When can the court grant pardon to a co-accused? Can it subsequently be withdrawn?

Question: When can the court grant pardon to a co-accused? Can it subsequently be withdrawn?

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Answer

The aim of the Court in granting pardon to an accused is only to obtain his evidence as a witness. The tender of a pardon does not prevent the prosecution from proceeding against an approver as an accused where he has not performed the conditions of the pardon. A person who has been granted a pardon must be released if he has fulfilled the conditions of the pardon.

The application of an approver’s evidence has to satisfy a double test; his evidence must show that he is a reliable witness and that test is common to all. The second test of the approver’s evidence is that it must be sufficiently corroborated.

The approver must make a full and true disclosure before the committing Magistrate as well as before the Sessions Court. As held in the case of Emperor v. Kothia, (1906) 30 Bom 611 Bom LR 740, after making the complete disclosure before the Magistrate, the co-accused/approver cannot withdraw it after making it once.

The provisions of this section presuppose that the pardon which was tendered to a person was accepted by him. A mere tender of pardon does not attract the provision. This section does not apply where a pardon, though tender, is not accepted. The person who has accepted pardon must be examined as a witness. Other co-accused persons cannot tell the Court that the statement of the person seeking pardon was false and therefore pardon should not be granted.

Ordinarily, it is for the prosecution to ask that a particular accused out of several may be tendered pardon. But the accused can also directly apply to the Court for a grant of pardon. In that case, the Court must first refer the request of the accused to the prosecuting agency and ask for a statement on the request of the accused. The prosecution would agree to the tender of a pardon if it considers it to be in the interest of the successful prosecution of the other offenders. [Konajeti Rajababu v. State of AP, 2002 Cr LJ 2990 (AP)]

The approver by accepting the conditional pardon does not cease to be an accused person until he fulfills his undertaking of full and true disclosure and secures his discharge; therefore, he, like the other accused persons, is to be detained in custody. Thus, the order of granting a pardon can be subsequently withdrawn by the court if the conditions remain unfulfilled by the accused.

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