Tender of Pardon to Accomplice (S. 306)

 Scope and Object

  • 306 deals with the subject of tender of pardon to an accomplice.
  • It is a helpful step when there is no clinching evidence against the accused and without tendering such pardon all the accused persons would walk scots free.
  • The power to grant pardon u/s. 306 is a substantive pardon and it rests on judicial discretion.
  • The Court has to proceed with great caution and on sufficient grounds recognizing the risk which the grant of pardon would result in, if the accomplice is let free.
  • The disclosure of the person seeking pardon must be complete.
  • The offer of pardon shall be made to the one who is the least guilty among all the other accused.
  • If the evidence is otherwise unobtainable, and only the accomplice can provide for such evidence against the other accused, on account of secrecy of crime a paucity of evidence, it would be justified to tender pardon to the one who is least guilty.
  • To prevent the actual offenders from punishment for lack of evidence in grave offences.
  • Pardon is granted to sought when somebody claims that he has committed mistake.
  • An accused once granted pardon, is no more an accused he assist the Court and the prosecution to secure c

 Conditions – Pre-requisite

  • The offence charged must be punishable with imprisonment of seven years and upwards; or
  • Triable exclusively by the Court of Sessions; or
  • Triable by a Special Judge.

Judicial Officer empowered to tender pardon

The following judicial officers are entitled to exercise the power of pardon to the accomplice:

  1. Chief Judicial Magistrate; or
  2. Metropolitan Magistrate; or
  3. Judicial Magistrate of First Class

The CJM and the Metropolitan Magistrate can tender pardon at any stage of investigation or inquiry or the trial.

However, the Judicial Magistrate of First Class can tender pardon at any stage of inquiry or trial but not at the stage of investigation.

Duty of Magistrate to record reasons

  • The Magistrate who tenders the pardons must record reasons before doing the same.
  • The procedure u/s. 306(3)(a) & (b) provides for two things, mentioned as follows:
  • The reasons for tendering the pardon; or
  • Whether or not the pardon was accepted by the accomplice.
  • If reasons are not recorded the orders of the Magistrate, will not be classified as speaking orders.
  • The whole order of the Magistrate can be quashed on the very ground that he has not recorded reasons for tendering pardon the accomplice.

Who may apply for PARDON

  • A person who is directly or indirectly concerned with the offence; or
  • A person who is privy to a certain type of offence.
  • It is not necessary that the person is a party to the offences.
  • The person applying for pardon may not be the actual culprit.
  • The provisions apply to persons summoned as accused and also to others who are not so summoned.

Examination of Accomplice as Witness – S.306(4)(a)

  • Every person who accepts a tender of pardon u/s. 306 the Court of the Magistrate taking Cognizance shall examine as a witness that person.
  • However, in case the offence is exclusively triable by the Court of Sessions, the Magistrate shall forward the person to the respective Court and shall not carry out examination of the person accepting tender of pardon.

Custody of the person accepting tender of pardonS.304(4)(b)

  • The Police shall detain such person in custody until the termination of trial.
  • The custody under the said section means judicial custody and not police custody.
  • The purpose of the same to ensure the protection of the approver from extraneous influence of the accused or any other person.
  • The aim of such custody is to protect the approver who assists the Court in punishing the accused.

Test to determine the Evidential Value

  • The evidence given by the approver has to satisfy dual tests.
  • One, he must show that he is a reliable witness.
  • Secondly, his evidence shall receive sufficient corroboration.
  • If the approver fails to prove that he is a reliable witness, then the question of corroboration of evidence does not arise at all.
  • In case both the above-mentioned contingencies are absent in the evidence of the accused, then his evidence cannot be relied upon.

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Written by: Arvind Yadav (Advocate)

                      Legal Associate

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