Legal Provisions of Section 306 of Code of Criminal Procedure, 1973 (Cr.P.C.), India.
Tender of pardon to accomplice:
Section 306 deals with the tender of pardon to an accomplice. The object of this section is to allow pardon to be tendered in cases where the grave offence is alleged to have been committed by several persons so that with the aid of the evidence of the person pardoned, the offence could be brought to the rest.
The gravity of the offence is to be determined with reference to the sentence awardable with respect to that offence. Such tendering of conditional pardon to the accomplice enables the Court to know the fullest details about the cases where it is otherwise impossible to establish the guilt of the accused from other evidence .
It is not necessary that an accomplice applying for tender of pardon must be a party to the offence or must be an actual participant in the commission of the offence. He may be any other person who is not even summoned as an accused.
The section enumerates three types of cases in respect of which pardon can be tendered, namely,
(i) Offences triable exclusively by the Court of Session;
(ii) Offences triable by the Court of Special Judge appointed under Criminal Law Amendment Act, 1952; and
(iii) Offences punishable with imprisonment which may extend to seven years or with a more severe sentence.
Thus the pardon can be tendered only in respect of the three categories of cases mentioned above and none else. In case of joinder of offences involving combination of offences arising out of the same transaction, the committing Magistrate should commit the whole case to the Court of Session for trial.
The Magistrates who are empowered to tender pardon under Section 306 (1) are:—
(i) The Chief Judicial Magistrate or a Metropolitan Magistrate are empowered to tender pardon at any stage of the investigation or inquiry into or trial of the offence;
(ii) The Magistrate of the first class inquiring into or trying the offence.
Where the Magistrate of the first class inquiring into the offence has declined to grant pardon, it does not take away the power of the Chief Judicial Magistrate to entertain further application for grant of pardon. Though he is empowered to consider such a further application but he will have due regard to the reason given by the Magistrate of the first class for refusing to grant pardon.
If the Magistrate granting pardon does not record reasons, the order of the Magistrate may be quashed on this sole ground, because it will be difficult for the revising Court to decide about the correctness of the order in the absence of the reasons therefore.
According to sub-section (4) when there is an approver, he shall be examined as a witness in the Court of Magistrate taking cognizance of the offence before committal to the Court of Session. The accused should also be given an opportunity to cross-examine him at this stage. The approver has to disclose the evidence before his committal so that the accused has opportunity to prove the untrustworthiness of the approver’s evidence if he so desires in his defence.
The Supreme Court has categorically observed that the examination of approver in committal Court as well as trial Court is mandatory even if he retracts from his earlier statement. However, the accused has no right to cross-examine the approver during investigation.
Sub-section 4 (b) requires an approver to be kept in judicial custody until the termination of the trial if he is not already released on bail. The object is not to punish the approver but to protect him from being exposed to harm from the accused or accomplices.
An approver who has been granted pardon no longer remains as an accused, instead he is a witness.
The Supreme Court in Sitaram Sao alias Mungeri v. State of Jharkhand made it clear that examination of approver should be conducted after .grant .of pardon to him. He then becomes a witness and has to be examined in presence of accused and also cross- examined.
The case involved abduction, looting and murder by the accused driver with others. He abducted, looted and killed the wife of his employer. One of the accused turned approver and gave sequence of events as to how conspiracy was hatched and how it was executed. Injuries found on the body of the deceased and recovery of looted money from the accused driver corroborated the evidence of approver.
Under these circumstances conviction of the accused on evidence of approver was held to be proper and in order. The appeal of the accused (appellant) was, therefore, without merit and deserved to be dismissed.
In a murder case, the accused recorded his confessional statement under Section 164 though the circumstances did not suggest his involvement in the murder. The witnesses also doubted his involvement. The Madhya Pradesh High Court did not believe the prosecution story and acquitted him.
The Court held that it would have been proper on the part of the police to get the accused declared as an approver under Section 306 of the Code rather than giving him status of an approver on the basis of the accuser’s statement. The Court pointed out that the police has no power to declare the accused as approver.
The purpose of the Court in granting pardon to an approver is only to obtain his evidence as a witness. The fact that the accused has made a confessional statement under Section 164 of Cr.P.C. cannot be a factor weighing against tender of pardon under Section 306 of the Code.
In Randhir Basu v. State of West Bengali the Supreme Court held that the person who is granted pardon under Section 306 has to be examined by the Magistrate as a witness as per sub-section (4) of Section 306 and it cannot be demanded that such person should be examined in the presence of the accused and that the accused has the right to cross-examine the person so pardoned at that stage.
The proceeding of the Magistrate is neither an inquiry nor trial, therefore, the argument that such person should be examined as a witness in open Court and the accused should be given an opportunity to cross- examine him is not tenable.
In Renuka Bai v. State of Maharashtra, the co-accused who was granted pardon under Section 306 was guilty of giving false evidence along-with the accused. But the Court realised that the co-accused who was granted pardon had co-operated in the Court proceeding and disclosed full and true information about the crime. Therefore, the High Court instituted proceedings under Section 306 exercising its inherent powers under Section 482, Cr. P.C. which was upheld by the Supreme Court as proper and justified.
The Effect of Pardon:
Tender of pardon protects the person concerned not only against the prosecution for the offence in which pardon was granted but also from prosecution for any other offence of which he appears to have been guilty in connection with the same.
The Supreme Court has ruled that the release of approver on bail by the High Court would neither affect the validity of the pardon granted to him nor the trial could be vitiated on this count.
The provisions of Section 306 will have no application where the accused person has actually been convicted of the crime or he has not admitted his complicity in the crime. It is not necessary that grant of pardon should always be at the behest of prosecution.
The evidence of an approver to be trustworthy must satisfy two crucial tests viz., (1) it must show that he is a reliable witness; and (2) it must be sufficiently corroborative. It is however, not necessary to examine an approver on oath.
Where approver has been given pardon for trial for the offence in respect of which he has been given pardon, but the Court is satisfied that the approver has not given full details of crime despite public prosecutor’s failure to initiate action, the Court would proceed against the approver by invoking his inherent powers under Section 482 of the Code.