Sunday, March 25, 2012

The Concept of Approver&Grant of pardon to an accomplice

The Concept of Approver&Grant of pardon to an accomplice:


We often hear in media in high profile cases or scams ,one of the accused has agreed to be approver,but fundamental principles involved in the concept must be understood thoroughly by all lawyers/layman by  studying the relevant provisions in Criminal Procedure and Evidence act along with relevant case laws.


The conviction based on approver's evidence is legal valid &sustainable in India

Fundamental principles -Approver &Grant of Pardon : 

  • There must be trial


  • Guilty of accused is not proved


  • Accused/accomplice agree to be approver ,there must be agreement to be approver for the grant of pardon provided he testifies in court about the crime. 


  • The approver becomes witness,the moment pardon tendered by court ,he is discharged from the case[ A.J. Peiris v. State of Madras (AIR 1954 SC 616)


  • If accused violate terms,there will be no question of pardon.[State v. Hiralal Girdharilal Kothari (AIR 1960 SC 360)]


  • The power to grant pardon carries with it the right to impose a condition limiting the operation of such a pardon[State (Delhi Administration) v. Jagjit Singh (1989 Supp (2) SCC 770)]


  • The grant of pardon to approver is based on principles of public policy and public interest -Karuppa Servai v.Kundaru AIR 1952 Mad 833: (1953 Crl.L.J. 45)


  • Right to detain -In Mukesh Ramchandra Reddy, 1958 Cri.L.J.  343, the A. P High Court interpreted the word "shall" in the said provisions"as primarily obligatory and casting a duty on the Court to detain an accused to whom pardon has been tendered."


  • Approver shall not be released until the decision of the case- A. L. Mehra v. State AIR 1958 Punj 72: (1958 Cri.LJ 413)


  • Approver can be released on bail,if approver’s evidence was recorded-Santosh  Kumar Satishbhushan Bariyar v. State of Maharashtra, (2009) SCC 498.

The Definition of Accomplice under Evidence Act 1872 


According to Section 113  accomplice is a guilty associate or partner in crime who has connection or relationship with criminal act that he or she be implicated along with the principal offenders or offender.
  • He can be called abettor 
  • Person assisted offender in concealing the crime 
  • An approver in crime 
  • One who has received the stolen property  or contraband material.
  • Even women in Adultery cases can be called accomplice ,but can not be prosecuted by existing provisions of law,Justice Malimath committee recommended the punishment for women in Adultery cases.
Types of Accomplice :

  • Accomplice before fact-Guilty even before committing crime ,an approver is accomplice before fact
  • Accomplice after fact-is no way connected with alleged crime or offence,but he has received stolen property or an receiver.

Evidential Value of Accomplice under Indian Evidence Act 1872:

  • As per section 133 of accomplice shall be competent witness against accused ,conviction not bad in law. 


  • There is contradictory provision exists in Indian Evidence in section  114 which says" accomplice evidence unworthy  unless corroborated by material particulars."
The conviction based on accomplice  evidence sustains under Indian law.It is settled law that section 133 prevails over section 114[K. Hasheem V State of Tamil Nadu 2005(1)SCC 237]


Grant of pardon to an accomplice& criminal procedure code 1973 ;

  • Section 306-308 deal with tender of pardon to accomplice.  

  • Section 306-307 deals with  tender of pardon&power to direct tender of pardon .

  • Section 308- deals with trial of persons not complying with conditions of a tender of pardon 
 

Section 306 of Cr.Pc 1973 deals with Tender of pardon to accomplice;
"(1) With a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in or privy to an offence to which this section applies, the Chief Judicial Magistrate or a Metropolitan Magistrate at any stage of the investigation or inquiry into, or the trial of, the offence, and the Magistrate of the first class inquiring into or trying the offence, at any, stage of the inquiry or trial, may tender a pardon to such person on condition of his making a full and true disclosure of the whole of the circumstances within his knowledge relative to the offence and to every other person concerned, whether as principal or abettor, in the commission thereof."

(2) This section applies to-

(a) Any offence triable exclusively by the Court of Session or by the Court of a Special Judge appointed under the Criminal Law Amendment Act, 1952 (46 of 1952).

(b) Any offence punishable with imprisonment, which may extend to seven years or with a more severe sentence.

(3) Every Magistrate who tenders a pardon under sub-section (1) shall record-

(a) His reasons for so doing;

(b) Whether the tender was or was not accepted by the person to whom it was made,

and shall, on application made by the accused, furnish him with a copy of such record free of cost.

(4) Every person accepting a tender of pardon made under sub-section (1)-

(a) Shall be examined as a witness in the court of the Magistrate taking cognizance of the offence and in the subsequent trial, if any;

(b) Shall, unless he is already on bail, be detained in custody until the termination of the trial.

(5) Where a person has accepted a tender of pardon made under sub-section (1) and has, been examined under sub-section (4), the Magistrate taking cognizance of the offence shall, without making any further inquiry in the case.

(a) Commit it for trial-

(i) To the Court of Session if the offence is triable exclusively by that court or if the Magistrate taking cognizance is the Chief Judicial Magistrate;

(ii) To a court of Special Judge appointed under the Criminal Law Amendment Act 1952 (46 of 1952), if the offence is triable exclusively by that court;

(b) In any other case, make over the case to the Chief Judicial Magistrate who shall try the case himself.

At any time after commitment of a case but before Judgment is passed, the court to which the commitment is made may, with a view, to obtaining at the trial the evidence of any person supposed to have been directly or indirectly concerned in, or privy to, any such offence, tender a pardon on the same condition to such person.
 
Bangaru Laxman v. State, (2012) 1 SCC 500

On "Approver "&Purpose of grant of pardon " court  said "power is not to judge extent of culpability ofperson pardoned but to prevent failure of justice by not allowing offender to escape from lack of evidence"

"a deeming provision is a legal fiction and an admission of non-existence of fact deemed - Hence, while interpreting a provision creating a legal fiction, court has to ascertain purpose for which fiction is created,  "-(2012) 1 SCC 500-D 

Constitutional Validity of approver &Sohrabuddin Sheikh fake encounter case:

The Gujarat High Court  dismissed a petition filed by suspended IPS officer Rajkumar Pandian and some other accused in the Sohrabuddin Sheikh fake encounter case, challenging the constitutional validity of a CrPC section 306 ,related to giving pardon to an accused one of accused 'Amin' moved the special CBI court seeking pardon and turning an approver in the 2005 episode

A Division Bench of justices Jayant Patel & H B Antani rejected the plea with an observation that "section 306 of CrPC, read with principles of natural justice and provisions of the Constitution,does not cause prejudice to the fundamental rights of the accused"



Paritala Ravindra murder case-K. Ram Mohan Reddy vs The State Of AP : 2010

 Sri Justice  Samudrala  Govinddarajulu said :"a case triable by a Magistrate is not in a way worse than a case exclusively triable by a Court of Session, in relation to gravity of the offences involved. In a case triable by the Magistrate, Section 306(4)(b) Cr.P.C., contemplates detaining the person accepting tender of pardon in custody until termination of trial, it cannot be said that the law intended to release the accused from custody even before termination of trial in a Sessions Case where tender of pardon was accepted by the accused in a Sessions Court after committal of the case. Therefore, on proper interpretation of Sections 306 and 307 Cr.P.C., provision under Section 306(4)(b) Cr.P.C has to be made applicable to a case arising under Section 307 Cr.P.C also"

Sankararaman Murder [2004 Case] - 2011

Sankararaman murder case ,Kanchi seer Jayendra Saraswathi is the main accused in 2004 murder case ,In 2011, December 14,A Division Bench of Chennai High Court,Justices C Nagappan and T Sudanthiram, said " according to section 306 (4) CrPC, a person accepting pardon under sub-section (1) of the section had to be detained in custody until termination of the trial, unless the person was already on bail"


Abu Salem Case :
State of  Maharastra  V Abu Salem Abdul Kayyum  Ansari & Ors  (JT 2010 (11) SC 65 ,2010(10) SCALE ,514 2010 AIR(SCW) 6077,(2010) 10 SCC 179.


Question : "whether, the accused has a right to cross examine an accomplice who has been tendered in evidence by the prosecution as approver but later on pardon tendered to him was withdrawn on a certificate of the Public Prosecutor under Section 308 of the Code of Criminal Procedure, 1973 (for short, `Cr.P.C.') and he (approver) has not been further examined by the prosecution as its witness." 


 Held :We have referred to the aforesaid provisions of the Evidence Act, Cr.P.C. and Constitution to indicate that none of these provisions militates against the proposition that a pardon granted to an  accomplice under Section 306 or 307 Cr.P.C. protects him from prosecution and he becomes  witness for prosecution but on forfeiture of such  pardon, he is relegated to the position of an  accused and his evidence is rendered useless for the purposes of the trial of the co- accused. He  cannot be compelled to be a witness. There is no question of such person being further examined  for the prosecution and, therefore, no occasion arises for the defence to cross examine him" 


Emaar township case[A.P]-CBI orderd by A.P High Court :


Stylish Homes director T. Ranga Rao, who has turned an approver&grant of pardon in the case by filing an application uner Cr.PC  306 and already got an anticipatory bail in the above case.
In this case ,Emaar and its Indian associates allegedly diluted the equity of APIIC to six percent, causing huge losses to the public exchequer.









It is settled law the conviction based on accomplice/approver's evidence sustains/prevails.

References :
  1. http://www.indiankanoon.org/doc/356159/ 
  2. http://news.outlookindia.com/items.aspx?artid=699112 
  3. http://www.dnaindia.com/india/report_sankararaman-murder-hc-dismisses-plea-seeking-release-of-accused_1626333
  4.  http://delhicourts.nic.in/DEC%2011/Bangaru%20Laxman%20Vs.%20State.pdf
  5. http://articles.timesofindia.indiatimes.com/2012-01-25/india/30662735_1_emaar-apiic-cbi-cases-emaar-hills-township-project
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