Tendor of Pardon To Accomplice
Tendor of Pardon To Accomplice
Tendor of Pardon To Accomplice
TOPIC:-
TENDER OF PARDON
(SECTIONS 306, 307, 308)
INDEX
S. NO. CONTENTS P. NO.
1. Introduction 3
2. Meaning of Pardon 4
3. Power of Court to grant
pardon 5
4. Pardon to accomplice
• Object 5
• Pardon befor committal
proceedings. 7
• Pardon after committal
proceedings 8
• Conditions for exercise of
power. 9
• Effects of pardon 13
• Consequences of breach of
condition of pardon. 14
• Constitutional validity
regarding exercise of power 15
PAGE 3
INTRODUCTION
Pardon, one of the biggest powers In the hands of the executives which
is 'part of Constitutional Scheme in almost all modern civilized
societies' is generally contained in the Constitution of a Country.^ In
India also the power to grant pardon is enshrined in the Constitution
itself. The main reason for incorporating this power in the Constitution
itself may be because of its importance as it saves a person from the
penalty or punishment inflicted upon him by the judiciary for breaking
the laws of the land. Moreover it may completely absolve such a person
from all disqualification attached to him for the commission of
criminal offence." This is an extraordinary power given to the
executive.
The Constitution of India confers this power on the President^ and
the Governor of each state. In India it is not only the Constitution that
contains the power to grant pardon, remission, commutation etc. and it
is not only the President or the Governor of the concerned State who
can enjoy this power to grant pardon, remission, commutation etc. but
there are a few more other statutes or legislations which contain the
provisions dealing with similar pardoning power and these powers to
grant such pardons have been conferred on certain other authorities.
These similar powers of pardon are also called as pardoning powers^
despite the fact that they are being exercised by some other authority.
It is not only the executives who enjoy this power to grant pardon but
the judiciary has also been empowered to exercise this power, although
the objective of the same is different. But all of these authorities
including judiciary are exercising these powers on behalf of the
sovereign.
The established principle of Criminal Jurisprudence is that the
responsibility or exemption from criminal liability to a person should
always be made in accordance with the procedure established in
criminal law for the time being in force. The provisions with regard to
tender of pardon is provided under Indian Constitution Article 72 and
Article 161 and Section 306, 307 and 308 of Code of Criminal
Procedure 1973,
PAGE 4
MEANING OF PARDON
In la w, a pardon is the release from guilt or remission of punishmen t.
A pardon may be full or conditiona l. It is conditional when its
effectiveness depends on fulfillment of a condition by the offende r,
usually a lesser punishmen t, as in the commutation of the death
sentenc e .The effect of a full pardon is unclear in some jurisdiction s.
According to the Bouviers Law Dictionary 'Pardo n' mean s-
A pardon is an act of grac e, proceeding from the power entrusted
with the execution of the law s, which exempts the individual on
whom it is bestowe d, from the punishment the law inflicts for a
crime he has committe d. Every pardon granted to the guilty is in
derogation of the la w; if the pardon be equitabl e, the law i s, ba d; for
where legislation and the administration of the law are perfec t,
pardons must be a violation of the la w. But as human actions are
necessarily imperfec t, the pardoning power must be vested
somewhere in order to prevent injustic e, when it is ascertained that
an error has been committe d.
A pardon is said by Lord Coke to be a work of mercy where by
the king "either before attainde r, or conviction or after forgiveth any
crim e ,offenc e, punishment "and the kin g 's Coronation oath is " that
he will causejustice to be executed mercy "5 A pardon is as an act
ofgrac e, which exempts the individual on whom it is bestowedfrom
the punishment the law inflictsfor a crime he has committe d.
As has been observed by the Supreme Court in K . M. Nanavati v
State ofBombay [AIR 1961 SC 11 2] , "Pardon is one of many
prerogatives which have beenr ecognized since time immemorial as
being vested in the sovereig n, wherever the sovereignty might b e.
The sovereign power to grant a pardon has been recognized in the
Constitution ofIndia in Arts 72 and 161 and also in Sec s .432 and 43 3,
Criminal Procedure Cod e, 197 3. These provisions relate to the grant
ofpardon after sentence has been removed and the tender of pardon
to an accomplice under certain conditions as contemplated by Sec s.
306 and 30 7, Criminal Procedure Cod e. There is no doubt that
the ;grant ofpardo n, whether it is under Ar t, 16 1or Ar t. 72 of the
constitution or under Sec s. 33 7, 33 8, 401 and 402 of old Criminal
Procedure Cod e, is the exercise ofthe sovereign powe r.
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PARDON TO AN ACCOMPLICE
The power to grant pardon to an accomplice can be exercised by a
Magistrate under the Code of Criminal Procedure. This discretionary
power conferred by the code on the Magistrate is basically a judicial
function. This power of Magistrate is contained in Chapter-XXIV,
Sections 306 to 308 of the Code. The very first section i.e. Section 306
deals with the power to grant pardon and the second section i.e.
Section 307 deals with the 'power to direct tender of pardon' to be
exercised by the court to which the case has been committed. Whereas
the last Section 308 provides for the trial of person pardoned for not
complying with the conditions of pardon.
• Object
It is the duty of the State to protect the individuals from external as
well as the internal disturbance. So far as the internal disturbance is
concerned it is the duty of the state to maintain the law and order. If
PAGE 6
any person breaks the law and violates the rights of other individuals, the
State is bound to punish the offender. But this is quite possible that due
to lack of evidence the State may not be in a position to punish the
offenders. In such type of a situation the State enters into a contract
resulting in pardon to one of the accomplices.
The word contract is appropriate because granting of pardon in
substance and in fact is a contract between the State on the one hand and
a person whom it is granted on the other. The reason for calling it to be a
contract is obvious that it is simply an agreement between the two parties
wherein one party i.e. approver, is willing to confess the commission of
crime and for doing so this party is receiving in consideration of
confession, a pardon from the other party.
To make it a complete contract there shall be an offer and its
acceptance and there shall always be the consideration. Even the
Supreme Court accepted this averment and held that "the power of
tendering pardon is restricted to one consideration alone, namely the
obtaining of the evidence from the person to whom pardon is granted
relating to offences being tried. But this power of pardon can never be
exercised in each and every case. This power shall be used only in those
cases where it is not possible to punish the offenders by other means
because of lack of evidence.
In Suresh Chandra Bahri v. State of Bihar [AIR 1994 SC 2420], the
Supreme Court while dealing with the same question of the object of the
provision relied upon the judgment of the Court itself in Ganeshwara
Rao's case and held that "the main object of this section is to obtain the
true evidence of offence by the grant of pardon to accomplices so as to
prevent the escape of the offenders from punishment for lack of evidence
in grave offences.
In Jasbir Singh v. Vipin Kumar Jaggi,[AIR 2001 SC 2734 at 27], the
Supreme Court while dealing with the same question observed that:
The grant of pardon by the Court is rooted in the premise that most
criminals try to avoid detention. Crimes lil<e smuggling, by definition
are carried on secretively. The persons involved in such criminal activity
would obviously try to conceal and hide any evidence of their activity in
as many ways as human ingenuity can devise. That is why the prosecution
is often compelled to rely on the evidence of an accomplice to bring the
most serious offenders to book.
But it shall be pertinent to mention here that pardon shall never be
tendered in those cases where there are enough evidences available to
PAGE 7
punish the offenders for the commission of the crime without the
evidence of the approver. The reason behind that is quite obvious that if
such type of practice is permitted then every criminal will try to escape
from punishment with the help of section 306. This type of misuse of
power can never be permitted.
Thus it can be concluded that in order to do justice with the
aggrieved persons and to bring the accused to justice for the offence
committed by him it is necessary to confer certain powers upon the
Magistrate to tender pardon to an accomplice if the Magistrate is not in
a position to punish the offenders due to lack of evidence. It spreads a
massage to the criminals that it is not easy for them to escape from
punishment even if they committed the offence very carefully and
leaving no evidence behind.
306 to tender pardon when the offence is under inquiry or trial. The
court to which commitment is made can itself exercise this power under
section 307 at any time after the commitment of the case but it should
be done before the pronouncement of the judgment. It has also been
made clear that the power to grant pardon under both of these sections
is not circumscribed by any condition except, that action must be taken
with a view to obtain evidence of any person who is supposed to have
been directly or indirectly concerned in, or privy to, an offence. The
main intent and purpose of tendering pardon to accused as envisaged in
Section 306 and Section 307 of the Code, is to bring to light the missing
and hidden circumstances which though very much relevant are not
coming forth from others.
Thus it can be concluded that the power under sections 306 and 307
are same or identical. The only difference is that the power is to be
exercised by different authorities under different sections and at
different time and this power contained in two different provision do
not go against each other.
In Jasbir Singh v. Vipin Kumar Jaggi,[AIR 2001 SC 2734 at 27], the court
ruled that "although the power to actually grant the pardon is vested in
the court, obviously the court can have no interest whatsoever in the
outcome nor can it decide for the prosecution whether particular
evidence is required or not to ensure the conviction of the accused. This
is the prosecution's job."
Similarly the position of the police is not different rather it is worst.
In a landmark judgment delivered the Supreme Court by P. Sirajuddin v.
State of Madras[AIR 1971 SC 520] it was held that the granting of pardon
is not the discretion of police at all.
The decision of the Court seem to be perfect as there are provisions in
Section 306 and 307 relating to pardon to an accomplice. An
investigating officer cannot himself grant pardon bypassing the
aforesaid provisions of the code.
Pardon may be tendered under sub. Section (2) of section 306 Cr.P.C.
with respect of three classes of offences:-
(a) Offences triable exclusive by a Court of Session.
(b) Any offence punishable with imprisonment which may extend to 7
years or with a more severe sentence.
(c) Any offence triable under the Criminal Law Amendment Act, 1952.
The provision of Sec. 306 Criminal Procedure Code makes it clear that a
pardon may be tendered at any stage of an investigation or trial or
injury38 even though the principal offender is absconding or after
framing a charge.
Chief Judicial or Metropolitan Magistrate specified in sub-sec. (1) are
competent to tender at any stage of-
(i) the investigation.
(ii) any inquiry prior to the trial;
(iii) during the trial itself. This means that the power under s. 306(1) can
be exercised at any time after a case is received for trial and before its
conclusion.
A Magistrate of the First Class has no power to tender pardon during
investigation. He would be competent only during the inquiry or trial he
is himself holding.
Therefore, it can be concluded that the power to tender pardon to an
accomplice under Section 306 and 307 can be exercised at any fime
before the passing of the judgment. The pardon may be tendered even if
the previous request of the accused for pardon has been turned down.
v) Obligations on Accomplice
Since the tender of pardon to an accomplice is basically a part of contract
between the approver and the state hence if the pardon is tendered to an
accomplice he is also bound to perform his part of the contract. Such
type of a contract is entered only with one goal that is the punishment of
the accused persons involved in a criminal act.
In order to achieve such a goal the very basic requirement or
condition is that the approver shall accept the pardon. Once the
approver accepts the pardon then it is the turn of such approver to make
full and true disclosure of facts of the case. It has been held that the
approver must make such a disclosure before the committing Magistrate
and before the Sessions Court. He cannot withdraw it after making it
once.The tender of pardon to an approver has to precede and not to
follow on the making of full and true disclosure. There is no obligation
on the Magistrate to record the statement of the person before he is
tendered a pardon. The sole consideration in this regard is that he
should make a full and free disclosure of all facts within his knowledge
with regard to the offence. A witness making a self incriminatory
statement in the evidence voluntarily is not covered by Section 306 or
PAGE 13
• Effects of Pardon:
The effects of pardon granted under Section 306 or 307 of the code are
as under:
1. The grant of pardon carries with it the imputation of guilt and the
acceptance thereof a confession of it. It completely exempts the
individual from the punishment which the law inflicts for a crime he
has committed. It is in substance and effect a contract between State and
the person to whom it is granted. But an accomplice selected for award of
pardon cannot be said to have obtained complete exoneration from guilt
till he complies with the terms of his undertaking
2. Where a pardon is tendered and is accepted under Section 306, the
accused person ceases to be an accused and becomes a witness thereafter.
The person to whom pardon has been tendered cannot be re-arrested for
the same offence or any other offence connected with that offence.
Where prosecution has been instituted ignoring the legal bar created by
the existence of an operative pardon, it would be an abuse of the process
of the court to continue such prosecution and the High Court can quash
the proceedings in exercise of the powers under Section 482 of the Code.
3. The withdrawal of prosecution against the individual is not necessary
in cases where a pardon is tendered and accepted. But the prosecution
may be stayed till the trial of the case in which pardon is granted is over.
4. If the order of the Magistrate granting pardon also includes offences
not falling within Section 306 of the code, the person to whom the
pardon is granted cannot be treated as an approver and examined as such
in a trial which is concerned only with respect to an offence not falling
within this section. In other words if an order granting pardon also relates
to sections not falling under section 306 the accused can never be treated
as an approver.
5. The Supreme Court has held that the pardon extends to all connected
offences. But a pardon will not operate as a bar to trial for a distinct and
entirely different offence.
PAGE 14
(ii) Section 306 Cr. P.C. and Art. 20 (3) of the Indian
Constitution:-
Article 20 (3) of the Constitution protects a person who is accused of an
offence that he shall not be compelled to be a witness against himself.
But as a co-accused accepts a pardon of his free will on condition of a
true disclosure in his own interest, and is not "compelled" to give self
incriminating evidence, the law in ss 306 and 308 Cr. P. Code is not
affected. He is a person who voluntarily answers questions from the
witness-box waives the privilege, because he is then not a witness against
himself but against others. The evidence of an accomplice cannot,
therefore, be ruled out because he could have been tried jointly with the
accused but was not and was instead to give evidence in the case.178 Art.
20(3) of the Constitution gives no right to the approver to refuse to
answer incriminating question because-
The moment he is granted pardon, he ceases to be an accused and
becomes a witness, and as a witness he is fully protected from
prosecution or conviction for incriminating statements made by him as
approver, by virtue of s. 132 of the Evidence act.
As on account of, Art. 20 (3) of the Constitution, no person accused
of an offence can be compelled to be a witness against himself. So the
compelled statement even of an approver cannot be used as evidence
against him in his subsequent trail.
The approver is bound, by the terms of the pardon under s. 306 (1) to
answer any question even if the answer to such question is likely to
criminate him directly or indirectly, His protection lies under the
proviso to s. 132 of the Evidence Act, viz that the answer given by him
cannot be proved against him except in a prosecution for giving false
evidence by such answer.