Tender of Pardon under the Code of Criminal Procedure

A Pardon is an act of mercy or forgiveness. Tender means “offer”. Tender of pardon thus means an offer of mercy or forgiveness given to a person who is accused of committing, attempting to commit, or being otherwise involved in the commission of a certain offence.

A pardon exempts the individual on whom it is bestowed, from the sanction the law inflicts for a crime he has committed. A pardon for guilt is illegal. If a pardon is fair, the law is bad. If the law and law enforcement are perfect, a pardon must break the law. However, human behaviour is imperfect, therefore, if it is determined that an error has occurred, it must somewhere give the power of pardon in order to avoid injustice.[1]

The Code of Criminal Procedure provides Sections 306 – 308 relating to Tender of Pardon to an Accomplice, who is also known as an Approver. An accomplice is a person who is in any way involved in the crime through unlawful or negligent, active or inactive participation in its execution and is also a person who commits a crime by actively participating in such execution.

The Approver shall be treated as a prosecution witness under Section 306. And he must disclose all the material information regarding the execution of the offence in his knowledge so as to assist the Prosecution in making a case against the Accused.

A Pardon can be whole or conditional. It is conditional if it depends on the Approver fulfilling certain conditions. The Approver must fully and truly disclose all their knowledge of the violation and provide information about the principal person in relation to the violator.

Section 306:

The purpose of this section is to pardon suspects who are willing to testify that some person has committed a crime so that those responsible can be punished using evidence obtained from the suspects.

Authorities competent to grant a Pardon: Chief Judicial Magistrate, Metropolitan Magistrate, and the Magistrate of first-class are competent to grant pardon as per Section 306. Section 307 grants power to the Court of Session to grant pardon at any stage after the committal of the case but before the judgment is passed. If in case, a Magistrate grants a pardon without having the authority to do so, it is only an irregularity that is curable under Section 460. 

In what cases can a pardon be granted: Pardon can only be granted in cases where the offence is triable by the court of session or by the court of a Special Magistrate and an offence punishable with imprisonment exceeding 7 years.

If the person who is pardoned is not released on bail before granting pardon, he will be detained until the trial. The provision to keep him in detention is mandatory and neither the magistrate nor the judge nor the High Court shall grant him bail.

If an approver accepts the offer of pardon, he must be examined as a witness before the Court of Magistrate taking cognizance of the offense, and he must be held under judicial custody until the end of the trial, unless already on bail.

Section 307 provides that the court to which the referral is made, may grant a pardon to any such person who is directly or indirectly involved in such offense at any time after the commitment of the case, but before judgment is passed, for the purpose of obtaining evidence of such a person at the trial.

Section 308 provides for trial of an Approver not complying with conditions of pardon. It provides that in case where the Approver fails to comply with the conditions of the pardon, the Public Prosecutor shall provide a certificate, which is the sole basis for prosecuting an Approver, indicating that the Approver has not met the conditions of pardon by deliberately concealing material facts or giving false testimony. At such a trial, the Approver may or may not plead guilty and by the effect of such pleading, the trial shall be held.

If it found out at a later stage that the conditions as imposed have been complied with by the Approver, he shall be acquitted accordingly.

Case Laws:

  • State of Maharashtra v. Abu Salem Abdul Kayyum Ansari and Ors.[2] : In this case, it was held by the Court, that the first-class magistrate under section 306, has the power to grant pardon to an accomplice, at any stage of an investigation or trial, but not at the stage of investigation provided that he makes full and fair disclosure of all circumstances, in his knowledge, of the crime. Article 307 vests in the Court to which the referral is made, with the power to tender a pardon to an accomplice. 
  • P.C. Mishra vs. State through Central Bureau of Investigation & Anr.[3]: In this case, the Court has stated that the power to grant pardon under Section 306 CrPC is a substantial power and thus, the reasons to tender a pardon should be noted. It is for the prosecution to ask for a particular accused to be granted a pardon if it thinks that it is necessary for the sake of a successful prosecution of other perpetrators or else conviction of that offender will not be easy. It was also stated that in cases, where the judge has exercised jurisdiction under Section 306 CrPC even after the appointment of a special judge under the Prevention of Corruption Act and has passed an order granting pardon, it shall be treated as only an irregularity that can be cured, and is not likely to affect the process, provided that the order should have been passed in good faith.[4]

[1] Bouvier’s Law Dictionary, Revised 6th Ed. (1850)

[2] (2010) 10 SCC 179

[3] Criminal Appeal No.1310 of 2010

[4] P.C.Mishra vs State(C.B.I) & Anr., IndianKanoon, available at: https://indiankanoon.org/doc/68677344/

Riya Sharma from Vivekananda Institute of Professional Studies

“A law student, eager to look for opportunities to learn and grow. I believe in taking life as it comes

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