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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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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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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Important Notes on Criminal Procedure Code

1)Notes on appeal to session court

https://www.lawweb.in/2018/05/notes-on-appeal-to-session-court.html

2)Notes on tender of pardon to accomplice

https://www.lawweb.in/2018/05/notes-on-tender-of-pardon-to-accomplice.html

3)NOTES ON EXAMINATION OF ACCUSED U/S 313 OF CRPC

https://www.lawweb.in/2018/05/notes-on-examination-of-accued-us-313.html

4)NOTES ON BAIL AND ANTICIPATORY BAIL UNDER CR.P.C

https://www.lawweb.in/2018/05/notes-on-bail-and-anticipatory-bail.html

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Important provisions of Electricity Act, 2003.

135. Theft of electricity

136. Theft of electric lines and materials

137. Punishment for receiving stolen property.
138. Interference with meters or works of licensee.
139. Negligently breaking or damaging works.
140. Penalty for intentionally injuring works
150. Abetment.—(1) Whoever abets an offence punishable under this Act, shall, notwithstanding anything contained in the Indian Penal Code, be punished with the punishment provided for the offence.

151. Cognizance of offences.—No court shall take cognizance of an offence punishable under this Act except upon a complaint in writing made by the Appropriate Government or Appropriate Commission or any of their officer authorised by them or a Chief Electrical Inspector or an Electrical Inspector or licensee or the generating company, as the case may be, for this purpose:

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Whether accused can be cited as witness without following procedure of S 306 of CRPC?

The submission made on behalf of the Appellants that the prosecution was entitled to cite the three original Accused as witnesses, in the given fact situation, having regard to larger interest of justice to strengthen the prosecution case against more serious Accused cannot be held to be without substance. This could be done even without recourse to Section 306 Code of Criminal Procedure It is certainly open to the Court to finally decide whether cognizance ought to be taken or not after balancing all the relevant considerations. The decision of the prosecutor to cite them as witnesses does not bind the Court and such decision can be interfered with if interest of justice so requires.

7. In the present case, decision of the High Court has not been arrived at by weighing the interest of justice in having the Appellants as Accused instead of their utility as witnesses. The decision is based on the sole consideration of there being material against them. It was erroneously assumed that without following the procedure of Section 306 Code of Criminal Procedure, an accomplice could not be cited as a witness. Further question, whether rejecting the proposal of prosecution to cite the Appellants as witnesses will jeopardise prosecution case against more serious accused, has not been gone into. Thus, the matter needs fresh consideration on this touchstone.

IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 939-940, 941-942/2017,

Decided On: 23.08.2017

 Girish Sharma  Vs.  The State of Chhattisgarh and Ors.

Hon'ble Judges/Coram:

A.K. Goel and U.U. Lalit, JJ.

Citation:(2018) 15 SCC192

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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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When court should not reject application of accused for grant of pardon U/S 306 of CRPC?

In the matter of Suresh Chandra Bahri v. State of Bihar with
Gurbachan Singh v. State of Bihar and Rajpal Sharma v. State of
Bihar (supra) it has been held by the Apex Court as under:
“We have already reproduced above Section 306 of the Code
the provisions of which apply to any offence triable
exclusively by the Court of Special Judge to any offence
punishable with imprisonment extending to seven years or
with a more serious sentence. Section 306 of the Code lays
down a clear exception to the principle that no inducement
shall be offered to a person to disclose what he knows about
the procedure (sic). Since many a times the crime is
committed in a manner for which no clue or any trace is
available for its detection and, therefore, pardon is granted
for apprehension of the other offenders for the recovery of the incriminating objects and the production of the evidence
which otherwise is unobtainable. The dominant object is that
the offenders of the heinous and grave offences do not go
unpunished, the Legislature in its wisdom considered it
necessary to introduce this section and confine its operation
to cases mentioned in Section 306 of the Code. 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.”
14. In the matter of Jayalakshmi Jaitly v. CBI (supra) the High Court
of Delhi has held as under :
“The pardon proceeding which takes before the
Magistrate is neither an enquiry nor a trial in which an
opportunity must be given to the other accused to show to
the Court that the statement of the accused seeking pardon is
not true. Only during the course of trial, the opportunity will
be given to the accused to show to the Court that the
approver's evidence at the trial is untrustworthy in view of the
contradiction or improvements made by him by allowing the
accused to cross-examine. Petitioner’s contention that the
statement given by 2nd respondent is self-exculpatory and
has been given implicating others in order to escape from the
punishment has no merit at this juncture. For granting pardon
under Section 306 Cr.P.C., it is not a pre-requisite condition
that the statement of a person on whose behalf pardon is
sought must be in the nature of confession or he must
implicate himself fully in the offence. What the section
requires is to obtain statement from the person who is supposed to be directly or indirectly concerned in or privy to
the offence and such a person can be granted pardon on the
condition of his making a full and true disclosure of whole of
the circumstance within his knowledge relative to the offence.
(CBI vs. N.K. Amin & Ors., 2011 (3) RCR (Criminal) 834).”
15. Thus in view of the aforesaid factual and legal position, this Court
finds sufficient force in the argument advanced on behalf of the CBI that
the trial Court should not have weighed the evidence yet to be produced
while deciding the application under Section 306 of the Code. The trial
Court has further erred in law to hold that in case the pardon is granted to
the respondent, he will not disclose the true facts and will not be a truthful
witness. This finding recorded by the CBI Court is without any basis and
there was no occasion for it to record the said finding. Special Judge has
failed to appreciate that the respondent being the middleman between
Khaitain Group, CCIT and JCIT is an important connecting link to prove the
entire conspiracy of obtaining illegal gratification. The CBI was therefore
fully justified in filing the application under Section 306 of the Code for
grant of pardon to the respondent.
HIGH COURT OF CHHATTISGARH, BILASPUR
CRR No. 705 of 2015
 Central Bureau Of Investigation  Vs  O.P. Singhania 
Coram:
Hon'ble Shri Justice Pritinker Diwaker
Dated:14/01/2016
Citation: 2016 CRLJ 2830

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Whether CJM can tender pardon to accused after commitment of case to session court?

In view of the rival submissions, the first question that arises for consideration is whether the approver's evidence can at all be relied upon to bring home the charge against the accused persons? It is no doubt true that the very object of granting pardon to an accused is to unfold the truth in grave offence so that other accused persons involved in the offence could be brought home with the aid of the evidence of the approver. But all the same the legislative mandate as well as the safeguards enshrined in the provisions of the Code for the accused cannot be given a go by merely because of gravity of the offence. With this background in mind it would be necessary to examine the provisions of the Code for testing the correctness of the rival submissions. Coming now to the question as to whether the Chief Judicial Magistrate could have at all granted pardon to the accused even after the committal of the proceedings to the Court of Sessions, the same would depend upon the interpretation of Sections 306 and 307 of the Code. A combined reading of the aforesaid two provisions would indicate that under Section 306 power has been conferred upon the Chief Judicial Magistrate or a Metropolitan Magistrate as well as the Magistrate of the First Class to tender pardon to a person on condition of his making a full and true disclosure of whole of the circumstances within his knowledge relating to the offence. The only distinction between the two sets of Magistrates for exercise of their power lies at the stage when the power can be exercised. While a Magistrate of the First Class can exercise the power while enquiring into or trying the offence in question, the Chief Judicial Magistrate or a Metropolitan Magistrate can exercise the power at any stage of investigation or enquiry into or trial of the offence which they themselves may not be trying. But under Section 307 the power has been conferred upon the Court to which the commitment is made to grant pardon. In other words once a proceeding is committed to a Court of Sessions then only the said Court can exercise power to tender pardon to an accused. Section 307 of the Code corresponds to Section 338 of Criminal Procedure Code, 1898, If the two provisions are examined in juxtaposition it would be clear that while under Section 338 of the old Code after commitment is made the Court to which the commitment was made could himself tender pardon to an accused or could order the committing Magistrate or the District Magistrate to tender pardon, but under Section 307 of the Code of 1973 the Court to whom commitment is made, no longer retains the power to order the committing Magistrate or the District Magistrate to tender pardon. In other words underSection 307 of the present Code after commitment of a case the only Court which can tender pardon is the Court to which the commitment has been made. It would be appropriate at this stage to extract Section 338 of the old Code and the corresponding provisions of Section 307 of the new Code:

338. Power to direct tender of pardon. - At any time after commitment, but before judgment is passed the Court to which the commitment is made may, with the view of obtaining on the trial the evidence of any person supposed to have been directly or indirectly concerned in, or privy, to any, any such offence, tender, or order the committing Magistrate or the District Magistrate to tender, a pardon on the same condition to such person.

307. Power to direct tender of pardon.- At any time after commitment of a case but before judgment is passed, the Court to which the commitment is made may, with a view to obtaining at the trial the evidence of any person supposed to have been directly or indirectly concerned in, or privy to, any such offence, tender a pardon on the same condition to such person.

7. In view of the aforesaid change in the provisions it is difficult for us to accept the contention of the learned Counsel appearing for the State that even under Section 307 after commitment of a case a Chief Judicial Magistrate retains the power to grant pardon. It may not be out of place to notice the recommendations of the Law Commission in its 41st Report in paragraph 24.23;

24.23. Under Section 338, the Court of Session may at any time after commitment of the case, but before passing judgment, either tender pardon itself, or may "order the committing Magistrate or the District Magistrate" to tender pardon. Though this power is rarely resorted to by a Court of Session, it will be useful to retain the Section. But in view of the abolition of the commitment proceedings the Court of Session need not be authorised to direct "the committing Magistrate" or any other Magistrate to tender pardon. The section may be revised to read as follows:

338. At any time after commitment of a case but before judgment is passed, the Court of Session may, with the view to obtaining at the trial the evidence of any person supposed to have been directly or indirectly concerned in or privy to, any such offence, tender a pardon on the same condition to such person.

8. The aforesaid Section has now taken the place of Section 307 in the new Code. This indicates that in the changed circumstances the legislature thought it necessary to delete the expression "or order the committing Magistrate or the District Magistrate to tender a Pardon" from Section 307 of the present Code which was there in Section 338 of the previous Code. On a plain reading of the provisions contained in Sections 306 and 307 of the Code and on examining the changes that have been brought about by the legislature from the corresponding provisions of the old Code, the conclusion is irresistible that under the new Procedure Code of 1973 once a case is committed to the Court of Sessions then it is only that Court to which the proceedings have been committed can tender pardon to a person and the Chief Judicial Magistrate cannot be said to have concurrent jurisdiction for tendering pardon.

Supreme Court of India

A. Deivendran vs State Of T.N. on 21 October, 1997

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When magistrate is empowered to tender pardon to accused in offence triable by session court ?

Sub-section (1) of Section 306 of the Code very categorically and unambiguously mentions Metropolitan Magistrate as one of the Judicial Officers who can exercise the power of tender of pardon to accomplice. Thus, Metropolitan Magistrate is specifically given such a power Under Section 306 of the Code. Sub-section (2) of Section 306 makes it clear that this Section applies even to those offences which are triable exclusively by the Court of Session or by the Court of a Special Judge appointed under the Criminal Law Amendment Act, 1952. Thus, even where the cases are triable by a Special Judge, the Metropolitan Magistrate is authorised to grant tender of pardon. Sub-section (3) and Sub-section (4) outline the procedure that is to be followed in discharging this function. Sub-section (5), which is material for Court's purpose, stipulates that after the person has accepted a tender of pardon made under Sub-section (1) and has been examined under Sub-section (4), the Magistrate taking cognizance of the offence will not make any further inquiry in the case and commit it for trial to a Court of Special Judge, if the offence is triable exclusively by that Court.[14]

This Sub-section makes the position beyond any pale of doubt, that even when an offence is triable by a Session Judge, the Magistrate has the requisite power to take cognizance and grant tender of pardon and, thereafter, commit the case to the Special Judge for trial. Section 307 of the Code restricts the power to grant tender of pardon by conferring it in the hands of the Court to which the commitment is made, only after the commitment of a case. This provision, also lends support to the position taken by the Appellant, as it makes it clear that after the committal of the case, it is only that Court to which the commitment is made has the power to tender a pardon, thereby implying that before the commitment of case, Magistrate is duly empowered. Section 308 of the Code is of no consequence to decide the controversy before the Court as it deals with the trial of person not complying with conditions of pardon.[14]

On a plain reading of Section 306 in conjunction with Section 307 of the Code, it becomes manifest that Magistrate is duly empowered to grant tender of pardon even in respect of the cases which are triable by the Session Court or by the Special Judge.[15]

 This Section treats some of the acts of the Magistrate, specified in Clauses (a) to (i) as 'irregularities'. These are treated as irregularities even when the Magistrate is not 'empowered by law to do' those acts. Tendering a pardon Under Section 306 of the Code is included in those acts of "irregularities". Therefore, even if one presumes that the Magistrate was not empowered (though the Court has held otherwise), the order passed by the Magistrate is saved by Section 460(g) of the Code.[20]

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 499 of 2016 

Decided On: 13.05.2016

State through CBI, Chennai Vs.  V. Arul Kumar

Coram:A.K. Sikri and R.K. Agrawal, JJ.

Citation:AIR 2016 SC 2551,(2016) 11SCC733

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Whether Magistrate can grant pardon to accomplice during investigation?

Bangaru Laxman (supra), therefore, emphasizes the concurrent jurisdiction of the Special Judge as well as the Chief Judicial Magistrate or Metropolitan Magistrate to grant pardon during investigation, but does not say that the Metropolitan Magistrate has no power Under Section 306 Code of Criminal Procedure to grant pardon during the investigation i.e. before filing of charge-sheet before the Special Judge. During investigation, in our view, both the Special Judge as well as the Magistrate acting Under Section 306 Code of Criminal Procedure have concurrent jurisdiction to entertain application of pardon, which facilitates proper investigation of the crime. But, as already indicated, after the committal of the case, the pardon granted by the Magistrate is not a curable irregularity.

15. We may, in this regard, refer to Section 460 Code of Criminal Procedure which refers to nine kinds of curable irregularities, provided they are caused erroneously and in good faith. Irregularity caused while granting pardon is dealt with in Section 460(g) Code of Criminal Procedure. The relevant part of that Section reads as follows:

460. Irregularities which do not vitiate proceedings.

If any Magistrate not empowered by law to do any of the following things, namely:

(g) to tender a pardon Under Section 306;

erroneously in good faith does that thing, his proceedings shall not be set aside merely on the ground of his not being so empowered.

Section 461 Code of Criminal Procedure speaks of irregularities which vitiate proceedings.

16. We have already held, both the Magistrate as well as the Special Judge has concurrent jurisdiction in granting pardon Under Section 306 Code of Criminal Procedure while the investigation is going on. But, in a case, where the Magistrate has exercised his jurisdiction Under Section 306 Code of Criminal Procedure even after the appointment of a Special Judge under the PC Act and has passed an order granting pardon, the same is only a curable irregularity, which will not vitiate the proceedings, provided the order is passed in good faith. In fact, in the instant case, the Special Judge himself has referred the application to Chief Metropolitan Magistrate/Metropolitan Magistrate to deal with the same since the case was under investigation. In such circumstances, we find no error in Special Judge directing the Chief Metropolitan Magistrate or the Metropolitan Magistrate to pass appropriate orders on the application of CBI in granting pardon to second Respondent so as to facilitate the investigation.

REPORTABLE

Supreme Court of India

P.C.Mishra vs State(C.B.I) & Anr. on 27 March, 2014

Author: K Radhakrishnan

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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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Whether special Judge has power to grant pardon to accomplice under prevention of Corruption Act?

Special Judge has power to grant pardon to accomplice under prevention of corruption act at any stage of proceeding. As per sec. 306 of CRPC CJM, MM Or JMPC inquiring into or trying the offence at any stage of inquiry or trial may tender pardon to accomplice.

Supreme Court of India

Bangaru Laxman vs State Tr.C.B.I & Anr. on 22 November, 2011

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