Analysis of Section 306 Cr.P.C.

An Exposition of Section 306 Cr.P.C.: The Law of Tender of Pardon to Accomplices in India

Introduction

Section 306 of the Code of Criminal Procedure, 1973 (Cr.P.C.) embodies a critical, albeit controversial, tool in the prosecutorial arsenal: the power to tender a pardon to an accomplice in exchange for their testimony. This provision aims to unravel complex criminal conspiracies and bring offenders to justice, particularly in cases where direct evidence is scarce. The underlying philosophy is that it is sometimes pragmatic to let a lesser offender go free to secure the conviction of more culpable individuals involved in heinous crimes. However, the very nature of accomplice evidence – emanating from a self-confessed criminal with a clear incentive to prevaricate – necessitates stringent procedural safeguards and careful judicial scrutiny. This article seeks to provide a comprehensive analysis of Section 306 Cr.P.C., delving into its objectives, procedural framework, the rights and obligations of an approver, the evidentiary value of their testimony, and the various legal challenges and interpretations articulated by the Indian judiciary.

The Object and Essential Conditions for Tender of Pardon

The primary objective of Section 306 Cr.P.C. is to obtain the evidence of a person supposed to have been directly or indirectly concerned in or privy to an offence, thereby aiding the prosecution in bringing other offenders to book. The Supreme Court in Suresh Chandra Bahri v. State of Bihar[1], a principle reiterated in subsequent cases like NATIONAL INVESTIGATION AGENCY v. MOHAMMED AYUB[2] and ASHAL KUMAR THAPA AND ANR. v. STATE OF SIKKIM[3], elucidated that this provision is intended for cases where a grave offence is alleged to have been committed by several persons, and it is difficult to unearth the crime without the aid of an accomplice's testimony.

Section 306(1) Cr.P.C. stipulates:

“(1) With a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in or privy to an offence to which this section applies, the Chief Judicial Magistrate or a Metropolitan Magistrate at any stage of the investigation or inquiry into, or the trial of, the offence, and the Magistrate of the First Class inquiring into or trying the offence, at any stage of the inquiry or trial, may tender a pardon to such person on condition of his making a full and true disclosure of the whole of the circumstances within his knowledge relative to the offence and to every other person concerned, whether as principal or abettor, in the commission thereof.”[4]
This tender of pardon is contingent upon the accomplice making a "full and true disclosure" of all circumstances within their knowledge relating to the offence and other persons involved.[5] The authorities empowered to tender such pardon are the Chief Judicial Magistrate (CJM) or a Metropolitan Magistrate (MM) at any stage of investigation, inquiry, or trial, and a Magistrate of the First Class during inquiry or trial.[4]

Procedural Framework and Judicial Oversight

Distinction between Section 306 and Section 307 Cr.P.C.

A crucial distinction exists between the powers under Section 306 and Section 307 Cr.P.C. Section 306 Cr.P.C. is applicable when the order of committal has not yet been passed. Once a case has been committed to the Court of Session, the power to grant pardon vests in that court under Section 307 Cr.P.C.[4] The Supreme Court in A. Devendran v. State Of T.N.[6] held that a pardon granted by the Chief Judicial Magistrate after the case had been committed to the Court of Session was illegal and not a curable irregularity, thereby vitiating the approver's evidence.

Mandatory Procedural Safeguards

Section 306 Cr.P.C. incorporates several procedural safeguards. Sub-section (3) of Section 306 mandates that every Magistrate who tenders a pardon must record their reasons for doing so and whether the tender was accepted by the person to whom it was made.[5] This ensures transparency and allows for judicial review of the decision-making process. It has been observed that the Special Judge should ascertain what evidence the accused will give to enable him to decide whether pardon should be granted.[3]

Section 306(4)(a) requires that every person accepting a tender of pardon made under sub-section (1) shall be examined as a witness in the Court of the Magistrate taking cognizance of the offence and in the subsequent trial, if any.[7] This examination is mandatory.[8]

Furthermore, Section 306(5) Cr.P.C. deals with the committal of the case if the offence is triable exclusively by the Court of Session or by the Court of a Special Judge. The provision has been subject to interpretation regarding to which court the case should be committed after pardon, with concerns raised about potential prejudice to the accused if procedural nuances are overlooked.[9]

Judicial Discretion in Granting Pardon

While the prosecution's satisfaction regarding the approver's credentials is an important factor,[10] the decision to tender pardon is ultimately a judicial act. The Magistrate must exercise their own judicial discretion and not act solely on the opinion of the Public Prosecutor.[11] The court must be satisfied that the tender of pardon is necessary to obtain crucial evidence that might otherwise be unavailable.

The Approver: Status, Rights, and Obligations

Transformation from Accused to Witness

Upon accepting a tender of pardon, the person ceases to be an accused (for that specific offence, subject to fulfilling conditions) and transforms into a witness for the prosecution.[8] An accomplice is a competent witness under Section 133 of the Indian Evidence Act, 1872, and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice.[12] The obligation to testify truthfully remains even if the approver later attempts to resile from their earlier statements made during the grant of pardon.[8]

The Mandate of Custody: Section 306(4)(b)

Section 306(4)(b) Cr.P.C. mandates that a person who has accepted a tender of pardon shall, unless they are already on bail, be detained in custody until the termination of the trial. This provision has been consistently interpreted by various High Courts as mandatory.[13] The Delhi High Court in Prem Chand v. State[13] elaborated that the object behind this mandatory detention is twofold: firstly, to protect the approver from the wrath of their erstwhile confederates, and secondly, to prevent them from being tempted to resile from the terms of the pardon due to external influences.

Despite its mandatory nature, the constitutional validity of Section 306(4)(b) has been challenged, particularly in light of Article 21 of the Constitution. The Kerala High Court in Saidevan Thampi v. State Of Kerala & Ors.[14] acknowledged the potential for hardship and considered that the High Court might possess powers (e.g., under Section 482 Cr.P.C.) to grant release in exceptional circumstances, thereby refraining from striking down the provision. However, the general rule remains that an approver cannot be released on bail by the trial court.[15]

Protection Against Self-Incrimination

An approver, when examined as a witness, is protected by Section 132 of the Indian Evidence Act, 1872. This section stipulates that a witness shall not be excused from answering any question as to any matter relevant to the matter in issue in any suit or in any civil or criminal proceeding, upon the ground that the answer to such question will criminate, or may tend directly or indirectly to criminate, such witness. However, the proviso to Section 132 ensures that no such answer, which a witness shall be compelled to give, shall subject him to any arrest or prosecution, or be proved against him in any criminal proceeding, except a prosecution for giving false evidence by such answer. This protection addresses concerns under Article 20(3) of the Constitution.[8]

Evidentiary Value and Corroboration of Approver's Testimony

While Section 133 of the Evidence Act declares an accomplice to be a competent witness, Section 114, Illustration (b) of the same Act provides a rule of caution: "The Court may presume that an accomplice is unworthy of credit, unless he is corroborated in material particulars." This has led to a well-established rule of practice, almost amounting to a rule of law, that courts generally seek corroboration of an approver's testimony in material particulars before basing a conviction upon it.[1][12] The corroboration must not only confirm that the crime was committed but also connect the accused with the crime.

If the pardon itself is found to be illegally granted, for instance, by a court lacking jurisdiction, the evidence of such an approver may be rendered inadmissible or significantly weakened.[6]

Challenges and Judicial Scrutiny

Locus Standi of Co-Accused to Challenge Pardon

The tender of pardon and its acceptance is primarily a matter between the court and the person to whom it is made. Generally, a co-accused has no locus standi to question the act of granting pardon by the court.[16][10] The co-accused's remedy lies in cross-examining the approver to demonstrate the falsity or unreliability of their statement.[16]

Constitutional Validity of Section 306 Cr.P.C.

Section 306 Cr.P.C. has faced challenges on grounds of violating fundamental rights, including Articles 14 (equality), 19 (freedoms), 20(3) (self-incrimination), and 21 (right to life and personal liberty) of the Constitution. However, courts have generally upheld its validity, viewing it as a necessary tool for effective law enforcement, provided its provisions are strictly adhered to.[11] The procedural safeguards and the conditional nature of the pardon are considered balancing factors.

Section 306 Cr.P.C. in Relation to Other Procedural Options

The Supreme Court in Girish Sharma & Ors. (S) v. The State Of Chhattisgarh & Ors. (S)[17] observed that Section 306 Cr.P.C. is not the only procedure available under the Cr.P.C. to make an accused a witness. The prosecution may, in its wisdom, choose not to array certain individuals as accused and instead cite them as witnesses, especially to secure conviction against those with more serious charges, without necessarily resorting to the formal pardon process under Section 306.

Implications of Pardon under Specialized Statutes

The grant of pardon under Section 306 Cr.P.C. in a scheduled offence may not automatically result in absolution from proceedings under specialized statutes like the Prevention of Money Laundering Act, 2002 (PMLA). The Delhi High Court in AMIT KATYAL v. DIRECTORATE OF ENFORCEMENT GOVERNMENT OF INDIA[18] observed that a pardon under Section 306 Cr.P.C. would not ipso facto lead to acquittal in a PMLA case unless the accused also seeks pardon in the PMLA case by making a full and true disclosure relevant to that offence.

Conclusion

Section 306 of the Code of Criminal Procedure, 1973, represents a delicate legislative balance between the societal interest in combating crime, especially organized and conspiratorial offences, and the principles of fair trial and justice. It provides a mechanism to break criminal networks by incentivizing an accomplice to reveal the truth. However, the inherent unreliability of accomplice testimony necessitates strict adherence to procedural safeguards, robust judicial oversight, and the cautious application of evidentiary rules regarding corroboration. The Indian judiciary, through numerous pronouncements, has meticulously interpreted its provisions, ensuring that the power to tender pardon is not misused and that the rights of both the approver and the co-accused are adequately protected. While challenges to its application and constitutionality persist, Section 306 Cr.P.C. remains an indispensable, albeit carefully wielded, instrument in the administration of criminal justice in India.

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