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 avoid the grant of pardon suo motu or at the request of the accused without the view of the prosecution. Judges ought to be aloof in these proceedings.
The decision of Supreme Court in the case of Iqbal Singh v. State (Delhi Administration) and Ors. , supports such conclusion, as aforesaid, to a great extent. In the said case under the Criminal Procedure Code, 1898 the question for consideration was that when pardon had been tendered to a person at the stage of investigation under Section 337(1) of the Code then a Special Judge who had the power to take cognizance of offence under Section 8(1) of the Criminal Law Amendment Act 1952 would have no jurisdiction to take cognizance and, therefore, charge sheet has to be filed before a Magistrate. This contention had been advanced because of Sub-section (2)(B) of Section 337 of the CrPC 1898. A contention has been advanced in the said case that if a Magistrate takes cognizance of the offence the approver will have to be examined as a witness twice, namely, once in the court of the Magistrate and again in the Court of Special Judge to whom the Magistrate sends the case for trial but on the other hand if charge sheet is filed in the court of Special Judge itself then the approver is examined only once and this is discriminatory. This Court repelled the said contention advanced on behalf of the accused and held:
It is clear from the scheme of Section 337 that what is required is that a person who accepts a tender of pardon must be examined as a witness at the different stages of the proceeding. Where, however, a Special Judge takes congnizance of the case, the occasion for examining the approver as a witness arises only once. It is true that in such a case there would be no previous evidence of the approver against which his evidence at the trial could be tested, which would have been available to the accused had the proceeding been initiated in the court of a Magistrate who under Sub-section (2B) of Section 337 of the Code is required to send the case for trial to the special Judge after examining the approver. But we do not find anything in Sub-section (2B) of Section 337 to suggest that it affects in any way the jurisdiction of the Special Judge to take congnizance of an offence without the accused being committed to him for trial. Sub-section (2B) was inserted in Section 337 in 1955 by Amendment Act 26 of 1955. If by enacting Sub-section (2B) in 1955 the legislature sought to curb the power given to the Special Judge by Section 8(1) of the Criminal Law Amendment Act, 1952, there is no reason why the legislature should not have expressed its intention clearly. Also, the fact that the approver's evidence cannot be tested against any previous statement does not seem to us to make any material difference to the detriment of the accused transgressing Article 14 of the Constitution. The special Judge in any case will have to apply the well established tests for the appreciation of the accomplice's evidence.
Can after committal of a case , Can CJM grant pardon when case has already been committed to sessions judge?
A. Deivendran vs State Of T.N. on 21 October, 1997 AIR 1998 SC 2821
arguments advanced by the learned Counsel appearing for the State, that the conviction and sentence against the appellants should not be interfered with in view of the provisions of Section 465 of the Code, inasmuch as there has been no failure of justice. Supreme Court rejected this contention. Section 465 of the Code is the residuary section intended to cure any error, omission or irregularity committed by a Court of competent jurisdiction in course of trial through accident or inadvertence, or even an illegality consisting in the infraction of any provisions of law. The sole object of the Section is to secure justice by preventing the invalidation of a trial already held, on the ground of technical breaches of any provisions in the Code causing no prejudice to the accused. But by no stretch of imagination the aforesaid provisions can be attracted to a situation where a Court having no jurisdiction under the Code does something or passes an order in contravention of the mandatory provisions of the Code. In view of our interpretation already made, that after a criminal proceeding is committed to a Court of Sessions it is only the Court of Sessions which has the jurisdiction to tender pardon to an accused and the Chief Judicial Magistrate does not possess any such jurisdiction, it would be impossible to hold that such tender of pardon by the Chief Judicial Magistrate can be accepted and the evidence of the approver thereafter can be considered by attracting the provisions of Section 465 of the Code. The aforesaid provision cannot be applied to a patent defect of jurisdiction. Then again it is not a case of reversing the sentence or order passed by a Court of competent jurisdiction but is a case where only a particular item of evidence has been taken out of consideration as that evidence of the so-called approver has been held by us to be not a legal evidence since pardon had been tendered by a Court of incompetent jurisdiction. In our opinion, to such a situation the provisions of Section 465 cannot be attracted at all. It is true, that procedures are intended to subserve the ends of justice and undue emphasis on mere technicalities which are not vital or important may frustrate the ends of justice. The Courts, therefore, are required to consider the gravity of irregularity and whether the same has caused a failure of justice. To tender pardon by a Chief Judicial Magistrate cannot be held to be a mere case of irregularity nor can it be said that there has been no failure of justice. It is a case of total lack of jurisdiction, and consequently the follow up action on account of such an order of a Magistrate without jurisdiction cannot be taken into consideration at all. In this view of the matter the contention of, learned Counsel appearing for the State in this regard has to be rejected.
Accused cannot demand to cross examine the approver at the stage of 306 (4) as he has no locus standi , neither can he demand that approver be examined in his presence. Ranadhir Basu vs State Of West Bengal on 7 February, 2000
It was contended by , learned Counsel appearing for the appellant, that Sudipa was not examined as a witness as contemplated by Section 306(4), Cr. P.C. He submitted that Sudipa was examined by the Magistrate in his chamber and not in the open Court and at that time the accused were not kept present. Her evidence was subjected to cross-examination. In support of his submission her relied upon the decision of this Court in Suresh Chandra Bahri v. State of Bihar . In that case this Court after pointing out the object and purpose of enacting Section 306(4), Cr. P.C. has held that since the provision has been made for the benefit of the accused it must be regarded as mandatory. It has observed therein that "the object, and purpose in enacting this mandatory provision is obviously intended to provide a safeguard to the accused inasmuch as the approver has to make a statement disclosing his evidence at the preliminary stage before the committal order is made and the accused not only becomes aware of the evidence against him but he is also afforded an opportunity to meet with, the evidence of an approver before the committing Court itself at the very threshold..." From this observation it does not follow that the person who is granted pardon must be examined in presence of the accused and that the accused has a right to appear and cross-examine him at that stage also. As pointed out by Supreme Court in that case the object is to provide an opportunity to the accused to show to the Court that the approver's evidence at the trial is untrustworthy in view of the contradictions or improvements made by him during his evidence at the trial. Considering the object and purpose of examining the person accepting tender of pardon as a witness is thus limited. The proceeding which takes place before the Magistrate at that stage is neither an inquiry nor a trial. Therefore, the submission of the learned Counsel that Sudipa should have been examined as witness in open Court and not in the chamber and that while she was examined the Magistrate should have kept the accused present and afforded to them an opportunity to cross examine Sudipa cannot be accepted. The phrase 'examination of a witness' does not necessarily mean examination and cross examination of that witness. What type of examination of a witness is contemplated would depend upon the object and purpose of that provision. Section 202, Cr. P.C. also contemplates examination of witness yet it has been held, considering the object and purpose of that provision, that the accused has no locus stand! at that stage. role of the Approver alone is not the paramount consideration for deciding as to whether pardon is to be granted or not:- in Suresh Chandra Bahri v. State of Bihar [1995 Supp (1) SCC 80 : 1995 SCC (Cri) 60] explained the object of Section 306 CrPC in the following words: (SCC p. 106, para 42) "42. ... 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." revocation of pardon :- pardoning an accomplice under Section 306 (1) CrPC, and his conversion into an approver, must mandatorily be followed by his examination as a witness under Section 306 (4) of CrPC. However, during the course of such statement, if the Public Prosecutor is able to discern that the approver is not abiding by the conditions, subject to which pardon was tendered to him, i.e. making a full and true disclosure of all facts within his knowledge; or the approver is concealing something essential; or is tendering false evidence, then the Public Prosecutor would so certify under Section 308 (1) of CrPC. From the perusal of Section 306 & 308 Cr.P.C and aforesaid judgment, it is clear that once the accused is granted pardon by the Court and is made approver, the status of the accused changes from accused to witness/approver. However, if the approver, fails to comply with the conditions of order granting him pardon, he makes him liable to be tried as accused subject to the conditions as laid down in Section 308 Cr.P.C. in the judgment "State vs. Jagjit Singh", it is observed that revocation of pardon can only be as per the procedure provided U/s 308 Cr.P.C which mandates that approver be examined in the Court before revoking the pardon. Thus, it is clear that breach of the conditions of the order granting pardon has to be looked into after the approver is examined by the Session Court/Trial Court and Ld. PP files Certificate that approver has committed breach of the conditions on basis of which he was granted pardon. Section 308 Cr.P.C also lays down that opportunity has to be granted to the accused to defend himself that he has complied with the conditions on which he was granted pardon. Therefore, until and unless the aforesaid procedure is followed the Court cannot revoke the pardon granted to the accused. In A.J. Peiris v. State of Madras - Judge Bench of Supreme Court stated that the moment a pardon is tendered to the accused he must be presumed to have been discharged, whereupon he ceases to be an accused and becomes a witness. In State v. Hiralal Girdharilal Kothari, with reference to Sections 337 and 339 of the Code of Criminal Procedure, 1898 (now Sections 306, 307 and 308 Cr.P.C of the new code.), Supreme Court stated that a pardon tendered under Section 337 is a protection from prosecution; failure to comply with the condition on which the pardon is tendered removes that protection. In State (Delhi Administration) v. Jagjit Singh AIR 1989 SC 598 , SupremeCourt held as under:-
"8. ......The power to grant pardon carries with it the right to impose a condition limiting the operation of such a pardon. Hence a pardoning power can attach any condition, precedent or subsequent so long as it is not illegal, immoral or impossible of performance. Section 306 clearly enjoins that the approver who was granted pardon had to comply with the condition of making a full and true disclosure of the whole of the circumstances within his knowledge relative to the offence and to every other concerned whether as principal or abettor, in the commission thereof. It is because of this mandate, the State cannot withdraw the pardon from the approver nor the approver can cast away the pardon granted to him till he is examined as a witness by the prosecution both in the Committing Court as well as in the trial court. The approver may have resiled from the statement made before the Magistrate in the Committing Court and may not have complied with the condition on which pardon was granted to him, still the prosecution has to examine him as a witness in the trial court. It is only when the Public Prosecutor certifies that the approver has not complied with the conditions on which the tender was made by wilfully concealing anything essential or by giving false evidence, he may be tried under Section 308 of the Code of Criminal Procedure not only for the offence in respect of which pardon was granted but also in respect of other offences........". (view reiterated in the case of State Of Maharashtra vs Abu Salem Abdul Kayyum Ansari & Ors on 5 October, 2010 of Supreme Court) Konajeti Rajababu vs State Of A.P 2002 (1) ALD Cri 367 (1) The power to grant pardon enjoined under Sections 306 and 307 of the Code is a substantive power and it rests on the judicial discretion of the Court, (2) The power of the Court is not circumscribed by any condition except the one, namely, that the action must be with a view to obtaining the evidence of any person who is supposed to have been directly or indirectly concerned in, or privy to, an offence.
(3) The Court has to proceed with great caution and on sufficient grounds recognising the risk which the grant of pardon involved of allowing an offender to escape just punishment at the expense of the other accused.
(4) The secrecy of the crime and paucity of evidence, solely for the apprehension of the other offenders, recovery of the incriminating objects and production of the evidence otherwise unobtainable might afford reasonable grounds for exercising the power.
(5) The disclosure of the person seeking pardon must be complete.
(6) While tendering pardon, the Court should make an offer to the one least guilty among the several accused.
(7) The reasons for tendering pardon must be recorded and also about the factum of accepting of pardon by the concerned. Whether court should revoke pardon granted to approver on the ground that he is not co-operating during investigation?
DIRECTORATE OF ENFORCEMENT Vs RAJIV SAXENA 2020 SCC OnLine Del 719
"non-co-operation, during investigation, is not one of the
circumstances contemplated, by Section 308 (1), as justifying issuance
of certificate by the Public Prosecutor. Quite obviously, this is because
the condition, whereunder pardon is granted to the accomplice, is
candour before the court, and not candour before the investigating
officer. Non-cooperation with the investigative process, therefore, is
irrelevant, insofar as Section 308 (1) is concerned. So long as the
approver does not conceal anything essential before the Court, and
does not give false evidence before the Court, no occasion, for
issuance of any certificate, by the Public Prosecutor, under Section
308 (1), can be said to arise." Limitation 467-473 :-
Nullum tempus occuririt regi - Lapse of time does not bar the right of crown.
Rakesh Kumar Jain vs State Through Cbi on 8 August, 2000
(a point also was held that appellate court itself can consider the matter of condonation of delay when the case is pending before itself as no useful purpose would be served by remanding the case back to magistrate for fresh consideration for condonation of delay.)
The mere fact that the complaint was filed 25 days after the expiry of the period of limitation, did not entitle the accused to seek his discharge under Section 245 Cr.P.C. because the complainant has, under law, a right to seek for extension of time under Section 473 Cr.P.C. The complainant could satisfy the Magistrate on the facts and circumstances of the case that the delay was explainable which was occasioned on account of their bonafide belief to obtain the sanction for the purpose of filing the complaint.
State Of Himachal Pradesh vs Tara Dutt And Anr on 19 November, 1999
Section 473 confers power on the Court taking cognizance after the expiry of the period of limitation, if it is satisfied on the facts and in the circumstances of the case that the delay has been properly explained and that it is necessary so to do in the interest of justice. Obviously, therefore in respect of the offences for which a period of limitation has been provided in Section 468, the power has been conferred on the Court taking cognizance to extend the said period of limitation where a proper and satisfactory explanation of the delay is available and where the Court taking cognizance finds that it would be in the interest of justice. This discretion conferred on the Court has to be exercised judicially and on well recognised principles. This being a discretion conferred on the Court taking cognizance, where-ever the Court exercises this discretion, the same must be by a speaking order, indicating the satisfaction of the Court that the delay was satisfactorily explained and condonation of the same was in the interest of justice. In the absence of a positive order to that effect it may not be permissible for a superior Court to come to the conclusion that the Court must be deemed to have taken cognizance by condoning the delay whenever the cognizance was barred and yet the Court took cognizance and proceeded with the trial of the offence.