When an Accused Turns Approver Under Section 306 CrPC, Can Co-Accused Demand a Hearing?

In multi-accused criminal cases, prosecutions often rely on one of the accused turning hostile to his own co-conspirators. The law permits this through the mechanism of tender of pardon under the Code of Criminal Procedure, 1973. A recurring question then arises: is it mandatory to give an opportunity to the co-accused when another accused wants to be made an approver? The short answer, supported by consistent judicial precedent, is no — but the position comes with important safeguards that co-accused persons should understand.

The Core Rule: Pardon Is a Matter Between the Court and the Applicant

At the stage of investigation or inquiry, when an accused applies for pardon and the prosecution supports the application, the proceeding is essentially bilateral. Courts have repeatedly held that the other accused have no right whatsoever to intervene or ask for a hearing2001 0 Supreme(Del) 776. Similarly, it is settled law, as laid down in Faqir Singh vs. Emperor and M.M. Kochar vs. State, that co-accused cannot question the act of granting pardon by the Court to one of the accused, as that is an internal matter of administration2010 0 Supreme(Guj) 346.

Why does the law take this position? Several reasons emerge from the case law:

• Tendering pardon is a judicial function, but its purpose is investigative — to secure the testimony of a person privy to the offence so that graver crimes do not go unpunished.
• The co-accused's real protection lies later, at trial, where they can test the approver's credibility.
• Allowing objections at the pardon stage would, in practice, let every co-accused stall the state's evidence-gathering process.

A coordinate bench ruling in the CBI v. N.K. Amin line of cases captured this neatly: the objection of other co-accused is not required to be considered nor they have any role to play when the Magistrate considers grant of pardon after hearing the applicant and the prosecution 2021 0 Supreme(Guj) 397.

Where the Co-Accused's Real Protection Lies: Cross-Examination at Trial

The right to challenge an approver does not vanish — it is deferred. The accused against whom the approver's evidence is likely to be used shall have sufficient opportunity to cross-examine the approver when examined in the course of trial and demonstrate that his evidence is unreliable or that he is not a trustworthy witness 2001 0 Supreme(Del) 776. Because the approver, once pardoned, ceases to be an accused and becomes a prosecution witness, cross-examination is the legally sanctioned forum for testing his testimony.

The Supreme Court reinforced this in Ranadhir Basu's case, holding that it is not necessary to give the accused an opportunity to cross-examine the approver when he is examined by the Magistrate. The object of Section 306(4) is to provide the accused an opportunity to show at trial that the approver's evidence is untrustworthy in view of contradictions or improvements made by him 2006 0 Supreme(Bom) 296.

The Court Is Not a Mute Spectator

Although co-accused have no participatory right at the pardon stage, the discretion is not uncontrolled. The court must remain alert and, keeping in mind the interest of co-accused persons, at least consider that the prosecution is not unduly favouring the person seeking pardon, at the cost of the co-accused2018 0 Supreme(P&H) 4220. This reflects a practical concern flagged in the case law: an applicant ready to betray his co-accused could easily dupe the Court and thrust his guilt upon others in order to prove himself innocent 2018 0 Supreme(All) 786.

To check such abuse, courts must satisfy themselves that the applicant was actually privy to the offence and that the pardon serves investigative necessity. A pardon granted mechanically, without application of mind, may be set aside in appropriate proceedings — though this is judicial review of the court's order, not a right of the co-accused to participate in the process.

Mandatory Procedural Requirements That Do Benefit the Accused

While the co-accused cannot be heard at the pardon stage, Section 306 itself contains mandatory safeguards:

1. Examination before committal: Under Section 306(4)(a), an accused tendered pardon must be mandatorily examined before the case is committed to the Sessions Court. Failure to do so is illegal, and committal orders passed in breach have been set aside in revision 2023 0 Supreme(Ker) 614 and 2023 0 Supreme(Ker) 488.
2. Two-stage examination as a safeguard: The examination of the approver at two stages is a mandatory provision intended to provide a safeguard to the accused, since the approver must disclose his evidence at the preliminary stage before committal 2023 0 Supreme(Chh) 453.
3. Timing matters: If pardon is tendered after commitment, under Section 307 of the Cr.P.C., the requirements of Section 306(4) are not attracted 2022 0 Supreme(Guj) 1373.
4. Custody and liberty: Section 306(4)(b) detention has been treated as directory rather than mandatory, and High Courts have used inherent powers to grant bail to approvers who comply with pardon conditions, protecting rights under Article 21 2023 Supreme(Online)(J&K) 686.

Challenging the Approver After Pardon Is Granted

Once pardon is accepted, the approver's status changes entirely — he becomes a prosecution witness whose testimony must be corroborated and tested. If the prosecution itself loses confidence in the approver and treats him once again as a key accused, charges cannot rest solely on a discredited approver's statements 2025 0 Supreme(Ker) 1447. And if an approver resiles from his promise, Section 308 Cr.P.C. provides the remedy: the pardon may be recalled and the person may be tried not only for the original offence but also for giving false evidence 2018 0 Supreme(All) 786.

For co-accused persons, the practical strategy is therefore clear:

• Do not attempt to block the pardon at the pre-trial stage — the law does not recognize such a right.
• Reserve challenges for trial, where rigorous cross-examination can expose contradictions, improvements, or untrustworthiness in the approver's testimony.
• Use revisional or appellate remedies if the pardon order itself was passed without jurisdiction or without any application of mind.

Key Takeaways

• It is not mandatory to hear co-accused when another accused applies to be tendered pardon; the matter lies between the court and the applicant 2001 0 Supreme(Del) 776 and 2010 0 Supreme(Guj) 346.
• The co-accused's remedy is cross-examination of the approver at trial, not participation in the pardon proceedings 2006 0 Supreme(Bom) 296.
• Courts must nonetheless ensure the pardon is not being used to unduly favour the applicant at the cost of co-accused 2018 0 Supreme(P&H) 4220.
• Mandatory requirements — such as examination of the approver under Section 306(4)(a) before committal — exist precisely to protect accused persons, and their breach can vitiate proceedings 2023 0 Supreme(Ker) 614.

This article provides general legal information based on reported precedents and does not constitute advice on any specific case; outcomes may vary with the facts and the stage of proceedings.