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When Tender of Pardon is Illegal for Want of Explanation by the Accused

In criminal trials, the tender of pardon to an accomplice under Sections 306 and 307 of the Code of Criminal Procedure, 1973 (CrPC) is a powerful tool. It incentivizes the accomplice—known as an approver—to turn state's evidence by promising immunity in exchange for a full and true disclosure of the crime. However, this process is strictly regulated, and courts have repeatedly held that a tender of pardon can be deemed illegal if procedural safeguards are ignored, including requirements related to the accused's explanation or compliance. This post examines key judicial interpretations, drawing from landmark cases, to clarify when such tenders fail legally.

Understanding Tender of Pardon Under CrPC

Section 306 CrPC empowers Magistrates to tender pardon during investigation, inquiry, or trial for serious offenses triable by the Court of Sessions. Post-commitment, Section 307 vests this power in the Sessions Court. The core condition? The approver must make a full and true disclosure of the whole of the circumstances within his knowledge relative to the offence Suresh Chandra Bahri: Gurbachan Singh: Raj Pal Sharma VS State Of Bihar - 1994 Supreme(SC) 629.

Failure to comply triggers Section 308, where the court must ask the accused (approver) whether he pleads that he has complied with the conditions State of Maharashtra VS Abu Salem Abdul Kayyum Ansari - 2010 7 Supreme 226. A Public Prosecutor's certificate of non-compliance can lead to forfeiture of pardon, reverting the approver to accused status A. R. Antulay VS R. S. Nayak - 1988 Supreme(SC) 337.

Key Procedural Requirements

• Examination as Witness: Under Section 306(4)(a), the approver must be examined before the committing Magistrate and in the trial court Suresh Chandra Bahri: Gurbachan Singh: Raj Pal Sharma VS State Of Bihar - 1994 Supreme(SC) 629.


• Custody Mandate: Unless already on bail, the approver remains in custody until trial ends (Section 306(4)(b)) Samsher Singh: Ishwar Chand Agarwal VS State Of Punjab - 1974 Supreme(SC) 257.


• Competent Authority: Post-commitment, only the Sessions Court can tender pardon; a Chief Judicial Magistrate lacks jurisdiction Suresh Chandra Bahri: Gurbachan Singh: Raj Pal Sharma VS State Of Bihar - 1994 Supreme(SC) 629 A. Deivendran through Supreme Court Legal Services Committee etc. VS State of Tamil Nadu through the Secretary, Department of Home, Fort St. George, Madras - 1997 9 Supreme 237.

Non-compliance renders the pardon illegal, vitiating proceedings Suresh Chandra Bahri: Gurbachan Singh: Raj Pal Sharma VS State Of Bihar - 1994 Supreme(SC) 629.

When is Tender of Pardon Deemed Illegal?

Courts have invalidated pardons for jurisdictional lapses, procedural violations, or lack of explanation/compliance by the accused. Here's a breakdown:

1. Jurisdictional Defects

A pardon by an incompetent court post-commitment is patently illegal. In a dacoity-murder case, the Supreme Court held: Once a case is committed to the Court of Sessions then it is only that Court... can tender pardon... Chief Judicial Magistrate cannot have concurrent jurisdiction Suresh Chandra Bahri: Gurbachan Singh: Raj Pal Sharma VS State Of Bihar - 1994 Supreme(SC) 629. Such irregularities aren't curable under Section 465 CrPC, as they involve total lack of jurisdiction Suresh Chandra Bahri: Gurbachan Singh: Raj Pal Sharma VS State Of Bihar - 1994 Supreme(SC) 629.

2. Non-Examination of Approver

Mandatory examination under Section 306(4)(a) ensures early disclosure. Failure vitiates committal: Non-compliance... would vitiate the proceeding Suresh Chandra Bahri: Gurbachan Singh: Raj Pal Sharma VS State Of Bihar - 1994 Supreme(SC) 629. If tendered post-commitment under Section 307, Section 306(4)(a) isn't strictly required, but the trial court must record the statement Narayan Chetanram Chaudhary VS State Of Maharashtra - 2000 6 Supreme 146.

3. Want of Explanation or Non-Compliance

The query's crux: Tender of pardon becomes ineffective or illegal sans accused's explanation. Section 308 mandates: At such trial, the Court shall ask the accused whether he pleads that he has complied with the conditions on which the tender of pardon was made State of Maharashtra VS Abu Salem Abdul Kayyum Ansari - 2010 7 Supreme 226. Without this, or if the Public Prosecutor certifies non-compliance (e.g., suppressing material facts), pardon is forfeited A. R. Antulay VS R. S. Nayak - 1988 Supreme(SC) 337.

In State of Gujarat v. Katara, non-compliance led to the approver's evidence being discarded as inadmissible State of Mysore v. Gundappa Honnappa Gowda H. - 1972 Supreme(Online)(Kar) 5. Courts emphasize: The law mandates the satisfaction of the Court granting pardon, that the accused would make a full and true disclosure Narayan Chetanram Chaudhary VS State Of Maharashtra - 2000 6 Supreme 146.

Bullet Points on Forfeiture Triggers

• Suppression of material facts.


• False testimony or refusal to disclose.


• No plea of compliance when queried under Section 308.


• Public Prosecutor's adverse certificate State of Maharashtra VS Abu Salem Abdul Kayyum Ansari - 2010 7 Supreme 226.

4. Evidence of Approver: Corroboration Imperative

Even valid pardons yield tainted evidence. Section 133, Evidence Act deems accomplices competent, but Illustration (b) to Section 114 presumes unworthiness without material corroboration Suresh Chandra Bahri: Gurbachan Singh: Raj Pal Sharma VS State Of Bihar - 1994 Supreme(SC) 629. Corroboration... must be independent and not vague Narayan Chetanram Chaudhary VS State Of Maharashtra - 2000 6 Supreme 146.

In Rajiv Gandhi assassination cases, approver evidence was scrutinized rigorously, requiring substantive corroboration State Through Superintendent Of Police, Cbi/sit VS Nalini - 1999 5 Supreme 60.

Landmark Cases Illustrating Illegality

A.R. Antulay Case (1986)

While primarily on transfers, it underscores procedural sanctity: Directions per incuriam violating statutes (like exclusive Special Judge jurisdiction) are void, akin to flawed pardons A. R. Antulay VS R. S. Nayak - 1988 Supreme(SC) 337.

Suresh Bahri v. State (1994)

The examination... is a mandatory provision and cannot be dispensed with... vitiates the trial Suresh Chandra Bahri: Gurbachan Singh: Raj Pal Sharma VS State Of Bihar - 1994 Supreme(SC) 629. Pardon without pre-committal examination was illegal.

Narayan Chetanram Chaudhary (2000)

Post-commitment pardons under Section 307 needn't strictly follow Section 306(4), but full disclosure is non-negotiable Narayan Chetanram Chaudhary VS State Of Maharashtra - 2000 6 Supreme 146.

Recent Trends: Bail and Protection

Approvers aren't perpetual detainees. Courts balance Section 306(4)(b) with Article 21: Grant of bail... detaining applicant for indefinite period... unfair Danish Ali Jamaluddin Ahmed VS State of Maharashtra Through DCB CID. High Courts invoke Section 482 for release post-testimony Amit Chakraborty vs State NCT Of Delhi - 2024 Supreme(Online)(DEL) 11671.

Implications for Accused and Prosecution

• For Prosecution: Risk trial collapse if pardon invalidated. Must ensure jurisdiction, examination, and certification.


• For Accused: Challenge via revision (Section 397/401). Approver evidence demands corroboration; uncorroborated testimony rarely suffices.


• For Approver: Forfeiture reverts them to accused; evidence becomes inadmissible against co-accused State of Maharashtra VS Abu Salem Abdul Kayyum Ansari - 2010 7 Supreme 226.

Practical Tips

• Challenge Early: File revision against illegal tender.


• Demand Compliance Query: Insist on Section 308 plea.


• Corroboration Test: Always highlight lack thereof.

Key Takeaways

• Tender of pardon is illegal if by wrong court, sans examination, or without accused's compliance explanation.


• Full disclosure is sine qua non; non-compliance forfeits immunity Narayan Chetanram Chaudhary VS State Of Maharashtra - 2000 6 Supreme 146.


• Approver evidence needs material corroboration—direct or circumstantial Suresh Chandra Bahri: Gurbachan Singh: Raj Pal Sharma VS State Of Bihar - 1994 Supreme(SC) 629.


• Courts prioritize procedure to prevent miscarriage of justice.

In most cases, procedural lapses render pardons void ab initio, protecting fair trial rights. Legal outcomes vary by facts; consult a lawyer for case-specific guidance.

Disclaimer: This post provides general information based on judicial precedents. It is not legal advice. Laws and interpretations evolve; seek professional counsel for your situation.