CODE OF CRIMINAL PROCEDURE, 1973

Section 306 - Tender of pardon to accomplish

Comments
1. Legislative history.-Section 306 corresponds to the provisions contained in section
337 of the old Code.
2. "Enquiries and trials"-Meaning of.-The expression "inquiries and trials" in the
heading of Chapter XXIV refers to enquiries contemplated in cases triable by a court of
session which may include enquiries under Chapter X(B) and XI and trials in summons
cases, warrant cases, summary trials and trials by court of session.1
3. Scope of provision.-Section 306 provides the terms on and the machinery by which
the pardon, for the purpose of giving evidence, can be granted by the Magistrate.2
Granting of amnesty by the enquiry officer holding an enquiry to persons who are sure
to be examined as witnesses for the prosecution is highly irregular. Neither the Cr.P.C.
nor the Prevention of Corruption Act recognises the immunity from prosecution given
under these assurances and the grant of pardon is not in the discretion of police
authorities.3
4. Sections 306 and 321-Relative scope.-The procedure laid down in this
section, viz., tendering the co-accused a pardon with all the safeguards mentioned in the
section is not the only method of obtaining the evidence of a co-accused against
another. This section does not control section 321, the language of which is very wide
and gives a discretion to the Magistrate as to whether he would consent to the
withdrawal of a prosecution by the public prosecutor, such discretion to be exercised not
arbitrarily but to be based on correct legal principles. Under section 321, as soon as the
accused is discharged, he is taken away from the category of an accused person and
becomes, under general principles of law, a competent witness against his co-accused.
There is nothing wrong in law, in the court allowing the public prosecutor to withdraw
the prosecution against an accused in order that he may call him as a witness for the
prosecution.4 In cases to which section 306 applies, it is a better exercise of discretion on
the part of the Magistrate to use that section instead of section 321.5 Section 306 deals
with the action of a judicial and section 321 with that of an executive officer. Section 321
says nothing about pardons at all. The whole procedure and the various consequences
under section 321 differ from those under section 306. If the manner in which the
tender of pardon is made follows in substance the method prescribed by section 306,
then the section must apply. Minor and immaterial irregularities or variations cannot be
taken to affect the operation of the section. The special machinery provided under
section 306 has a peculiar feature in that, the pardon under that section is tendered as a
judicial act and under the special precautions, rules and consequences which the statute
sets out. One consequence, perhaps the most important, is that when a Magistrate has
tendered the pardon, the trial must not be by another Magistrate, even though he is
vested under section 29, to try such an offence, but by the High Court or session court.
Where certain accused were charged with offences which came within the offences
mentioned in section 306 and a conditional pardon was tendered to and accepted by one
of the accused and where subsequently the prosecution applied under section 321 and
got the withdrawal of the case as against that accused and he gave evidence as against
the rest in the trial before a special Magistrate, to whom the case had been transferred

and who was empowered under section 29 to try the offences, it was held that what was
done came substantially within section 306 and hence the trial by the special Magistrate
was without jurisdiction.6
5. Power to tender pardon under, not affected by section 8(2), Criminal law
Amendment Act, 1952.-Section 8(2), Criminal Law (Amendment) Act, 1952, made a
distinction between a court of a Special Judge and a court of sessions. Whilst a Special
Judge can himself grant pardon under section 8(2) of the Criminal Law (Amendment)
Act, under section 307, the Sessions Judge has power not only to tender a pardon, but
to order the committing Magistrate to tender a pardon to any person. But, though the
court of Special Judge has itself this power of tendering a pardon conferred on it under
section 8(2), that does not affect the general provisions contained in section 306,
regarding tender of pardon to an accomplice.7
Although the offence under section 5(2), Prevention of Corruption Act, is triable
exclusively by the court of the Special Judge the Chief Judicial Magistrate has authority
to tender a pardon under section 306, as the court of the Special Judge is in law, a court
of session. Reading of provisions of section 306 and the provisions of section 307
together, the Chief Judicial Magistrate is empowered to tender a pardon even after a
commitment if the court so directs. Under section 8(2) of the Criminal Law
(Amendment) Act, 1952, the Special Judge has also been granted power to tender
pardon. The conferment of this power on the Special Judge in no way deprives the Chief
Judicial Magistrate of his power to grant a pardon under section 306. And if at the date
the Chief Judicial Magistrate tenders the pardon the case was not before the Special
Judge then there is no illegality committed by the Chief Judicial Magistrate.8
A Special Judge under the Criminal Law (Amendment) Act, 1952, in a case pending
before him cannot set aside order of the Chief Judicial Magistrate under section 306
granting pardon to one of the accused. The power of the Chief Judicial Magistrate of
granting pardon is concurrent with the power of Sessions Judge. The authority to whom
an application is made first should be the authority to grant pardon and the other
authority should not accept an application subsequently. Where the Special Judge had
already rejected the application for the grant of pardon and the prosecution
subsequently approaches the Chief Judicial Magistrate with the same prayer, without
mentioning the fact that the Special Judge had already rejected the same and the Chief
Judicial Magistrate in ignorance of this, passes an order under section 306 granting the
pardon, the Special Judge, in order to avoid the conflict, should follow the principle
underlying section 395 and refer the matter to the High Court. 9
In a case Madras High Court had held that during the pendency of sessions trial, after
the case was committed, C.J.M. could grant pardon under this provision, specially when
Sessions Judge had forwarded papers to him.10 However, subsequently Apex Court
disagreeing with this principle laid down that after the case is committed by a Magistrate
to court of session, he will have no power to grant pardon under this provision in that
case.11
6. Tender of pardon
(i) Pardon by Special Judge under this section-Validity.-Section 306 empowers
only a Magistrate to tender pardon and has nothing to do with the powers of a Special
Judge. When a Special Judge tenders pardon purporting to act under this section, it is a
very serious blunder on his part to do so ; yet, considering that he has powers to tender
pardon under section 8(2) of the Criminal Law (Amendment) Act, (XLVI of 1952), the
tender of pardon to the accused by a Special Judge cannot be held to be invalid.
Howsoever serious the mistake may be, it cannot go to the root of the case and it
cannot vitiate the trial.12
(ii) Power of State Government to tender conditional pardon.-A State
Government in India has no power to tender a conditional pardon to an accomplice for

the purpose of his being examined as a competent witness against others, accused with
him.13 The evidence given by the accused on the faith of the conditional pardon so
offered, is wholly inadmissible.14 Though the legality of the Government tendering a
pardon can be doubted in this country, yet, there in no authority for the proposition that
the tender of such a pardon by the Government amounts to an illegal inducement or
threat.15 In a case under Narcotic Drugs and Psychotropic Substances Act Government
under section 64 of above Act has got power to tender pardon independent of sections
306 and 307 Cr.P.C. Hence refusal to grant pardon under Code will not disentitle the
State to grant pardon under section 64 of N.D.P.S. Act.16
(a) Pardon by police officers.-Police officers have no right to grant pardon.17
(iii) Offences in respect of which pardon may be tendered.-Under old section 337
(corresponding to this section), as it stood prior to its amendment in 1923, the
Magistrate could tender a pardon only in offences triable by the High Court or court of
session exclusively.18 These cases were superseded by the amendment introduced in
1923 which enlarged the scope of the section. The scope of the section was further
enlarged by Act (XXVI of 1955).
The words of section 308 are of no help in construing section 306. Pardon can only be
tendered under section 306 with respect to the two categories of offences mentioned
therein and none other.19The section applies where there is a bona fide enquiry into what
it is believed at the time may prove to be an offence falling within the purview of the
section.20 All that an officer who can grant pardon under section 306 has to see is
whether on the information at his disposal there is a prima facie case against the person
to whom the pardon is going to be tendered for an offence mentioned in that section. If
that is so, he is competent to grant a pardon. No searching inquiry is called for in this
matter at that stage.21
A valid pardon once having been given is not affected in any way by subsequent
proceedings in the case. It is not affected, for instance, by the result of the trial. Nor is it
affected by a subsequent alteration of the charge.22 The question of the validity of tender
of pardon to an approver is not to be decided with reference to the charges under which
an accused person is committed to the court of session. It depends upon the question as
to whether or not the offence alleged against an accused person or persons is one which
is mentioned in section 306. Where the police sends up a charge-sheet against the
accused under section 477-A, I.P.C., an offence coming within section 306, in addition to
other offences, the committing Magistrate, if he is one of the Magistrates mentioned in
section 306 has jurisdiction to tender pardon, although he subsequently commits the
accused to the court of session for offences not mentioned in section 306.23 All that
sections 306 and 307 require is that there should be an offence coming within the
section under enquiry or trial ; and the fact that there may be other offences alleged or
charged is immaterial.24
(iv) Pardon tendered in respect of other offences-Effect of.-When a Magistrate
tenders a pardon to one of the accused in a case not coming under the section and
examines that accused as a witness, the statement made by that accused is irrelevant
and inadmissible as evidence ; and such a statement is inadmissible even as a
confession of a co-accused.25
(v) Pardon may be granted during investigation.-Under old section 337
(corresponding to section 306) before its amendment in 1923, it was held that the word
"inquiry" in this section was not limited to an inquiry under Chapter XVIII but included
also an inquiry under section 157 held by a Magistrate for the purpose of assisting the
police in the discovery and arrest of the offender.26 In 46 Bom 61, taking contrary
view Macleod, C.J., observed that the only remedy was for the Legislature at the earliest
opportunity to recast (old) section 337, so as to make it clear that the term "offence
under inquiry" included an offence under investigation. But under the amended (old)

section 337 and under section 306, a Magistrate, duly empowered may grant pardon at
any stage of the investigation of the offence. All that the section requires is that there
should be an investigation regarding an offence coming within the section. 27
(vi) Pardon may be granted "at any stage" of inquiry or trial.-The wordings of
section 306, in so far as inquiry is concerned being, very general, it must follow having
regard to the definition of "inquiry" in the Code that the power to grant pardon can be
granted by a Magistrate in the course of an inquiry under section 202 also.28 A pardon
may be tendered at any stage of the inquiry or trial.29There is nothing in section 306 to
prevent a pardon being tendered to a person after a charge has been framed against
him.30
This section does not require that a trial or an inquiry should be in progress when the
pardon is tendered. The fact that a criminal case is temporarily postponed under section
407 does not in any way affect the power of the Magistrate in charge of it to grant a
pardon to the accused under this section.31
When section 306, is read, no doubt is felt that in a case where there is already pardon
tendered to an approver, it is not open to a Magistrate to commit the accused in the case
for trial before the court of session or the High Court, unless he has in the course of that
enquiry recorded the evidence of that approver. Where the approver was not examined
in the course of the enquiry for commitment, there was clear contravention of the
mandatory provision as laid down in section 306, rendering the proceedings and the
order illegal.32
But where the approver was convicted in the very case for 7 years' R. I. and on appeal
the conviction was set aside by the High Court due to defects and irregularities in the
proceedings and after the remand by the High Court, pardon was tendered to him and
he was made approver, it was held that it was not a case in which pardon should have
been tendered to the accused at that stage and no reliance could be placed on the
statement of such an approver.33 Further, if it is the case of the prosecution that
subsequently a prosecution witness was not an accused, then it must show that he had
become an approver on tendering a pardon before the competent Magistrate. But if
there is no material to hold that at any time any pardon was offered to the said witness
and thereafter his statement was recorded by the Magistrate under section 164, such
statement cannot be taken as that of approver.34
(vii) "With a view of obtaining evidence".-An accomplice was given a conditional
pardon under section 306 and his evidence recorded under section 299. The principal
offender having absconded, the trial could not go on. The trying Magistrate referred the
case to the High Court to have the order of pardon cancelled on the ground that it was
invalid, as it was not tendered for the purpose of an inquiry but for the purpose of
securing evidence under section 299. It was held that there was no ground for revision
of the Magistrate's order under section 306 inasmuch as the principal offence was under
inquiry and in order to secure the approver's evidence as to offence, a pardon was
tendered and the proceeding under section 299 was only ancillary to that inquiry.35
Evidence of accomplice is tolerated as necessity as it may be impossible to get sufficient
evidence of many crimes unless some of the participants or at least one of them is
disposed to disclose the circumstances within his knowledge.
The court is entitled to grant pardon under section 306, but no principles are laid down
for the exercise of the discretion. Nor any court has defined the principles for the
exercise of the powers of pardon for the matter must be left to the discretion of the
officer concerned. The police have no right to charge sheet a particular accused. They
must either obtain pardon in accordance with section 306 or have discharged or
acquitted under section 372.36
(viii) To whom pardon can be tendered.-Under sections 306 and 307, it is not

necessary that the person to whom a pardon is tendered should himself be charged with
an offence mentioned in the section. All that is requisite is that the person to whom
pardon is tendered should be supposed to have been directly or indirectly concerned in,
or privy to, such an offence with which another person is charged.37 It is not necessary
that he should be an accomplice or that he should have implicated himself in the
offence.38 The fact that an accomplice in his confession does not implicate himself to the
same extent as the accused is no ground for not granting pardon to the former.39 The
expression "any person supposed to have been directly or indirectly concerned in or
privy to the offence" in section 306 is a very wide one and includes others besides an
accused, who has been sent up for trial by the police.40
The meaning of the words "any person" in section 306(1) appears to be abundantly
clear, being subject only to the qualification expressly laid down in the said provisions
themselves, viz., "supposed to have been directly or indirectly concerned in or privy to
the offence" and not in any way otherwise circumscribed to denote a person who has
actually been made an accused. There is no other qualification in the provision excepting
a condition that he would make "a full and true disclosure of the circumstances, etc."41
The wordings of section 306(1), do not contemplate that the permission to tender
pardon must only relate to a person who is an accomplice or has implicated himself in
the offence. What the section requires is to obtain statement of any person who is
supposed to be directly or indirectly concerned in or privy to the offence and such a
person can be granted pardon on condition of his making a full and true disclosure of
whole circumstances within his knowledge relative to the offence. A person who applies
for pardon under sections 306 and 307, can be assumed to be directly or indirectly
concerned in the offence. The assumption does not mean that he is party to the offence.
Therefore, inculpation of the approver in the commission of a crime is not a necessary
condition for being pardoned under sections 306 and 307.42
When the accused has pleaded guilty, a pardon may be validly tendered to him. The
word "supposed' is intended to exclude a man who has been actually convicted of the
crime and not a man who is unconvicted and pleads guilty.43
(ix) Conditions of pardon.-The grant of pardon carries an imputation of a guilt and on
acceptance thereof a confession of it. A pardon is an act of grace which exempts the
individual on whom it is bestowed from the punishment the law inflicts for a crime he
has committed. It is in substance and effect a contract between the State on the one
hand and the person to whom it is granted on the other. It is open to the pardoning
power to annex to a pardon any condition, precedent or subsequent. When a pardon is
granted on a condition precedent, it does not become operative until and unless the
prisoner performs the condition in question. If the condition is not performed the
prisoner stands precisely as though no pardon had been granted. If the condition is
satisfied the pardon and its connected promises take full effect.44
The mandate of law that an approver shall be examined both before the committing
Magistrate as well as during trial is binding not only on the trial court and the
prosecution but also on the approver as well. It is not open to the State to withdraw the
pardon from the approver nor would it be open to the approver to disown and cast away
the pardon granted to him before the last terminal stage of his appearing in the witness
box in the trial court and it is only his not making full and true disclosure of all the facts
relating to the case in the witness box in the trial court that the pardon can be said to
have been withdrawn by the State and the approver having thrown off the pardon.45
Section 306 enjoins that the approver who is granted pardon has 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 abetter, in the commission thereof.
By the tender of pardon, there should be no temptation offered to serve for the truth. A

tender of pardon on condition that the approver should have been present at the scene
of a murder and should profess to have personal knowledge of the circumstances is
illegal, such a condition is calculated to tempt the accomplice to strain the truth and is
beyond the scope of this section.46
The order extending the pardon is in relation to a trial and even after conclusion of the
trial in an appeal, it is open to an accused person to question the correctness and
impropriety of the pardon extended to a person. It is also open to challenge the
statement of approver. The rights of the parties are not conclusively decided by order of
tender of pardon. Rights subsist and can be questioned even at the stage of arguments
before the trial court as well as before the appellate court. The order passed by the
Sessions Judge is an interlocutory order and revision from it is not permissible.47
(x) Magistrate to exercise proper discretion in granting pardon.-The exercise of
the power to tender pardon rests on judicial discretion and the Magistrate or the Judge
should proceed with great caution on sufficient grounds, recognising the risk which the
grant of a pardon involves of allowing an offender to escape just punishment at the
expense of the other accused. The grant of pardon is not the discretion of police
authorities, it is a judicial function.48 A Magistrate cannot be said to have exercised a
sound discretion in tendering pardon to one of the accused if, besides the approver there
are as many as six eye-witnesses to the crime who had given evidence in that case.49
Where a co-accused who remained long in police custody and made a statement in jail
to the Magistrate that he was being tortured by the police to make a confession,
subsequently made a confession implicating himself and others and he was given pardon
under this section, it was held that the court exercised its discretion wrongly in giving
him pardon, which amounted to procuring his evidence against the other accused and
that the evidence of such a person who made two inconsistent statements should not
have been relied upon.50
(xi) Tender of pardon need not be made personally by Magistrate.-It is not
necessary that the Magistrate should himself personally tender pardon ; the tender may
be in writing.51
The court is entitled to grant pardon under section 306, but no principles are laid down
for the exercise of the discretion. Nor any court has defined the principles for the
exercise of the powers of pardon for the matter must be left to the discretion of the
officer concerned. The police have no right not to charge-sheet a particular accused.
They must either obtain pardon in accordance with section 306 or have discharged or
acquitted under section 372.52
(xii) Tender of pardon by Magistrate without local jurisdiction null and void.-A
Magistrate, who has no local jurisdiction, cannot tender a pardon to one of the persons
implicated in a dacoity which was committed in a neighbouring district and inquired into
there. The pardon, so tendered, is null and void and cannot be pleaded in bar of
sentence.53
(xiii) Tender of pardon by first class Magistrate when offence under
investigation.-In respect of tendering a pardon by a first class Magistrate during the
investigation of an offence, he must be a Magistrate having jurisdiction in the place
where the offence might be inquired into or tried.54
(xiv) Right of accused.-An accused has no right to insist that person who is granted
pardon, should be examined before him. Approver need not be examined in presence of
accused. Accused has no right of cross-examination at this stage.55 When an accused
had failed to raise plea at earlier stage that he was not given opportunity to crossexamine approver, he should not be allowed to raise this plea at the stage of
arguments.56
7. Recording of reasons for pardon by Magistrate [Sub-section (3)(a)].-The view

under old section 337 was : The recording of reasons by the inquiring Magistrate is not a
condition precedent to the tender of pardon and its acceptance by the approver.57 When
the facts which led up to the tender of pardon appear on the record, the omission to
state the reasons is not only an illegality but not even an irregularity which vitiates the
proceedings held subsequent to the tender of pardon.58
But sub-section (3)(a) of section 306 now makes it obligatory on the Magistrate
tendering pardon to record his reason for so doing. If the Magistrate granting pardon
does not assign any reason, the whole order can be quashed on this ground alone.59
Sub-section (3), which provides for an obligation on the part of the Magistrate tendering
pardon under sub-section (1), to record his reason for granting pardon and also whether
the tender was or was not accepted by the person to whom it was made is indicative of
the fact that the tender of pardon will have to be in writing. The mere fact that the
Magistrate who tenders pardon has failed to record in the order tendering pardon that
the accused to whom the tender is made, has accepted the tender or not, would not
invalidate the tender of pardon if it is otherwise valid in law as indicated above. It would
only amount to an irregularity and not an illegality. The Sessions Judge is empowered to
tender pardon in a case received by him on commitment under section 307, on the same
conditions as provided in section 306. Normally, High Court will not interfere with the
exercise of the power of tendering pardon.60
8. Acceptance of pardon may be inferred from circumstances.-It is nowhere laid
down in Cr.P.C. that the acceptance of a pardon should be in writing or that it should be
expressed in any other manner. It is to be gathered from the circumstances. The very
fact that the accused appeared before the various Magistrates in the capacity of a
witness, and not that of an accused person, is a clear indication of the fact that he had
accepted the pardon tendered to him.61
9. Approver's disclosure of facts may be oral.-Section 306 nowhere lays down that
the disclosure of facts shall be reduced to writing. If such disclosure is made orally, the
verbal testimony of the person to whom it has been made will be sufficient to prove the
statement. As a rule of caution, however, the approver's statement is always formally
reduced to writing.62
10. Effect of pardon-Accused must be presumed to have been discharged.-The
accused admitted before the Magistrate that the confessional statement made by him at
Bombay, a copy of which was read over to him, was voluntarily made by him and that
accepted it as a true statement of all that transpired in connection with the conspiracy
and also about the murder and disposal of the dead body of the deceased. The
Magistrate thereupon passed the order that it was a fit case for tendering pardon to him
under section 306. It was held that the moment the pardon was tendered to the accused
he must be presumed to have been discharged whereupon he ceased to be an accused
and became a witness. It could not, therefore, be said that before tendering the pardon
to him he had not been discharged and consequently his evidence as an approver was
not legally admissible.63
11. Extent of immunity granted by pardon.-In a case of gang dacoity, S was
tendered a pardon under section 306. He made a full statement implicating himself and
others, pointed out the place where he had a carbine and ammunition concealed, gave
them to the police and in all respects complied with the conditions of his pardon. At the
close of the case he was released. He was then re-arrested and tried under section 20 of
the Arms Act in respect of the possession of the carbine and ammunition which he had
given to the police. It was held that his illegal possession of the carbine and ammunition,
which were implements of his trade of crime being an offence in connection with the
matter of the dacoities and inseparable from his guilt as a dacoit, his prosecution for
such an offence, after he had fulfilled the condition of his pardon in the dacoity case,
was improper and the conviction was set aside.64 It would not be open to the committing

Magistrate to spilt up the trial on the basis of the offences, which are exclusively triable
by the court of session and the offences, which are not so. If this be so, it is apparent
that even though the complaint is also with regard to the offences which are not
exclusively triable by the court of session these very offences became exclusively triable
by the court of session by virtue of the fact that they arise out of the same transaction
and are expected to be tried alongwith offences which are exclusively triable by the
court of sessions. If pardon is tendered for one offence and not for the other, the result
would be that the same person would be a witness in one case and an accused in the
other, even though both the cases are covered by the same set of facts and
circumstances. Obviously such a situation could never have been contemplated by the
Legislature. On the other hand, if pardon is not tendered even for offences covered by
section 306, then the whole purpose of enacting section 306 would be lost. 65 Where,
however, a person made a confession to a Magistrate admitting his complicity in several
dacoities, the tender of pardon to him in respect of one of the dacoities is no bar to the
admissibility of his confession relating to a different dacoity in his subsequent trial for
that offence.66
12. Magistrate has no power to withdraw tender of pardon made and
accepted.-If as a result of a tender of pardon by the Magistrate, the accused gives
evidence or even signifies his acceptance by making a statement, it is then not open to
the Magistrate to withdraw the pardon. The fact that an accused, soon after the pardon
is tendered, breaks a condition on which the tender is made, does not give the
Magistrate the right to withdraw the tender of pardon which has once been
accepted.67 Where a committing Magistrate has once tendered a pardon to an accused,
he has no jurisdiction in law to withdraw it himself. The only provision of law which
governs such a case is section 308 and until the condition laid down by that section is
fulfilled, there can be no valid basis for the prosecution of a person to whom pardon has
been tendered under section 306. The basis of the prosecution in such a case is wholly
and solely the certificate of the public prosecutor and this condition cannot possibly be
fulfilled by the public prosecutor agreeing with the opinion of the Magistrate that the
accused should be prosecuted.68 Where a pardon has been tendered under circumstances
which prima facie disclosed an offence specified in the section, the person who accepts
the pardon can only be tried upon by a certificate of the public prosecutor in terms of
section 308. There does not appear to be any provision for revocation or forfeiture of
pardon in any other circumstances.69
13. Examination of approver as witness.-The provisions enacted in section 306, do
not exactly limit the time when the accomplice is to be examined. They, of course,
clearly speak that the accomplice is at the first instance to be examined by the
Magistrate taking cognizance and subsequently he is to be examined by the trial
court.70 Where an approver was not submitted for cross-examination during committal
proceedings but was cross-examined during the course of trial, it will be too late in the
day for the accused to raise objection in this regard.71 Reading section 306, it is clear
that there is no obligation on the Magistrate to record a statement of the person
concerned before he is tendered a pardon with regard to the offences coming within said
section. The only condition which a Magistrate can place on the accused concerned
before tendering a pardon to him is that he should make a full and true disclosure of all
the facts within his knowledge with regard to the offence. It is not obligatory on the
prosecution to record such a statement under section 164, before or even after a pardon
is tendered to him. If the prosecution thinks fit to get a statement recorded under
section 164, it would be at liberty to do so. But the prosecution cannot be compelled to
get the statement recorded under section 164, before he is actually examined by the
Magistrate as provided in section 306.72 The Lahore High Court, has held that section
306(4)(a) means that any person who has accepted a tender of a pardon under the
provisions of section 306 must be examined as a witness in the court of committing
Magistrate and the subsequent trial of every person tried for the same offence, provided
of course that it is physically possible for the prosecution to produce the approver. Non-

compliance with this provision renders the trial illegal. If the approver dies after giving
evidence before the committing Magistrate, it is not imperative that the provision should
be complied with, but the facts that the approver appears to the court to be an
untrustworthy witness, or that the court has come to the conclusion that he had not
taken any part in the crime and his evidence of participation in it was a complete
fabrication, does not absolve the court from complying with the statutory
provisions.73 Section 306(4)(a) makes it imperative for the prosecution to produce a
person who accepted a tender of pardon, but whose tender of pardon has been
withdrawn before the trial in the session court takes place. No distinction can be drawn
between a person "who has accepted" and a person "accepting" a tender of pardon. The
tender of a pardon is one act and acceptance of the same is also one act. There is,
therefore, no continuing offer or continuing acceptance in any sense of the word in the
case of a person who has been offered and has accepted a tender of pardon. When a
person did accept the tender of pardon once, his subsequent resiling from the position
that he once occupied does not make him cease to be a person accepting a
pardon.74 The Oudh and Sind Courts have also taken the same view. The imperative to
provisions of section 306(4)(a) make it obligatory on the part of prosecution examine an
accomplice who has accepted to pardon. When there is an approver, the first
requirement is that his statement must be recorded. The second requirement is that
irrespective of the nature of the original proceedings viz. trial or inquiry not only the
proceeding becomes inquiry simpliciter for committal but even though the offence may
be triable by the Magistrate he has to commit the accused to the court of session and
not try himself. The scheme of section 306, contemplates that a Magistrate will take
cognizance and as soon as that is done, in that court only an approver will be examined.
The emphasis is not upon the person who probably may be transferred before the
approver is examined but his court will exist. Whoever is manning the court of the
Magistrate taking cognizance will be the relevant court for examination of the
approver.75 The fact that he retracts his confession after acceptance of pardon and that
his pardon is consequently withdrawn before the sessions trial, does not make any
difference. His examination is still necessary.76 A person accused of having committed
the offence under sections 395 and 396, I.P.C., alongwith other accused was granted a
pardon and examined as a prosecution witness before the committing Magistrate. Since
he did not comply with the conditions of pardon, the public prosecutor put in an
application to the effect that he did not want to examine the approver since he had
forfeited his pardon. At the commencement of a fresh trial necessitated by the
retirement of the Sessions Judge, the public prosecutor was not allowed to examine the
approver. It was held that the approver was a competent witness against other accused
and did not cease to be so even after withdrawal of his pardon and as fresh trial was
taking place, previous refusal of the prosecution to examine him would not debar them
from examining him at the fresh trial.77
There is nothing in the Cr.P.C. to compel the Magistrate tendering pardon to examine the
person proposed to be pardoned in full and to record his whole confessional statement
again. Normally the High Court will not interfere with the exercise of the power of
tendering pardon.78
If tender of pardon is accepted by the accomplice concerned, the only obligation placed
upon the prosecution is to examine him as a witness in the case.79
(i) 'Offence' what connotes?-The expression "the offence" in section 306(4)(a) refers
to the offence in respect of which pardon has been granted under the provisions of subsection (1). Where, therefore, the offences in respect of which the accused are being
prosecuted are not offences in respect of which pardon has been given under subsection (1), no duty is imposed upon the State to examine the so-called approver, or
upon such approver to give evidence in his capacity as an approver. He can give
evidence only in his capacity as a witness.80
(ii) Examination by transferee Magistrate.-It cannot be said as a general rule that

once cognizance is taken by a Magistrate, no other Magistrate or court can again take
cognizance of the offence. "Cognizance" is defined in Wharton's Law Lexicon as taking
note judicially. Therefore, a transferee Magistrate has to take cognizance of the offence
before he could proceed to enquire into it or to proceed with a trial in respect of the
offence. Accordingly, the expression "the court of the Magistrate taking cognizance of
the offence" occurring in sub-section (4)(a) of section 306, would also include a
Magistrate to whom the case is transferred for enquiry or trial. Hence, it is not necessary
that it is only the Magistrate who took initial cognizance should examine the approver
and not the Magistrate to whom the case is transferred for enquiry.81
(iii) Examination mandatory.-In a case where the accused is tendered pardon and is
taken as an approver, a special proceeding is laid down and the Magistrate taking
cognizance cannot dispense with this special provision. When the committal is made
without examining the approver, as required by sub-section (4) of section 306, the
committal is illegal and is liable to be set aside, unless the accused are given an
opportunity to cross-examine the approver who is examined as a witness, it cannot be
said that the provision of section 306(4), which is mandatory in nature is complied with
and such a failure which is not curable is deprivation of an important right which would
cause him prejudice resulting in failure of justice. Mere recording of a statement of an
approver does not amount to examination of him as a witness and, therefore, the
provision under section 306(4), is not complied with and consequently the committal
order passed by the Magistrate is liable to be quashed.82
There is nothing mandatory on the fact that a person accepting tender of pardon made
under sub-section (1) of section 306, should be examined twice. What is mandatory is
that he should be examined as a witness and the provision for an examination by the
Magistrate taking cognizance of the offence is not for the purpose of providing an earlier
statement on oath for the purpose of cross-examination by the accused at the ultimate
trial, but to have an earliest possible statement on oath by the approver for the purpose
of knowing the truth.83
Examination under section 306(4), of the person, accepting tender of pardon is
compulsory and the examination or questioning at the time of tendering pardon is not a
substitute for it. There is no question of the accused being permitted to cross-examine
the approver at that stage. Recording of the confession will not debar the Chief Judicial
Magistrate from examining the approver under section 306(4) or from committing the
case.84
Once an accused is granted pardon under section 306, he ceases to be an accused and
becomes a witness for the prosecution. Sub-section (4) of section 306, casts an
obligation on the prosecution to examine the approver both in the committing court as
well as in the trial court, no matter that he has realised from his earlier statement.85
(iv) Sessions Judge may make over case for trial.-Approver has to be examined as
a witness before the Magistrate taking cognizance of the offence (that is, in committal
proceedings) and the accused must be given opportunity of cross-examination. There is
nothing in section 306, which suggests that the Sessions Judge himself should try the
case or and that he cannot make over a case for trial to Additional or Assistant Sessions
Judge in appropriate cases.86
(v) Effect of non-examination of approver.-Failure to comply with provisions of
section 306(4) is an illegality and not a mere irregularity in procedure and makes a trial
void.87
The committal proceedings and the order would be illegal if, in breach of sub-section (4)
of section 306, the committing Magistrate commits an accused to the court of session
without the prosecution examining the person who has been tendered pardon and who
has accepted the same.88

When section 306 is read no doubt is left that in a case where there is already pardon
tendered to an approver, it is not open to a Magistrate to commit the accused in the case
for trial before the court of session, unless he has in the course of that enquiry recorded
the evidence of that approver. Where the approver was not examined in the course of
the enquiry for commitment, there was clear contravention of the mandatory provision
as laid down in section 306, rendering the proceeding and the order illegal.89
The committal proceedings would be illegal if, in breach of section 306, the committing
Magistrate commits an accused to the court of session without the prosecution
examining the person who has been tendered pardon and who has accepted the same.
The commitment order being illegal, the sessions trial is contrary to law and the
judgment is a nullity and must be set aside. There is no provision of law that on account
of the delay in not examining the approver, this court would quash the prosecution.90
When pardon is granted to one of the accused, and he is taken as an approver in the
case and cited as witness but he is not, however, examined in the committal court
during the enquiry, this omission vitiates the committal proceedings.91
Whether the case is to be committed or made over, it is mandatory that the Magistrate
having cognizance of the offence shall examine the person accepting a tender of pardon
made under sub-section (1) of section 306. In other words, the examination of the
approver is a condition precedent for the committal. Any violation of the mandatory
provisions of section 306, sub-sections (4) and (5) by the Magistrate taking cognizance
of the offence clearly amounts to an illegality which would vitiate the entire committal
proceedings.92
(vi) Non-examination of approver not a breach of condition.-The fact that the
approver has not been examined at the trial of the persons he has implicated, is not a
breach on the part of the prosecution of the conditions upon which the disclosure was
made and pardon granted, so far as the trial of the approver himself is concerned.93
14. Approver's Evidence-Credibility.-Section 306 itself shows that the motivating
factor for an approver to turn, what in England is called "King's evidence" is the hope of
pardon and not any noble sentiment like contribution at the evil in which he has
participated. Evidence of accomplice is tolerated as necessity as it may be impossible to
get sufficient evidence of many crimes unless some of the participants or at least one of
them is disposed to disclose the circumstances within his knowledge. Whether the
evidence of the approver should in any given case be accepted or not will have to be
determined by applying the usual tests such as the probability of the truth of what he
has deposed to, the circumstances in which he has come to give evidence, whether he
has made a full and complete disclosure, whether his evidence is merely self-exculpatory
and so on and so forth. The court has, in addition, to ascertain whether his evidence has
been corroborated sufficiently in material particulars. What is necessary to consider is
whether applying all these tests the evidence of the approver should be acted
upon.94 Where investigating officer had himself granted pardon, without resorting to
provisions of section 306 Cr.P.C., it was held that evidence of such accomplice could not
be acted upon.95
(i) Sufficient corroboration.-In Sarvanathan, the Supreme Court observes that the
antecedents of the approver do not really make him either better or worse. His evidence
can only be accepted on its own merits and with sufficient corroboration. This
corroboration is of two kinds. First, the court has to satisfy itself that the statement of
the approver is credible in itself and there is evidence other than the statement of the
approver that the approver himself had taken part in the crime ; secondly, the court
seeks corroboration of the approver's evidence with respect to the part of other accused
persons in the crime.96
It is not essential for the prosecution to prove that an approver, to be considered
reliable, is a "penitent witness". The illegality in tendering pardon to an accused person

does not affect his competence as a witness. It is a basic rule of appraisal of evidence of
all witnesses, whether approvers or not, that their versions must be shown to be
credible. It is also a rule common to all types of unreliable witnesses, including
approver's, that corroboration of their versions should be found before accepting them.
The part which is rejected as well as the part which is accepted has to be subjected to
the above mentioned tests for appraisal of evidence. In using that part of the evidence
of the approver which has passed the test of credibility, as merely corroborative of the
evidence given by other witnesses on the same aspect of the case, no rule of prudence
or practice is violated. The maximum "falsus in uno falsus in omnibus" is not applicable
either to approvers or to any other class of witness in this country.97
It cannot be held that the evidence of an approver and the corroborating pieces of
evidence should be treated in two different compartments, that is to say, the court shall
have first to consider the evidence of the approver de hors the corroborative pieces of
evidence and reject it if it comes to the conclusion that his evidence is unreliable, but if
it comes to the conclusion that it is reliable then it will have to consider whether that
evidence is corroborated by any other evidence. In most of the cases, the said two
aspects would be so inter-connected that it would not be possible to give a separate
treatment, for as often as not the reliability of an approver's evidence, though not
exclusively, would mostly depend upon the corroborative support it derives from other
unimpeachable pieces of evidence.98
Where the High Court has held that the evidence of the approver was reliable and was
corroborated on material particulars by good prosecution witnesses who had been
believed by the court, there was no error in the judgment of the High Court upholding
the conviction.99
The receiver of a bribe in relation to the giver is certainly an accomplice. An accomplice
is unworthy of credit unless he is corroborated in material particulars. The tainted nature
of his testimony must subject his evidence to strict scrutiny before it can be accepted.100
(ii) Corroboration in every respect not necessary.-It is not necessary that the
approver's evidence should be corroborated in every respect and thus render his
evidence superfluous. It should be corroborated in material respects. The corroborative
evidence must be such as to lend assurance to the mind of the court that the evidence
of the approver could be safely relied on.101 There should be corroboration of the
approver in material particulars and qua each accused.102
The corroboration of an approver's evidence need not be a kind which proves the offence
against the accused. It is sufficient if it connects the accused with the crime.103
Approver's evidence must receive corroboration which must be of such a nature that it
must connect or tend to connect the accused with crime.104
The convictions of the accused rested on the evidence of the approver adequately
corroborated from independent sources. There are concurrent findings of the courts
below that the approver is reliable. There were no grounds to reject the testimony of the
approver. There was general corroboration of the approver in regard to the motive and
the occasion for committing the crime (murder). It was held that the appellants were
rightly convicted for murder.105
(iii) Twin test of reliability and corroboration.-The basic idea of a pardon is that the
fear of prosecution being removed, a person, though privy to the offence, may feel free
to give true evidence and make a full disclosure of the events about the crime. The
tender of pardon not having been proved a person cannot be regarded in law as an
approver. The evidence of an approver has to meet the twin tests of reliability and
corroboration.106
In order to accept approver's evidence, it must satisfy two tests, first, his evidence must
show that he is a reliable witness and secondly his evidence must receive sufficient

corroboration.107
At first, it will have to be seen whether the approver is a reliable witness. If he passes
that test, then it is required to be seen if the evidence adduced by the approver gets
corroborated by other reliable and independent evidence at least on material particulars.
But if it is found that the approver cannot be declared as a reliable witness, then the
question of seeking corroboration of his evidence does not arise. 108
There can be no question of conviction based on the evidence of an approver even if
corroborated in the material particulars unless the court is satisfied that the evidence is
reliable. It is open to the court to look into the corroborative evidence to consider the
question of reliability of the approver's evidence and then to consider whether there is
corroboration in material particulars of the prosecution case.109
15. Accomplice-Who is?-Under section 306, an 'accomplice' 'is any person supposed
to have been directly or indirectly concerned in or privy to the offence'. An accomplice
signifies a guilty associate in crime and he is in a position who sustains such a relation to
the criminal act that he could be jointly charged with the accused. A witness
participating in the prior concert with the accused and possessing the same common
intention and who has failed to disclose the fact of crime to others may be ascribed the
character of an accomplice though he did not take any direct part in the execution of the
crime.110 Where a person came to know of a conspiracy to murder another but never told
the latter and it was also shown that he agreed to the proposal of the conspirators and
that he was being actuated by sordid motives in joining the conspiracy, such a person
was an accomplice.111 Where, after a murder was committed, one of the inmates of the
house assisted in the removal of the blood-stains on the ground, but she did so under
compulsion and threat of murder, and not with a view to assisting either in the
concealment of the crime or to promote it, she was not an accomplice.112 It cannot be
said that a person, making a statement relating to the fact of a death is an accomplice
when it cannot be said that he was aware of the commission of a crime or that the
matter about which he spoke was known to him to have been the result of a crime and
that he was, therefore, participating in the offence committed or in that of screening the
evidence of the crime.113 A receiver of stolen property is not necessarily an accomplice of
the thief. Where a person receives for safe custody from another property which he
knows to be stolen but subsequently, realising the danger, discloses the information to
the police, it cannot be said that he is an accomplice.114
(i) Accomplice, different from spy or detective.-A person who allies himself with
the prosecution before the commission of the offence and before he associates with the
accused in the perpetration of the offence cannot be called an accomplice, the object in
such case being not the perpetration of the offence but the detection of it. Where,
therefore, certain persons associated with the accused without any criminal intention
with the sole object of entrapping the accused in order to detect an offence, they could
not be regarded as participants in the crime but were mere spies and detectives.115
(ii) Competency of accomplice who has not been granted pardon, as witness.The prosecution is wrong in examining an accomplice as a witness without following the
provisions of section 306. The practice of usurping the powers of the Magistrate in
breach of section 306 is reprehensible.116 A pardon may be offered to one or more of the
accused, but only, in the manner prescribed by law. If, therefore, such pardon has not
been given and an accused who has not been proceeded against is thereby made
competent witness, in the trial of the others, and such illegality has operated to their
prejudice, the trial is bad and the conviction must be set aside.117 An accomplice who has
been promised immunity from prosecution by a State Government and who has not
been formally discharged by a written order of a Magistrate does not cease to be an
accused person and, therefore, cannot be examined under sub-section (4) of section
306.118 But where, at the opening of a sessions trial, the name of an approver who had
already been granted pardon was still in the category of the accused by mistake, and, at

the trial, as soon as the mistake was found he was removed from the dock, it was held
that he was competent to give evidence in the case.119
But see the following case. When the accused has pleaded guilty but not convicted, the
evidence given by him though on a pardon illegally tendered, is admissible in evidence.
The trial against him practically closes as soon as his plea of guilty is recorded.120 A
person, on a promise of pardon by the State Government for an offence not falling
within this section was sent up as a witness in the session court. It was held that he was
not an accused person and that his evidence on oath was admissible.121 The statements
of a person illegally pardoned by the police and discharged, are admissible in evidence
as such a person is not an "accused" within the meaning of section 313.122 There is no
provision of Indian statute law, nor is there any principle of natural justice, which makes
an accomplice, as such an incompetent witness at the trial of another person in respect
of the offence, in the commission of which he was an accomplice. The prosecution is not
evading the provisions of section 306 when it puts into the witness-box an accomplice in
the commission of an offence to which that section does not apply. A refusal to admit his
evidence, merely because the case is one outside the purview of section 306 would be a
clear error of law. It is not necessary, in order to make an accomplice a competent
witness, that the procedure prescribed by section 306 should be invariably made use
of.123 An accomplice, if he is not an accused under trial in the same case, is a competent
witness and may, as other witnesses, be examined on oath. If he is not set up for trial or
if he is tried separately or if he is convicted, he may give evidence on
oath.124 A and B were charged together before the committal court, the former under
sections 302 and 379 and the latter under sections 201 and 411, I.P.C. When the case
was in the session court and before the trial commenced, the case against B was
separated. B was offered as a witness against A in the trial. It was held that although it
would have been desirable to have proceeded in such cases under section 321, the fact
that instead of obtaining the discharge of the co-accused under that section his case was
separated could not stand in the way of the co-accused being competent witness at the
trial. That would only go to affect the value of his evidence and not his competency.125
16. Commitment for trial [Sub-section (5)].-If a Magistrate, who takes cognizance
of an offence and grants conditional pardon to an approver, is satisfied that there is
a prima facie case against the accused, which is exclusively triable by the court of
session he is bound under this sub-section to commit the case to that court for trial. He
has no jurisdiction to try the case himself.126 Under section 306(5), the Magistrate who
has tendered pardon has no power to try the case himself, even if he is otherwise
competent to do so.127
Where a Magistrate tries a case and frames a charge under section 395, I.P.C., he is
bound under this sub-section to commit the accused to the court of session. He has no
further jurisdiction left and cannot record an order either of acquittal, or of conviction
under section 395, I.P.C. He cannot retain or assume jurisdiction by reducing the charge
to one under section 384, I.P.C.128
When a Magistrate tenders a pardon to an accused person who so becomes an approver,
the remaining accused must be committed to the sessions, and the Magistrate becomes
incompetent to try the case himself provided he is satisfied a prima facie case has been
made out against the accused.129
In the course of his evidence, the person to whom pardon has been tendered may
disclaim any connection with or knowledge of the offence, but this does not mean that
the tender of pardon thereby ceases to be effectual. It may be that the witness by his
evidence renders himself liable to forfeiture of the pardon and to a subsequent
prosecution, but so far as the accused then being tried is concerned, his position and his
right to trial by the session court are not dependent upon the nature of the evidence
given by the person who has accepted the pardon. The words of section 306 are that the
pardon is tendered to a person "supposed" to have been directly or indirectly concerned

in or privy to the offence, and even if the supposition turns out to be ill-founded, the
operation of other clauses of the section will remain unaffected.130
Section 306(5) means that where a pardon has been granted to one accused who has
been examined as a witness, then the case against the other accused must be
committed to the sessions if aprima facie case against the latter is established and not
tried by the Magistrate himself. The section cannot be interpreted to mean that the
approver must be committed for trial to the court of session.131 In sub-section (5) of
section 306, the word "person" refers to the approver and the word "accused" refers to
persons who are accused other than the approver, for by the pardon the approver ceases
to be an "accused" so long as the pardon remains in force. In other words, under subsection (5), it is not competent to the Magistrate to commit to sessions a person who
has been tendered a pardon and who has been examined as a witness.132 Where the
Magistrate committed the approver also to the sessions, the commitment of the
approver was illegal. However, the trial of other accused was not vitiated by the
commitment of the approver which at the most was a mere irregularity.133 Where an
accomplice made confessional statement and was granted pardon but died before he
could be examined under sub-section (4) the grant of pardon is not complete and the
case need not be transferred under this clause.134
(i) Sub-section (5) inapplicable to trial under Ordinance.-The provisions of the
Ordinance overrule those of the Code, in so far as they are at variance, so that a special
Magistrate trying a case under Ordinance II of 1932 and tendering a pardon to an
approver could proceed with the trial and need not commit the case to sessions. 135
(ii) Sub-section (5) inapplicable to trial under Bengal Suppression of Terrorist
Outrages Act.-A Special Magistrate appointed under section 24 of Bengal Suppression
of Terrorist Outrages Act (XII of 1932), may, acting under section 306 tender a
conditional pardon, and under section 306(4)(a) examine the pardoned man as a
witness in his court, but must try the accused himself instead of committing him for trial
to the court of session as section 306(5) provides.136
17. Detention in custody until termination of trial [Sub-section (4)(b)].-Subsection (4)(b) of section 306 declares that an approver, unless he is already on bail,
shall be detained in custody until the termination of the trial. The object requiring an
approver to remain in custody until the termination of the trial is not to punish the
approver for having agreed to give evidence for the State, but to protect him from the
wrath of the confederates he has chosen to expose, to prevent him from the temptation
of saving his erstwhile friends and companions and to secure his person to await the
judgment of the law.137 The word "already" refers to the time when the Magistrate
tenders a pardon. He has power under sub-section (1) to section 306 to tender a pardon
at any stage of the trial or investigation. If the accused to whom he tenders a pardon is
already on bail, there is no necessity for the approver to be remanded to custody
thereafter, but if he is not on bail, the Magistrate is bound by the provisions of subsection (4)(b) to retain the approver in custody until the termination of the trial.138 An
approver who was in remand when a pardon was tendered and accepted by him, must
be detained in custody under section 306(4)(b) till the termination of the trial if
committal ensues or till termination of the inquiry if the committal does not ensue. The
fact that the other accused have been let off is immaterial.139 Neither the inquiring
Magistrate nor the Sessions Judge has got the right to set at naught the mandatory
provisions of section 306(4)(b) based on very salutary principles of public policy and
public interest, and release an approver who is not on bail at the time of his acceptance
of the tender of pardon, after the approver has deposed any, in the committing
Magistrate's court, that is, in the course of the preliminary inquiry, and before the
inquiry has ended, and if committal ensues before he has deposed at the trial in the
session court truly and fully the matters within his knowledge. An approver cannot be
placed in the same position as an accused and the provisions of sections 437, 439 and
440, cannot apply to him. Even if sections 437, 439 and 440, apply it would not be a fit

case for releasing an approver on bail in a murder case. Besides an approver has to be
kept in safe custody till the conclusion of the trial or inquiry if no committal ensues must
be read as an exception to the general provisions contained in old. sections 497 and
498.140 Sub-section (4)(b) should be interpreted as obligatory only on the Magistrate
granting the pardon requiring him to detain the accomplice in custody and as in no way
affecting the powers of the superior courts. But the discretionary powers of superior
courts to grant bail to approvers should be sparingly exercised.141
The High Court has no inherent power to admit an approver to bail even if he is able to
produce facts at the hearing sufficient to entitle him to bail. Further, the inherent power,
if any, has been expressly taken away by the enactment of section 306(4)(b).142
(i) Imperative obligation to detain in custody.-The use of the word "shall" in subsection (4)(b) of section 306 indicates that the Legislature has imposed a statutory and
an imperative obligation on the court to detain an approver in custody until the
conclusion of the trial even when the prosecution of the case has been unreasonably
delayed in the oppression of the prisoner and even when the delay is occasioned by the
failure to present the challan or to deal with the case expeditiously.143
There is nothing in section 306 or section 307, which deprives the Magistrate of his
power to grant pardon in a case which was committed to the court of session for trial.
The knowledge of the Magistrate about Session Judge's rejection of application of the
associate public prosecutor whether pardon could be tendered to the accused is not
relevant for the purpose of deciding the question of the legality of the tender of pardon
by the Additional District Magistrate under section 306. After the tender of pardon by the
Magistrate, refusal of the Sessions Judge to remand the accused to jail custody is not
justified in law.144
According to sub-section (4)(b) of section 306, an approver has to be kept in custody till
the termination of the trial. He is not to be allowed to be let off on bail when he is not on
bail at the time he is tendered pardon.145
(ii) Release of accused on bail no ground not to detain approver.-The provisions
of section 306(4)(b), are of special nature and override the general provisions of bail
contained in section 439. Thus, an approver, if he is not on bail at the time of accepting
the tender of pardon shall be detained in custody until the termination of the trial.
Release on bail of the accused persons can hardly be taken as a valid ground to subvert
or circumvent the mandatory provision of section 306(4)(b).146
(iii) 'Trial in progress' implied.-Sub-section (4)(b) of section 306 contemplates only a
case where there has been a commitment made by the Magistrate to the court of
session. It omits to consider the case where the Magistrate himself on his own
responsibility discharges the accused person. The meaning of the sub-section is that the
approver shall not be set at large until the judicial proceedings pending against the
accused are finished. It is immaterial, for the purposes of the section whether the
proceedings are finished by a magisterial order of discharge before trial or by a Judge's
order of acquittal after trial. In the case of the magisterial discharge, the sub-section will
be satisfied if the approver is detained in custody or on bail until the order of discharge
is made.147
Sub-section (4)(b) implies that there is a trial in progress and its object is to secure the
evidence of the approver for such trial. If there is no such trial and no likelihood of such
a trial, the Magistrate has power to discharge the approver from custody.148
If there is no trial and no likelihood of such a trial, the inherent powers of the High Court
can, to prevent the abuse of the process of the court, be exercised in favour of a person
who has been in confinement for several months.149
(iv) Trial not to include appeal.-"Trial" in section 306(4)(b) does not include
proceedings in appeal. A court of session has no authority, after the conclusion of the

trial to order the detention of the approver, until the period of limitation for appeal
expires or until the appeal is heard and decided. Such an order is contrary to section
306(4)(b), and is, therefore, illegal.150
(v) No purpose in detention if approver's evidence already recorded.-Where the
approver's evidence has already been recorded, no useful purpose will be served in his
detention. The administration of justice is not in any manner likely to be affected by his
release. There is no reason to suppose that the machinery of law would not be able to
give protection to the approver in case any adventurism is sought to be displayed by his
confederates or their supporters.151
(vi) High Court may grant bail in exceptional cases.-According to section 306(4)
(b), the approver should be detained in custody till the termination of trial, if he is not
already on bail, at the same time, in exceptional and reasonable cases the High Court
has power under section 483, to enlarge him on bail or in case there are circumstances
to suggest that his detention had been so much prolonged, which would otherwise
outlive the period of sentence, if convicted, his detention can be declared to be illegal, as
violative of article 21 of the Constitution.152
(vii) Approver not to be detained in police custody.-As soon as a pardon is granted
to an approver with a view to obtaining his evidence, he becomes a witness qua the case
in which he is to be examined and continues to assume that role up to the time when his
failure to comply with the condition causes a forfeiture of the pardon. During that period
he is only a witness, though an infamous witness, and he cannot be viewed as an
accused. There is no provision of law, for detaining such an approver witness in police
custody.153 There is no difference as regards the nature of the custody in which he is to
be detained between an approver and an accused person. The nature of the custody
contemplated by law in the case of an accused person during the course of the enquiry
or trial is a judicial custody or confinement in prison and an approver must be kept in
similar custody and not in police custody.154 Speaking generally, the word 'custody' in the
Cr.P.C. always means judicial custody, save only where the context clearly indicates
either that it is police custody or that the Magistrate has been given liberty to decide
what the custody shall be. Hence the custody referred to in section 306(4)(b), must be
taken to be jail or judicial custody and not police custody and the detention of the
approver in police custody is illegal.155 The Magistrates have undoubted power to order
approvers to be confined in a central jail if that course is inevitable and is necessitated
by the police getting at the approvers in other jails and the impossibility of preventing
that. Where there is absolutely no material from which it would be inferred that the
police were exercising any unwholesome influence on the approvers lodged in a sub-jail,
they could not be ordered to be transferred to some other sub-jail or the central jail on
the ground of the mere possibility of the police getting at the approvers. A person kept
in a sub-jail is in judicial custody and not in police custody.156 An approver is not a
convicted prisoner but when his detention is ordered by a court of law under section
306(4)(b), he comes within the category of "criminal prisoner", as defined in section
3(2) of the Prisons Act and section 4 of that Act imposes upon the State Government the
duty of providing for prisoners, accommodation in prisons as ordained by that Act. 157
(viii) Detention of approver in custody not a condition of validity of pardon.-The
word "shall" in sub-section (4)(b) is primarily obligatory and it casts a duty on a court to
detain an accused, to whom pardon was tendered, in custody, until the termination of
the trial. But, it does not make such detention the condition of the validity of the pardon.
It is designed to achieve the object for which pardon is tendered and to see that it is not
frustrated. His release on bail in contravention of the sub-section is illegal and may be
liable to be set aside by a superior court, but does not touch the validity of the
pardon (obiter).158
(ix) Bail granted to accused ceases to be effective on termination of trial.-The
expression 'termination of the trial' occurring in section 306(4)(b) governs not only

'detention in custody' referred to in that sub-section but also the words 'unless he is
already on bail' in the same sub-section. Hence, the bail that is granted to the accused
in the criminal proceeding ceases to be effective on the termination of the sessions
trial.159
18. Revision.-The tendering of pardon by a Magistrate under section 306, is not
revisable by the High Court. Order declining to tender pardon under section 306, is
interlocutory order and hence revision of the same is not maintainable.160 Any
irregularities in the grant of the pardon can be urged at the trial.161 Where from the
record it did not appear that the Magistrate really applied his mind to the facts of the
case to come to the conclusion that the case justified grant of pardon to the accused,
the order granting pardon was set aside in revision.162
But now the Supreme Court has held that an order granting pardon is revisable.163
________________________________________________________
1. 22 Cut LT 351 : 1956 Cr LJ 909 : AIR 1956 Ori 129.
2. ILR (1937) 1 Cal 711 : AIR 1936 Cal 356 (361) : 40 CWN 876 (FB).
3. P. Eirajaddin v. State, 1971 Cr LJ 523 (SC).
4. 56 Cal 1023 (1030) ; 33 Cal 1353 ; ILR (1937) 1 Cal 711 : 59 Bom 355 : AIR 1935
Bom 186. (The powers under sections 337 and 494 ought to be exercised where
prosecution considers that the evidence of the accomplice is necessary. But the police
have no power to take upon themselves not to charge a person against whom they have
evidence, simply because they require him as a witness) ; AIR 1957 Mad 727.
5. ILR (1937) 1 Cal 711 : AIR 1936 Cal 356 (FB). See also ILR (1945) Nag 515 : AIR
1945 Nag 79 : 1944 NLJ 515 (It would be a wrong exercise of discretion to uses section
321).
6. (1938) 2 MLJ 780 : 65 IA 388 : ILR (1938) Lah 628 : AIR 1938 PC 266 (PC).
7. 61 Bom LR 591 : 1959 Cr LJ 1153 : ILR (1959) Bom 1088 : AIR 1959 Bom 437.
8. 1958 SCJ 668 : 1958 Cr LJ 698 : AIR 1958 SC 350.
9. 1963 (1) Cr LJ 547 (Mys).
10. In re, Deivendran, 1996 Cr LJ 2209 (Mad).
11. A. Deivendran v. State of Tamil Nadu, 1998 Cr LJ 814 (SC).
12. Madh BLR 1956 (Cri) 415 : 1957 Cr LJ 67.
13. 33 Cal 1353.
14. 10 CWN 847.
15. 5 CLJ 224.
16. Vipin Kumar v. Union of India, 2000 Cr LJ 1555.
17. Shankar v. State of M.P., 1997 Cr LJ 3876 (MP).
18. See 3 Bom HCR 59 ; 25 Mad 61 (FB) ; 1 Lah 102 ; 2 PLT 125.
19. (1960) SCJ 349 : AIR 1960 SC 360. (As section 5 of the Official Secrets Act read
with section 120-B of the I.P.C. does not fall within any of these categories, no pardon
can be tendered with respect to that offence) ; ILR (1938) Lah 628 : AIR 1938 PC 266 ;
ILR (1937) 1 Cal 711 (FB).

20. 63 IC 612.
21. ILR (1939) All 736 : AIR 1939 All 567.
22. 81 IC 881 (884) ; AIR 1933 Pesh 3 : 34 Cr LJ 212 (Jurisdiction is to be determined
not by the offence of which the accused is ultimately found guilty ; but by the charges
with which the trial started) ; ILR (1955) 1 Cal 248 ; AIR 1963 SC 1850 : 1963 (2) Cr LJ
671 (691). (The validity of a pardon is to be determined with reference to the offence
alleged against the approver alone and not with reference to the offence or offences of
which his associates were ultimately convicted).
23. AIR 1951 Assam 122 (2) : 52 Cr LJ 1222.
24. 9 SLR 43 : 16 Cr LJ 632, followed in 87 IC 965 : AIR 1925 Nag 409 ; 17 PR 1915
(Cri) 16.
25. 2 All 260 ; See also 1 Bom 610 and Rat 224 and 461. But see 45 All 226.
26. 5 SLR 174 ; 3 PR (Cri) 1897, followed in 3 Lah 431. (Where a pardon tendered by a
Magistrate duly empowered to an approver when the offence was under investigation of
the police, was held valid).
27. 88 IC 283 : AIR 1925 Nag 337 (338).
28. B. Lamba v. State, 1971 Cr LJ 1357 (All).
29. 1956 Cr LJ 1134 : AIR 1956 Ajmer 57.
30. 60 IC 607 : 22 Cr LJ 255.
31. 49 All 181.
32. P. Apparao v. State, 1967 Cr LJ 904 (Ori).
33. 1954 Cr LJ 148 : AIR 1953 Manipur 2.
34. M.V. Mahesh v. State, 1996 Cr LJ 771 ( Kar) (DB).
35. 23 Bom LR 839 : 46 Bom 120.
36. Lakshmandas Chaganlal Bhatia v. State, 1968 Cr LJ 1584 (Bom).
37. 24 Cr LJ 566 : AIR 1923 Nag 248.
38. ILR (1960) Punj 111 : 1960 Cr LJ 989 : AIR 1960 Punj 364 ; AIR 1964 Tri 41
(Admission of complicity in offence is not necessary).
39. (1962) 2 Cr LJ 672 (MP).
40. 5 SLR 174.
41. Santosh Saha v. State, 1973 Cr LJ 968 (Cal).
42. State v. Ramasi Devasi Bhal, 1991 Cr LJ 2801 (Guj).
43. 7 All 160. See also Rat 750.
44. 1958 Cr LJ 413 : 59 Punj LR 482 : AIR 1958 Punj 72.
45. Jagjit Singh v. State, 1986 Cr LJ 1658 (Del).
46. Rat 612.
47. Krishna Lal Gulati v. State, 1970 Cr LJ 1825 (All).
48. P. Sirajuddin v. Government of Madras, 1968 Cr LJ 493 (Mad) ; Tukram Rangrao

Waze v. State of Maharashtra, 1993 (2) Crimes 154 (Bom).

49. AIR 1952 HP 57, relied on 1963 (1) Cr LJ 547.
50. 2 PLT 125.
51. ILR (1944) Kant 97 : AIR 1944 Sind 184.
52. Lakshmandas Chhaganlal Bhatia v. State, 1968 Cr LJ 1584 (Bom).
53. 20 All 40.
54. Parmasivam Chettiar v. State, 1968 Cr LJ 1667 (Mad).
55. Randhir Basu v. State of West Bengal, 2000 Cr LJ 1417 (SC).
56. State of H.P. v. Surindra Mohan, 2000 Cr LJ 1429 (SC) : 2000 (1) Crimes 218 (SC).
57. 13 Cr LJ 588 : 15 IC 1004.
58. 36 Cal 629 : 13 CWN 757 ; 5 CLJ 224 ; 5 Lah LJ 407 ; 27 ALJ 227 : AIR 1929 All
321 ; AIR 1938 PC 266 (269) ; ILR (1944) Kant 97 : AIR 1944 Sind 184.
59. Prabhat Ranjan Sarkar v. State, 1974 Cr LJ 957 (Pat).
60. S. Raman v. State, 1979 Cr LJ (NOC) 185 (Kant).
61. ILR (1939) Lah 38 : 40 PLR 758 (2), See also (1938) 2 MLJ 780 : 65 IA 388 : AIR
1938 PC 266 (PC) : ILR (1944) Kant 97 : AIR 1944 Sind 184.
62. 9 Lah 608 : AIR 1928 Lah 320 (2).
63. AIR 1920 Lah 215 ; 9 Punj R 1906 ; 1 Bom 610, distinguished. AIR 1954 SC 616 :
1954 Cr LJ 1638, followed in 1957 Cr LJ 67 (MB). (Same principle will apply when
pardon is tendered under section 8(2) Criminal Law (Amendment) Act.
64. 22 Cr LJ 699 : 19 ALJ 717 ; 11 All 79 : 1888 AWN 289. (Not only will the offence
under trial for which pardon is granted but also many other offences relating to the
same transaction subsequently charged will be covered by that pardon). See also 2 Weir
394.
65. Hasmukhlal N. Vakilna v. Bhairavnath Singh, 1972 Cr LJ 560 (Guj).
66. 46 All 236 (FB).
67. ILR (1944) Kant 97 : AIR 1944 Sind 184.
68. ILR (1947) All 215 : AIR 1947 All 71.
69. ILR (1955) 1 Cal 248.
70. Suresh Chandra Bahri v. State, 1986 Cr LJ 1394 (Pat).
71. State of H.P. v. Surindra Mohan, 2000 Cr LJ 1429 (SC) : 2000 (1) Crimes 218 (SC).
72. Gagu v. State, 1975 Cr LJ 670 (Guj).
73. 11 Lah 230 (232) : AIR 1930 Lah 95.
74. 31 Punj LR 1010 : AIR 1931 Lah 102.
75. Shriyans Prasad Jain v. Shanti Prasad Jain, 1977 Cr LJ 1270 (Bom).
76. 1935 OWN 44 : AIR 1935 Ori 116 : AIR 1940 Sind 114 (Pardon cannot be forfeited
before approver is examined in sessions court ; Failure to examine approver in sessions
court vitiates trial) ; 1940 AMLJ 57 (Proper procedure is to send him up as a witness to

the sessions court irrespective of the evidence that he gives in committing court).
77. 1961 Raj LW 188 : 1961 (2) Cr LJ 789 : AIR 1961 Raj 274.
78. In re, Chinnappa, 1967 Cr LJ 1341 (Mad).
79. M.M. Kocher v. State, 1969 Cr LJ 45 (Del).
80. ILR (1957) Punj 1941 : 59 Punj LR 482 : AIR 1958 Punj 72.
81. Pappa Yammal v. Arumugham, 1979 Cr LJ 432 (Mad).
82. Uravakonda Vijayaraj Paul v. State, 1986 Cr LJ 2104 (AP).
83. V. Krishna Swami v. State, 1987 Cr LJ 1012 (Mad) : (1987) 1 Crimes 905.
84. In re, Chief Judicial Magistrate, Trivandrum, 1988 Cr LJ 812 (Ker) : (1987) 2 Crimes
647.
85. State v. Jagjit Singh, 1989 Cr LJ 986 (SC) : AIR 1989 SC 598 : (1989) 1 Crimes
343.
86. State v. Monu D. Surendran, 1991 Cr LJ 27 (Ker) : (1990) 1 Ker LT 53.
87. 11 Lah 230 : AIR 1930 Lah 95 ; AIR 1940 Sind 114 ; Abdul Hamid v. State, 1995
(2) Crimes 829 (Bom) ; Suresh Chandra Bahri v. State of Bihar, 1986 Cr LJ 1394 (Pat) :
1994 Cur Cri R (3) 636 (SC) ; Kalu Khoda v. State, 1962 AIR 283 (Guj).
88. State of Bihar v. Laxmi Paswan, 1993 (3) Crimes 212 (Pat) ; In re, Ramaswamy
1976 Cr LJ 770 (Mad) ; Uravokonda Vijayaraj Paul v. The State, 1986 Cr LJ 2104 ;
Muralidharan v. State, 1997 (1) Crimes 515 (Mad).
89. P. Apparao v. State, 1967 Cr LJ 904 (Ori).
90. State v. Bauri Bissoi, 1969 Cr LJ 1419 (Ori).
91. Inder Mohan v. State, 1972 Cr LJ 1569 (Del).
92. In re, Ramaswamy, 1976 Cr LJ 770 (Mad).
93. 9 Lah 608 : AIR 1928 Lah 320 (2).
94. 1963 (2) Cr LJ 671 : AIR 1963 SC 1850.
95. Shanker v. State of M.P., 1997 Cr LJ 3876 (MP).
96. Saravanathan v. State, 1966 Cr LJ 949 (SC) ; Ram Prasad v. State of Maharashtra,
1999 Cr LJ 2889 (SC).
97. Devi Prasad v. State, 1967 Cr LJ 134 (All).
98. AIR 1961 SC 1762 : 1961 (2) Cr LJ 828, explaining AIR 1957 SC 637 ; AIR 1963 SC
1850.
99. Lachhi Ram v.State, 1967 Cr LJ 671 (SC).
100. Chaddalavada Subba Rao v. Kalu Brahmananda Reddy, 1967 Cr LJ 691 (AP).
101. AIR 1957 SC 63 and AIR 1958 SC 500, relying on 1962 (2) Cr LJ 765 : AIR 1962
Mys 275.
102. AIR 1963 SC 599.
103. AIR 1957 SC 340 ; AIR 1956 Ajmer 57 (Statement of approver must be
corroborated by independent evidence connecting accused with offence).

104. Ram Deo v. State, 1966 Cr LJ 240 (Raj).

105. Subramaniam v. State, 1975 Cr LJ 226 (SC) : AIR 1975 SC 139 : (1975) 3 SCC
414 : (1975) 2 SCJ 311.
106. Sarbjit Singh v. State, 1970 Cr LJ 944 (P&H).
107. Tulugu Sova v. State, 1973 Cr LJ 1426 (Ori).
108. Krishnalal Naskar v. State, 1982 Cr LJ 1305 (Cal).
109. State v. Thomas Cherian, 1982 Cr LJ 2303 (Ker).
110. 1957 Cr LJ 32 : AIR 1957 All 53.
111. 33 Cr LJ 287 : AIR 1932 Oudh 11.
112. 33 Cr LJ 567 : 138 IC 223.
113. AIR 1951 Ori 53.
114. 49 Cr LJ 207 : AIR 1948 Sind 65.
115. 6 Luck 668 : AIR 1931 Oudh 172, following 38 Cal 96 : ILR (1949) Cut 585 ; ILR
(1951) Nag 930 : AIR 1952 Nag 58 ; ILR (1952) Bom 900 : AIR 1952 Bom 435 ; ILR
(1951) Mys 464 : AIR 1952 Mys 42 ; ILR (1952) Patiala 512 ; (1953) 2 MLJ 50.
116. 1953 Cr LJ 990 : AIR 1953 Bhopal 21.
117. 16 NLR 9 : 58 IC 449.
118. See 1 Lah 102. But see 21 PR (Cri) 1904, infra.
119. 54 Cal 539.
120. 25 Mad 61 : 10 MLJ 147 (FB) (Davies, J., Diss.).
121. 21 PR (Cri) 1904 : 135 PLR 1904.
122. 15 Bom 661.
123. Per Mears, C.J., in 45 All 226 (230). See also AIR 1932 All 73 : 33 Cr LJ 373.
124. 33 Cal 1353, See also 21 UBR (1906), p. 3.
125. (1957) Mad LJ (Cri) 215.
126. 86 IC 477 : AIR 1925 Rang 207 (1) ; ILR (1938) Lah 628 : 65 IA 388. (It is
immaterial that the Magistrate did not act suo motu in tendering the pardon but did so
after consulting the local Government and with its authority. That is an internal matter of
administration which cannot affect the position of the accused or the approver).
127. ILR (1955) 1 Cal 248.
128. 34 Cr LJ 212 : AIR 1933 Pesh 3.
129. 36 Bom LR 1211 : AIR 1935 Bom 70.
130. ILR (1942) Kant 69 : AIR 1942 Sind 100.
131. 1932 ALJ 754 : AIR 1932 All 581 ; 36 Bom LR 1211 : AIR 1935 Bom 70 ; 1942
OWN 811 : 44 Cr LJ 279.
132. 1961 (1) Cr LJ 496 (2) : AIR 1961 Guj 49.
133. 6 OWN 218 : AIR 1929 Oudh 190.

134. M.A. Merchant v. The State, 1995 (1) Crimes 453 (Del).
135. 60 Cal 652 : AIR 1933 Cal 537 ; (1944) 2 MLJ 156 : AIR 1944 Mad 503.
136. ILR (1937) 1 Cal 711 : AIR 1936 Cal 356 (FB).
137. 59 Punj LR 482 : 1958 Cr LJ 413 : AIR 1958 Punj 72.
138. AIR 1932 Sind 40 : 33 Cr LJ 906. See also 37 Bom 146 : 14 Bom LR 897.
139. AIR 1952 Mad 839 : (1952) 1 MLJ 286.
140. AIR 1952 Mad 833 : (1952) 1 MLJ 270 : AIR 1958 Punj 72 (Section 306 (4) (b) .
But see contra,
141. Per Rupchand Bilaram, A.J.C. (Per Percival, J.C., contra) ; 101 IC 471 : AIR 1927
Sind 173.
142. AIR 1958 Punj 72.
143. 59 Punj LR 482 : 1958 Cr LJ 413 : AIR 1958 Punj 72 ; AIR 1956 Bhopal 4. (Even if
the termination of the trial takes a long period, the approver will have to be detained in
custody).
144. State v. Babuli Narayan Behra, 1967 (2) Cr LJ 1543 (Ori).
145. Ayodhya Singh v. State, 1973 Cr LJ 768 (Raj).
146. Dev Kishan v. State, 1984 Cr LJ 1142 (Raj).
147. 37 Bom 146 : 14 Bom LR 897.
148. 23 Bom LR 839 (842) : 46 Bom 120.
149. AIR 1958 Punj 72 : 1958 Cr LJ 413.
150. 62 Cal 430 : AIR 1935 Cal 545.
151. Prem Chand v. State, 1985 Cr LJ 1534 (Del) : (1985) 1 Crimes 99.
152. Noor Taki v. State, 1986 Cr LJ 1488 (Raj).
153. 12 Lah 635 : AIR 1931 Lah 476, relied on in 32 PLR 728 : AIR 1931 Lah 480.
154. 12 Lah 604 : AIR 1931 Lah 353.
155. ILR (1943) All 289 : AIR 1943 All 93.
156. 64 LW 872 : (1951) 2 MLJ 421.
157. 12 Lah 635 : AIR 1931 Lah 476.
158. (1958) 1 An WR 9 : 1958 MLJ (Cri) 31 : AIR 1958 AP 165.
159. ILR (1956) Cut 615 : AIR 1957 Ori 51.
160. 1977 Cr LJ (NOC) 174 (AP).
161. (1947) 2 MLJ 388 : AIR 1948 Mad 232. But see, infra.
162. 1963 (1) Cr LJ 547 (Mys).
163. 1973 Cr LJ 1196 : AIR 1973 SC 2210.

P. Ramanatha Aiyar's Code of Criminal Procedure, Seventh Edition

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