Tender of Pardon to an Accomplice Sections 343 to 345

⚠ Three features of the section worth noticing

The disclosure must cover every other person concerned. It is not enough that the approver confesses his own part. The object of the tender is to reach the others, and a disclosure that shields a confederate is not a full and true disclosure.

He is examined twice. Section 343(4)(a) requires him to be examined before the Magistrate taking cognizance and again in the subsequent trial. The first examination fixes his account before the trial begins, so that any later departure from it is visible.

And he is detained. Unless already on bail he is kept in custody until the termination of the trial. The provision is protective as much as coercive: an approver who has named his confederates is in obvious danger, and he is also removed from any opportunity to be reached by them.

📖 Suresh Chandra Bahri v. State of Bihar, 1995 Supp (1) SCC 80

Facts: A conviction rested substantially on the evidence of an approver to whom a pardon had been tendered, and the question was the approach a court must take to such evidence and the extent of corroboration required before acting on it.

Held: The Supreme Court restated the settled approach, which proceeds in two stages. The court must first satisfy itself that the approver is a reliable witness — that his evidence, taken by itself, is truthful and that he has made a full and true disclosure; an approver who has held back, or who has shifted his account, fails at this stage and his evidence is not acted upon at all. Secondly, even where he is found reliable, his evidence requires corroboration in material particulars, both as to the commission of the offence and, importantly, as to the identity of each accused whom he implicates. The Court held that corroboration in general terms is not enough: the rule of prudence requires material connecting each individual accused with the crime, since the danger of an approver implicating the innocent along with the guilty is precisely what the requirement exists to meet. It emphasised that the requirement is a rule of prudence so firmly established as to have the force of a rule of law.

Ratio: The evidence of an approver is assessed in two stages: whether he is a reliable witness who has made a full disclosure, and whether his evidence is corroborated in material particulars, including as to the identity of each accused implicated.

📖 Bangaru Laxman v. State (Through CBI), (2012) 1 SCC 500

Facts: Questions arose as to the procedure to be followed on a tender of pardon, the status of a person who has accepted one, and the use that may be made of his evidence at the trial of those he implicates.

Held: The Court held that the tender of pardon is a judicial act and not an administrative one: the Magistrate must apply his mind to whether a tender is warranted, must record his reasons, and must record whether the tender was accepted. A person who accepts a tender ceases to be an accused in respect of the offence pardoned and becomes a witness, but the circumstances in which he came to give evidence remain relevant to its weight. The Court held that the requirement that he be examined both before the Magistrate taking cognizance and at the trial is mandatory, and that the record of the earlier examination is available for the purpose of testing what he says at the trial. It reiterated that the approver’s evidence must satisfy the double test of reliability and corroboration before a conviction can rest upon it.

Ratio: A tender of pardon is a judicial act requiring the Magistrate to apply his mind and record reasons. The approver becomes a witness, must be examined both before the Magistrate and at the trial, and his evidence must satisfy the double test.

Section 345, BNSS 2023 — the scheme

(1) Where, in regard to a person who has accepted a tender of pardon, the Public Prosecutor certifies that in his opinion such person has, either by wilfully concealing anything essential or by giving false evidence, not complied with the condition on which the tender was made, such person may be tried for the offence in respect of which the pardon was so tendered, or for any other offence of which he appears to have been guilty in connection with the same matter, and also for the offence of giving false evidence.

Provided that such person shall not be tried jointly with any of the other accused.

Provided further that he shall not be tried for the offence of giving false evidence except with the sanction of the High Court, and nothing contained in section 215 shall apply to that offence.

(2) Any statement made by him and recorded by a Magistrate under section 183, or by a Court under sub-section (4) of section 343, may be given in evidence against him at such trial.

(3) At such trial, the accused shall be entitled to plead that he has complied with the condition upon which the tender was made; in which case it shall be for the prosecution to prove that the condition has not been complied with.

(4) and (5) The Court shall, before the charge in a Sessions trial and before the prosecution evidence before a Magistrate, ask the accused whether he pleads that he has complied; and where he so pleads, shall record the plea, proceed with the trial, and find, before passing judgment, whether or not he has complied.

⚠ The safeguards in section 345

The Public Prosecutor’s certificate is the gateway. Without it, the approver cannot be put on trial for the pardoned offence. It is not open to the court, or to a co-accused, to set the section in motion.

He is not tried jointly with the others. The first proviso forbids it. A man who has given evidence against his confederates cannot fairly be placed in the dock beside them.

Prosecution for giving false evidence needs the High Court’s sanction, and the ordinary bar in section 215 requiring a complaint by the Court does not apply.

And the burden is on the prosecution. Under sub-section (3), once the approver pleads that he has complied, it is for the prosecution to prove that he has not. That is the most important protection in the section: the man who has performed his side of the bargain is not required to prove that he did.

The position stated shortly

1. Section 343: a Chief Judicial Magistrate or a Magistrate of the first class may, at any stage of the investigation, inquiry or trial, tender a pardon to a person supposed to have been concerned in or privy to an offence.

2. The condition is a full and true disclosure of the whole of the circumstances within his knowledge relative to the offence and to every other person concerned.

3. The section applies to offences triable exclusively by a Court of Session or a Special Judge, and offences punishable with imprisonment which may extend to seven years or more.

4. The Magistrate must record his reasons and whether the tender was accepted, and furnish a copy free of cost on the accused’s application. The tender is a judicial act: Bangaru Laxman.

5. An approver shall be examined as a witness both before the Magistrate taking cognizance and at the subsequent trial, and, unless on bail, detained in custody until the termination of the trial.

6. Section 344: after commitment and before judgment, the Court to which the case was committed may itself tender a pardon on the same condition.

7. An approver’s evidence is tested in two stages: whether he is a reliable witness who made a full disclosure; and whether his evidence is corroborated in material particulars, including as to the identity of each accused implicated: Suresh Chandra Bahri.

8. Section 345: where the Public Prosecutor certifies that the approver has wilfully concealed anything essential or given false evidence, he may be tried for the pardoned offence and for giving false evidence.

9. He shall not be tried jointly with the other accused; prosecution for giving false evidence requires the sanction of the High Court; and his earlier statements may be used against him.

10. He may plead that he has complied, and where he does, the burden is on the prosecution to prove that he has not. The Court must ask him, record the plea, and find on it before passing judgment.