. But since the Public Prosecutor, when appearing in the High Court, stated that the prosecution also considered favorably the tender of pardon to Jagasia we say no more than to caution Magistrates and Judges in the matter of tender of pardon suo motu at the request of the accused. This practice is to be avoided. Since the prosecution in this case also wants that the tender of pardon be made it is obvious that the appeal must fail.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 148 of 1967

Decided On: 28.09.1967

Pascal Fernandes  Vs.  The State of Maharashtra and Ors.

Hon'ble Judges/Coram:

C.A. Vaidialingam, M. Hidayatullah and Vashishtha Bhargava, JJ.

Citations: 1968 AIR 594, 1968 SCR (1) 695

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Whether court should revoke pardon granted to approver on the ground that he is not co-operating during investigation?

The Certificate, of the Public Prosecutor, in the present case,

does not allege that, before the Court, the respondent concealed

anything essential, or gave false evidence. In fact, a holistic reading of

the application, filed by the petitioner before the learned Special

Judge, reveals that the grievance of the petitioner is, essentially, that

the respondent has not cooperated during investigation, and has

withheld material in his possession. Mr. Handoo is right when he

contends that non-co-operation, during investigation, is not one of the

circumstances contemplated, by Section 308 (1), as justifying issuance

of certificate by the Public Prosecutor. Quite obviously, this is because

the condition, whereunder pardon is granted to the accomplice, is

candour before the court, and not candour before the investigating

officer. Non-cooperation with the investigative process, therefore, is

irrelevant, insofar as Section 308 (1) is concerned. So long as the

approver does not conceal anything essential before the Court, and

does not give false evidence before the Court, no occasion, for

issuance of any certificate, by the Public Prosecutor, under Section

308 (1), can be said to arise. The grounds, urged in the application of

the petitioner, preferred before the learned Special Judge did not,

therefore, make out a case for issuance of Certificate under Section

308 (1), by the Public Prosecutor. The learned Special Judge,

therefore, rightly chose not to “revoke the pardon” extended to the

respondent, on the basis of the said averments.

 IN THE HIGH COURT OF DELHI AT NEW DELHI

Pronounced on: 8th June, 2020

 CRL.M.C. 1477/2020 & CRL.M.A. 6491/2020, CRL.M.A.

7117/2020

DIRECTORATE OF ENFORCEMENT Vs  RAJIV SAXENA

CORAM:

HON'BLE MR. JUSTICE C. HARI SHANKAR

Citation: 2020 SCC OnLine Del 719

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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.

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Whether accused can be permitted to cross examine approver at pre-committal stage?

The examination which is contemplated under Section 306(4)
of the Code, cannot be equated with the 'examination' of a witness under
Section 138 of the Evidence Act. If what is contended by the learned

counsel for the respondent is to be accepted, and the accused is given a
right to cross examine an approver at the pre-committal stage, the same
would not only be contrary to law, but would lead to hazardous
consequences, as a Magistrate would be required to deal with and decide
the admissibility of any question raised in the examination/cross
examination by the accused, in a case exclusively triable by the Court of
Sessions. Under Section 306 of Code of Criminal Procedure, what cannot
be lost sight of is, that when an approver is being examined by a
Magistrate, he is merely recording his statement, after grant of pardon and
as such, he merely acts as a post office by recording the statement under
Section 306(4) and thereafter, forwards it to the Court of Sessions, which
is the Court competent to try the case. Thus, the term ‘examination’ used
in Section 306(4) of the Code, cannot be construed to mean an examination,
contemplated under Section 138 of the Evidence Act. The accused will get
an opportunity to cross examine the approver, only after the case is
committed to the Court of Sessions, when the approver is examined as a
prosecution witness, after which the accused will have a right to cross
examine the approver and bring out the contradictions or improvements
made by him during his evidence at the trial.

14. In conclusion, we may note that under Section 306 of the
Cr.P.C, the Magistrate is only empowered to examine the approver, as at this
stage, the proceeding before the concerned Magistrate is neither an inquiry
nor a trial, and therefore the accused has no right to cross-examine the
approver. The Magistrate does not have the jurisdiction and discretion to
“appreciate the evidence” which will be adduced before the Sessions Court
and give any findings on the merits of the case. His duty is only to record
the examination under Section 306(4)(a) and forward it to the Court of
Sessions, whilst committing the case. The examination of the approver as
contemplated under Section 306(4)(a) cannot in any circumstance, be
equated with the examination contemplated under Section 138 of the
Evidence Act. Infact, the examination is more or less akin to an examination
contemplated under Section 200 of the Code of Criminal Procedure. Hence,
an accused has no right to cross examine an approver at the pre-committal
stage.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
WRIT PETITION NO.237 OF 2015

The State of Maharashtra V  Narendra G. Goel

CORAM : V. M. KANADE &
 REVATI MOHITE DERE, JJ.

PRONOUNCED ON : 18th APRIL, 2016
Citation:2016 CRLJ 4227 Bom

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Whether extent of culpability of accomplice in an offence is material for Granting him pardon?

The first question that we have to decide is whether the High Court is right in coming to the conclusion that for being an approver within the meaning of Section 306, Cr.P.C., a person has to inculpate himself in the offence and has to be privy to the crime, otherwise he removes himself from the category of an accomplice and places himself as an eyewitness. Section 306, Cr.P.C. provides that with a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in or privy to an offence, the Magistrate may tender a pardon to such person on condition of his making a full and true disclosure of the whole circumstances within his knowledge relative to the offence and to every other person concerned, whether as principal or abettor, in the commission thereof. This Court in the case of Suresh Chandra Bahri v. State of Bihar [1995 Supp.(1) SCC 80] explained the object of Section 306 Cr.P.C. in the following words:

“The object of Section 306 therefore is to allow pardon in cases where heinous offence is alleged to have been committed by several persons so that with the aid of the evidence of the person granted pardon the offence may be brought home to the rest. The basis of the tender of pardon is not the extent of the culpability of the person to whom pardon is granted, but the principle is to prevent the escape of the offenders from punishment in heinous offences for lack of evidence. There can therefore be no objection against tender of pardon to an accomplice simply because in his confession, he does not implicate himself to the same extent as the other accused because all that Section 306 requires is that pardon may be tendered to any person believed to be involved directly or indirectly in or privy to an offence.”

Thus, the High Court failed to appreciate that the extent of culpability of the accomplice in an offence is not material so long as the magistrate tendering pardon believes that the accomplice was involved directly or indirectly in or was privy to the offence. 

Reportable

Supreme Court of India

State Of Rajasthan vs Balveer @ Balli & Anr. on 31 October, 2013

Author: A K Patnaik

Citation;2013(4) crimes 464 SC

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