Analysis of Section 338, Code of Criminal Procedure

An Analysis of Section 338 of the Code of Criminal Procedure: Power of Higher Courts to Tender Pardon

I. Introduction

The administration of criminal justice often grapples with the challenge of unearthing complex conspiracies and bringing all perpetrators to book, especially when direct evidence is scarce. In such scenarios, the testimony of an accomplice can be pivotal. The Code of Criminal Procedure has historically incorporated provisions for tendering pardon to an accomplice on the condition of them making a full and true disclosure of all circumstances within their knowledge relative to the offence and to every other person concerned. Section 338 of the Code of Criminal Procedure, 1898 (hereinafter referred to as "the 1898 Code"), specifically dealt with the power of the Court to which a commitment is made to tender a pardon. This article seeks to provide a comprehensive analysis of Section 338 of the 1898 Code, its scope, judicial interpretations, and its evolution into the corresponding provision, Section 307 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the 1973 Code").

II. Legislative Framework: Section 338 CrPC and its Context

A. Section 338 of the Code of Criminal Procedure, 1898

Section 338 of the 1898 Code provided a mechanism for tendering pardon at a stage subsequent to the proceedings before the Magistrate. It read as follows:

"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 such offence, tender, or order the Committing Magistrate or the District Magistrate to tender, a pardon on the same condition to such person."[1]

The key elements of this provision were:

  • Authority: The Court to which the commitment is made (typically the Court of Session or High Court).
  • Stage: At any time after commitment but before judgment is passed.
  • Objective: To obtain the evidence of an accomplice.
  • Condition: A full and true disclosure of the whole circumstances (same condition as under Section 337 of the 1898 Code).
  • Modality: The Court could tender the pardon itself or order the Committing Magistrate or the District Magistrate to tender it.

This section was complementary to Section 337 of the 1898 Code, which empowered certain Magistrates to tender pardon during the investigation, inquiry, or trial of specified offences.[2] The Supreme Court in State of U.P. v. Kailash Nath Agarwal[3] and A.J. Peiris v. State of Madras[4] extensively discussed the interplay and distinct operational spheres of Sections 337 and 338 of the 1898 Code.

B. Transition to Section 307 of the Code of Criminal Procedure, 1973

Section 307 of the 1973 Code is the corresponding provision to Section 338 of the 1898 Code. Section 307(1) of the 1973 Code states:

"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."

A significant change introduced by Section 307 of the 1973 Code is the omission of the power of the Court of Session (or High Court) to order the Committing Magistrate or the District Magistrate to tender the pardon. Under the 1973 Code, the Court to which the commitment is made must itself tender the pardon. This was noted by the Bombay High Court in The State of Maharashtra v. Yuvraj S/O Kashinath Sable, where it observed that "under section 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."[5] Section 306 of the 1973 Code corresponds to Section 337 of the 1898 Code, dealing with the tender of pardon by Magistrates.

III. Judicial Interpretation and Scope of Power under Section 338 CrPC (and its Successor)

A. Object and Purpose of Tender of Pardon

The primary objective of tendering pardon, whether under Section 337/306 or Section 338/307, is to obtain evidence in grave offences where it might otherwise be difficult to secure a conviction. The Supreme Court in State of Andhra Pradesh v. Cheemalapati Ganeswara Rao And Another, while discussing Section 337 of the 1898 Code, implicitly highlighted that the grant of pardon is aimed at uncovering the truth.[6] Similarly, in Lt. Commander Pascal Fernandes v. State Of Maharashtra & Others, the Supreme Court recognized that the tender of pardon is an enabling provision designed to facilitate justice, especially in complex cases involving multiple accused parties, by eliciting truthful and comprehensive information.[7]

B. Authority Empowered to Tender Pardon Post-Commitment

Under Section 338 of the 1898 Code, the power was vested in "the Court to which the commitment is made." This typically meant the Court of Session or the High Court. Special Judges appointed under specific statutes, such as the Criminal Law Amendment Act, 1952, were also held to possess this power. In Lt. Commander Pascal Fernandes, the Supreme Court affirmed that a Special Judge, under Section 8(2) of the Criminal Law Amendment Act, 1952, could tender a pardon, and such a tender was deemed by fiction to be one tendered under Section 338 of the 1898 Code for the purposes of Sections 339 and 339-A.[7] The Madras High Court in T.A. Fernandez, In Re, also observed that Section 8(2) of the 1952 Act placed a Special Judge on the same footing as a Sessions Judge with respect to tendering pardon under Section 338 of the 1898 Code.[8]

The Supreme Court in A.J. Peiris v. State of Madras clarified that the power of the Court of Session under Section 338 of the 1898 Code did not abrogate the power of the District Magistrate under the proviso to Section 337(1) of the 1898 Code to tender pardon even after commitment, if the case fell within the ambit of that proviso.[4] This principle of concurrent jurisdiction in certain scenarios was also reiterated in State of U.P. v. Kailash Nath Agarwal.[3]

C. Stage of Tendering Pardon

Section 338 of the 1898 Code, and its successor Section 307 of the 1973 Code, unequivocally state that the pardon can be tendered "at any time after commitment, but before judgment is passed." This delineates a specific window for the exercise of this power by the higher court.

D. Conditions for Tender of Pardon

The pardon tendered under Section 338 of the 1898 Code was "on the same condition" as that under Section 337, i.e., on the condition of the person 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. The exercise of this power involves judicial discretion. The Supreme Court in Lt. Commander Pascal Fernandes emphasized that the Special Judge’s discretion in granting pardons, aimed at securing truthful disclosures essential for the prosecution's case, was lawful.[7]

E. Scope of "Such Offence" - Historical Context

Section 338 of the 1898 Code used the term "any such offence," which linked it back to the offences enumerated or described in Section 337 of the 1898 Code. An early interpretation by the Madras High Court in N.A. Subrahmania Aiyar v. Queen Empress suggested that the words "such offence" in Section 338 restricted its scope to offences referred to in Section 337, namely, offences triable exclusively by the Court of Session or High Court, and certain other specified offences.[9] Section 337(1) of the 1898 Code itself listed the categories of offences for which pardon could be tendered, including those triable exclusively by the High Court or Court of Session, or any offence punishable with imprisonment up to seven years, or certain specified IPC sections.[2]

F. Tender of Pardon by Court of Session to Remedy Irregularities

The Court of Session, under Section 338 of the 1898 Code, could exercise its power to tender pardon independently. In Deputy Legal Remembrancer v. Banu Singh And Others, the Calcutta High Court considered a situation where the pardon tendered by the committing Magistrate was alleged to be irregular. The High Court indicated that the Sessions Judge had the power under Section 338 to tender pardon himself, thereby potentially remedying earlier defects, although in that specific case, the Sessions Judge had declined to do so based on his assessment of the circumstances.[10]

G. Application to Trials before Tribunals

The question of applicability of Section 338 of the 1898 Code to trials before special tribunals where no formal "commitment" process existed was considered in Anwarali Sarkar And Others v. The State. The Calcutta High Court deliberated whether a Tribunal, empowered to take cognizance of scheduled offences without the accused being committed to it for trial but deemed a Court of Session for procedural purposes, could invoke Section 338. The argument revolved around whether the deeming provision was sufficient to equate the situation to one "after commitment."[11]

IV. Consequences of Tender and Acceptance of Pardon

A. Status of the Pardoned Person

Upon the tender and acceptance of a pardon, the legal status of the person changes significantly. As observed by the Supreme Court in A.J. Peiris v. State of Madras, the moment the pardon was tendered to the accused, he was presumed to have been discharged, whereupon he ceased to be an accused and became a witness.[4]

B. Implications of Non-Compliance with Conditions (Sections 339/308 CrPC)

The tender of pardon is conditional. If the person who accepted the pardon fails to comply with the conditions (i.e., does not make a full and true disclosure), they forfeit the pardon. Sections 339 and 339-A of the 1898 Code (corresponding to Section 308 of the 1973 Code) laid down the procedure for such eventualities. The pardoned person could then be tried for the offence in respect of which the pardon was tendered, and also for the offence of giving false evidence. The Supreme Court in Lt. Commander Pascal Fernandes noted that upon tender of pardon by the Special Judge (deemed under Section 338), the provisions of Sections 339 and 339-A of the 1898 Code would apply.[7]

V. Conclusion

Section 338 of the Code of Criminal Procedure, 1898, and its successor, Section 307 of the Code of Criminal Procedure, 1973, represent crucial legislative tools in the pursuit of criminal justice. They empower higher courts, post-commitment, to enlist the testimony of an accomplice, thereby aiding in the unraveling of complex criminal acts and conspiracies. Judicial pronouncements over the decades have clarified the scope, procedural nuances, and underlying objectives of this power. While the primary aim is to secure evidence against other offenders, the exercise of this power is circumscribed by conditions designed to ensure truthfulness and is subject to judicial discretion. The evolution from Section 338 of the 1898 Code to Section 307 of the 1973 Code reflects minor procedural refinements, but the fundamental principle of enabling the court to obtain crucial evidence from an accomplice in the interest of justice remains steadfast.

VI. References

  1. Section 338, Code of Criminal Procedure, 1898. As quoted in State Of U.P v. Kailash Nath Agarwal And Others (1973 SCC 1 751, Supreme Court Of India, 1973) and other reference materials.
  2. Section 337, Code of Criminal Procedure, 1898. As quoted in State Of U.P v. Kailash Nath Agarwal And Others (1973 SCC 1 751, Supreme Court Of India, 1973).
  3. State Of U.P v. Kailash Nath Agarwal And Others (1973 SCC 1 751, Supreme Court Of India, 1973).
  4. A.J Peiris v. State Of Madras . (1954 AIR SC 616, Supreme Court Of India, 1954).
  5. The State Of Maharashtra v. Yuvraj S/O Kashinath Sable, Age 30 Years, Occu. At Present Nil, R/O Prajapat Nagar, Jalgaon, Taluka & District Jalgaon (Bombay High Court, 2014).
  6. State Of Andhra Pradesh v. Cheemalapati Ganeswara Rao And Another (1963 AIR SC 0 1850, Supreme Court Of India, 1963).
  7. Lt. Commander Pascal Fernandes v. State Of Maharashtra & Others (1968 AIR SC 594, Supreme Court Of India, 1967).
  8. T.A. Fernandez, In Re (Madras High Court, 1958).
  9. N.A. Subrahmania Aiyar v. Queen Empress (Madras High Court, 1900).
  10. Deputy Legal Remembrancer v. Banu Singh And Others (1906 SCC ONLINE CAL 229, Calcutta High Court, 1906).
  11. Anwarali Sarkar And Others v. The State . (Calcutta High Court, 1955).