This article is written by Richa Goel of Banasthali Vidyapith. In this article, the author had discussed the meaning of accomplice, provisions related to accomplice with the relevant case laws and with special reference to section 307 Crpc and Indian Evidence Act.

Accomplice is a witness to the crime, who is connected with the crime by any unlawful act or omission, with his active or inactive participation to the crime some way or the other and he/she admits his/her active involvement in the crime.

Section 133 of the Indian Evidence Act, 1872 talks about accomplice witness. According to it, an accomplice is a competent witness against an accused person. Usually, crimes are committed in sheltered or private places. In such cases, the police pick up one of the suspects, that have been arrested and who are least guilty and asks them to give all the information regarding the crime, how it was committed and offers him surety to be pardoned for the crime if he delivers true information.

“It was held in R.K. Dalmia V. Delhi administration[1] that an accomplice is a person who participates in the commission of the actual crime charged against the accused.”

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Categories of an accomplice

1.   Principal offender

The principal offender is the person who actually commits the crime or abets the crime.

2.    Before the fact

People, who abet, incite or procure for the commission of a crime and do not participate in the crime.

3.    After the fact

People who protect the persons who have committed the crime or help them to escape from the location. They are also considered as the participants of the crime.

According to Section 306 and Section 307 of the Criminal Procedural Code, an accomplice is a competent witness to the crime. According to Article 20(3) of the Constitution of India of the accused shall be compelled to act as a witness.

Principles to be followed for the grant of pardon are as follows-

• Trial must be initiated.
• Guilty shall not be proved.
• An accomplice shall agree to be approved, there must be an agreement to be an approver.
• The approver becomes the witness if the pardon is granted by the court.
• If he violates these terms, no pardon shall be granted.
• He shall not be released before the decision or order.

Grant of pardon under CrPC, 1973

Section 306: Tender of pardon to an accomplice.

Purpose

To obtain the evidence of the person who may be directly or indirectly related to the offence

Competency

Authorities under this section are empowered to tender a pardon.

• A chief judicial magistrate or the metropolitan magistrate.
• Judicial magistrate first class.

Applicability

• Any offence which is triable by Court of Special Judge under the Criminal Amendment Act, 1952 or by Session Court.
• An offence which is punishable with the imprisonment extending to 7 years or more severe sentence.

Conditions

To make a valid and full disclosure of the whole of the circumstances within his knowledge related to the offence and to give information regarding the person whether as the abettor or the principal who is related to the offence.

Duties of Magistrate

It is the duty of every Magistrate to record

• The reason for doing so.
• Whether the person to whom tender was made has accepted it or not.
• To furnish the copy of record free of cost to the accused.

A person accepting a tender shall be examined in Court of the Magistrate taking the cognisance of an offence as the witness. He is detained in custody until the disposal of the trial or unless he is already on bail.

Final Stage

When the person to whom tender was made had accepted the bid of pardon and has been examined as the witness in the court by taking the cognisance of an offence shall without any further inquiry in the case.

Send it for a trial as per the following scenarios.

• If the offence is triable by Court of the session or if the Magistrate who is taking the cognisance of offence is Chief Judicial Magistrate or to the Session Court.
• If the offence is triable by Special Judge appointed under the Criminal Amendment Act, 1952 or to the special judge.
• In another case to make over the case to Chief Judicial Magistrate who shall try the case himself.

Offences

Section 306 talks about the offences for which pardon can be granted. It says that the offences punishable with imprisonment extending to seven or more years are covered under this section.

Stage

Pardon to accomplice can be tendered at any juncture before the pronouncement of the judgement.

In the case of Dipesh Chandal vs Union of India[2]

The Court stated that the accused cannot claim the immunity from the prosecution for any offence which is of economic nature.

In the case of Konajeti Rajababu vs the State of A.P[3]

The court held that the divisional court has a jurisdiction to determine whether the Magistrate who has tender a pardon has acted judiciously or not.

Section 307- Power to direct tender to pardon

At any time after the commitment of the case, but before the judgement is passed, the court to which matter is committed may with the view to obtain the evidence of any person who may be directly or indirectly related to an offence or privy to an offence, tender a pardon on the same condition to such person.

In the case of K.Anil Agarwal vs the State of Kerala[4]

The High court of Kerala stated that a statement recorded under section 164 of Cr.P.C  cannot be the condition for granting a pardon and the Session Court can tender a pardon under section

306(1) on the same conditions as specified in Section 306(1).

In the case of Lt Commander Pascal Fernades vs the State of Maharashtra[5]

The Supreme Court held that generally, it is prosecution who asked for the tendering to pardon but in the case when the accused applies directly to the Special Judges, he must first send the request to the prosecuting agency.

Competency

Authorities who can exercise power is mentioned under section 307. The following magistrates can confer the power given by the code,

✔    The chief judicial magistrate or the metropolitan magistrate.

✔    Judicial magistrate first class.

✔    Session Court

✔    Special judge

Persons

The qualification for becoming an approver under both of these sections is one, and the same and moreover can be tendered under the same conditions.

Only those persons who have committed certain specified offences can only receive a pardon from the court and there shall be a true and full confession of the crime by the approver to be able to get the pardon. The accomplice who has more charges of crime on him or has such past records of various commitments of heinous crimes then he cannot be pardoned by the court.

The person with lessor participation in the crime may be tendered pardon by the court, to punish the main culprits. The person shall make full and valid disclosure of the facts and circumstances of the crime within his knowledge to get tender to pardon by the court.

Difference between section 306 and 307

In the case of Narayan Chetanram Chaudhary vs the State of Maharashtra[6]

The Supreme Court held that section 306 is invokable at the pre-committal stage whereas section 306 is invokable at the post-committal stage. The court further stated that the trial court in granting a pardon under Section 306 need to comply with the requirement of section 306(1) but not with Section 306(4).

Section 308-Trial of the person when not complying the conditions of pardon.

Consequences when person accepting a tender fails to fulfil the requirement of pardon

When the public prosecutor believes or has the reason to believe that the person who has accepted the tender or to whom pardon has been tendered  does not fulfil the conditions of the pardon such person may try for the same offence for which he was charged or for many another crime for which he is guilty in connection with the same matter.

The person can also be charged for false evidence. He cannot be charged for the false evidence unless the permission of the High Court is taken. The provision of section 195 and 340 will not apply in this case.

Any statement which is given by the person and recorded by the Magistrate under section 164 or the Court under section 306(4) may be used as the evidence against him in such trial.

During the trial, the person accepting the tender needs to prove that he has complied with the conditions of the Pardon and the burden is on the prosecution to prove that the person accepting the tender cannot fulfil the requirements of granting a pardon.

At such trial, the court shall

• Before  charge is read out and explained to the accused or if it is the Court of Session
• Before the evidence of the witness of, the prosecution is taken down or  if it is a Court of Magistrate

Ask the accused whether he accepts it that he has complied with the conditions of the pardon.

When the accused accept that he has complied with the conditions of the pardon, the court shall accept it and record the statement and proceed with the trial.

And in the case when the judgement is not passed finds that whether the accused has fulfilled the conditions and if it is found that he has complied with the requirements, pass the order of acquittal.

In the case of State vs  Bhoora & Ors[7]

The court held that if one accused fails to comply with the conditions of the granting he cannot be tried with the other accused, but he can be the witness against the other accused and he does not cease to be the witness against other accused even when he has withdrawal his evidence.

There will be no question of pardon, if accused has violated the terms, was observed by the court in the case of  State V.  Hiralal Girdharilal Kothari [8]. The court, in the case of Karuppa Servai V. Kundaru[9]  held that pardon can be granted to the approver, based on the principles of public policy and public interest.

Importance of section 114 and 133 of Indian Evidence Act

These two provisions deal with the same subject. Section 114 of the Evidence Act says that the accomplice is presumed to be unworthy of credit by the court unless corroborated in material particulars.

Section 133 of the Indian Evidence Act says that accomplice shall be treated as a competent witness against the accused person.

When section 133 of the evidence act is read along with section 114(b), we find the most essential issue with relation to accomplice evidence is that of corroboration. The general rule regarding corroboration is not the rule of law but is merely a rule of practice which is followed in both India and England.

Accomplice evidence shall be corroborated for the following reasons.

• There are chances that accomplice may swear falsely to shift the guilt from himself.
• An accomplice is an immoral person as he is involved in the crime.
• Accomplice only discloses the fact in the greed and hope of getting a pardon from the punishment.

The power to tender pardon is subject to so many conditions which are specified by the code, and some are prescribed by the judges.

Conclusion

The pardon to an accomplice is the concept where the information regarding the severe offence can be found out. It is tendered only in cases of the serious offences, and the court has been applying its judicial mind to see whether the accused should be granted a pardon or not.

References

1)1963 SCR (1) 253

2)17 September, 2004

3) 2002 CriLJ 2990

4) 1996 CriLJ 1942

5)1968 SCR (1) 695

6)5 September, 2000

7)AIR 1961 RAJ 274

8)AIR 1960 SC 360

9) 1953 Crl.L.J. 45