pardon by magistrates and judges and limitations under crpc
What is difference between approver and accomplice?
The difference between approver and accomplice is that approver is always an accomplice where as an accomplice is not necessarily an approver as an accomplice or co-accused becomes an approver after he has been tendered a pardon or granted concession on the condition that he will reveal the truth and will not hide anything in relation to offence or offences which he and other accused are alleged to have committed. PARDON UNDER CRPC by judges and magistrates :-
The dominant object being that the offenders of the heinous and grave offences do not go unpunished, the Legislature in its wisdom considered it necessary to introduce Section 306 and confine its operation to cases mentioned in it. The object of Section 306 therefore is to allow pardon in cases where heinous offence is alleged to have been committed by several persons so that with the aid of the evidence of the person granted pardon the offence may be brought home to the rest. The basis of the tender of pardon is not the extent of the culpability of the person to whom pardon is granted, but the principle is to prevent the escape of the offenders from punishment in heinous offences for lack of evidence. There can therefore be no objection against tender of pardon to an accomplice simply because in his confession, he does not implicate himself to the same extent as the other accused because all that Section 306 requires is that pardon may be tendered to any person believed to be involved directly or indirectly in or privy to an offence.
Can court can grant pardon to accused on his request? Such a grant is not illegal but it may be improper. The problem is not with the jurisdiction and power of the judge to act in this manner but the propriety of it.
Criminal Appeal No. 148 of 1967
Pascal Fernandes Vs. The State of Maharashtra and Ors. 1.It follows that the powers of the Special Judge are not circumscribed by any condition except one. namely, that the action must be with a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in, or privy to an offence. The pardon so tendered is also on condition of his making a full and true disclosure of the whole circumstances within his knowledge relating to the offence and to every other person concerned, whether as principal or abettor. The disclosure must be complete as to himself and as to any other person concerned as principal or abettor. There is no provision for recording a preliminary statement of the person.
2.There can be no doubt that the section is enabling and its terms are wide enough to enable the Special Judge to tender a. pardon to any person who is supposed to have been directly or indirectly concerned in, or privy to an offence. This must necessarily include a person arraigned before him. But it may be possible to tender pardon to a person not so arraigned. The power so conferred can also be exercised at any time after the case is received for trial and before its conclusion. There is nothing in the language of the section to show that the Special Judge must be moved by the prosecution. He may consider an offer by an accused as in this case. The action, therefore, was not outside the jurisdiction of the Special Judge in this case.
3.Before the Special Judge acts to tender pardon, he must, of course, know the nature of the evidence the person seeking conditional pardon is likely to give, the nature of his complicity and the degree of his culpability in relation to the offence and in relation to the co-accused.
It is the duty of magistrates to be very cautious as to whom they admit to give evidence as approvers, and they should carefully inquire to what extent the approver is mixed up with the transaction, and if he be an accomplice, into the extent of his guilt......".
4.The English law and practice is (a) to omit the proposed approver from the indictment, or (b) to take his plea of guilty on arraignment, or (c) to offer no evidence and permit his acquittal, or (d) to enter a nolle prosequi(a formal notice of abandonment by a plaintiff or prosecutor of all or part of a suit)
5.In our criminal jurisdiction there is a tender of a pardon on condition of full disclosure. Without recourse to it an accused person cannot be examined as a witness in the same case against another accused. To determine whether the accused's testimony as an approver is likely to advance the interest of justice, the Special Judge must have material before him to show what the nature of that testimony will be. Ordinarily it is for the prosecution to ask that a particular accused, out of several may be tendered pardon. But even where the accused directly applies to the Special Judge, he must first refer the request to the prosecuting agency. It is not for the Special Judge to enter the ring as a veritable director of prosecution.
6.The power which the Special Judge exercises is not on his own behalf but on behalf of the prosecuting agency and must, therefore, be exercised only when the prosecution joins tendered pardon because it does not need approver's testimony. It may also not like the tender of pardon to the crime or the worst offender. The proper course for the Special Judge is to ask for a statement from the prosecution on the request of the prisoner. If the prosecution thinks that the tender of pardon will be in the interests of a successful prosecution of the other offenders whose conviction is not easy without the approver's testimony, it will indubitably agree to the tendering of pardon.
Propriety of the order of the special judge to grant pardon suo motu :
The Special Judge (or the Magistrate) must not take on himself the task of determining the propriety of tendering pardon without having the view and support of the public prosecutors. Judges and magistrate ought to generally