The conviction based on approver's evidence is legal valid &sustainable in India
- 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.
- 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.
- 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.
- 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."
- 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
"(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.
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"
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.