Tender of pardon to accomplice :
Section – 306. (1) With a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in or privy to an offence to which this section applies, the Chief Judicial Magistrate or a Metropolitan Magistrate at any stage of the investigation or inquiry into, or the trial of, the offence, and the Magistrate of the first class inquiring into or trying the offence, at any stage of the inquiry or trial, may tender a pardon to such person on condition of his making a full and true disclosure of the whole of the circumstances within his knowledge relative to the offence and to every other person concerned, whether as principal or abettor, in the commission thereof.
(2) This section applies to—
| (a) | Â | any offence triable exclusively by the Court of Session or by the Court of a Special Judge appointed under the Criminal Law Amendment Act, 1952 (46 of 1952); |
| (b) | Â | any offence punishable with imprisonment which may extend to seven years or with a more severe sentence. |
(3) Every Magistrate who tenders a pardon under sub-section (1) shall record—
| (a) | Â | his reasons for so doing; |
| (b) | Â | whether the tender was or was not accepted by the person to whom it was made, |
and shall, on application made by the accused, furnish him with a copy of such record free of cost.
(4) Every person accepting a tender of pardon made under sub-section (1)—
| (a) | Â | shall be examined as a witness in the Court of the Magistrate taking cognizance of the offence and in the subsequent trial, if any; |
| (b) | Â | shall, unless he is already on bail, be detained in custody until the termination of the trial. |
(5) Where a person has accepted a tender of pardon made under sub-section (1) and has been examined under sub-section (4), the Magistrate taking cognizance of the offence shall, without making any further inquiry in the case,—
| (a) |  | commit it for trial— |
| (i) | Â | to the Court of Session if the offence is triable exclusively by th |
| (ii) | Â | to a Court of Special Judge appointed under the Criminal Law Amendment Act, 1952 (46 of 1952), if the offence is triable exclusively by that Court; |
| (b) | Â | in any other case, make over the case to the Chief Judicial Magistrate who shall try the case himself. |
COMMENTS
LAW COMMISSION REPORTS
This section corresponds to section 337 of the old Code.
While examining the old section 337, the Law Commission in its 41st Report, analysed the provisions thereof as under :
“Section 337 deals with the tender of pardon to an accomplice. Sub-section (1), which is the main provision and a lengthy and complicate one, lays down (i) the offences in respect of which pardon can be tendered; (ii) the courts which can tender pardon; and (iii) the stage at which pardon can be tendered.”
GENERAL
Analysis of old provision
| a. | Â | The offences in respect of which the power can be exercised fall in three groups, namely : |
| i. | Â | any offence triable exclusively by the High Court or Court of Session; |
| ii. | Â | any offence punishable with imprisonment which may extend to seven year; and |
| iii. | Â | any of the offences under eight specified sections of the Indian Penal Code. |
| b. | Â | The Magistrates who can tender pardon are District Magistrates, Presidency Magistrates, Sub-Divisional Magistrates and Magistrates of the first class. |
| c. | Â | Pardon can be tendered at any stage of (a) investigation into the offence; (b) inquiry into the offence; or (c) trial of the offence. |
Under the proviso, however, where the offence is under inquiry or trial, no Magistrate of the first class other than the District Magistrate, can exercise the power unless he is the inquiring or trying Magistrate, and where the offence is under investigation no such Magistrate can exercise this power unless he has jurisdiction in the place where the offence might be inquired into or tried and sanction of the District Magistrate has been obtained. In other words, while the power of the District Magistrate is unlimited as regards the stage at which pardon can be tendered, any other first class Magistrate can tender pardon—
| a. | Â | during investigation, only if he has territorial jurisdiction in regard to the offence and the sanction of the District Magistrate has been obtained, and |
| b. | Â | during inquiry or trial, only if he is the inquiring or trying Magistrate. |
Section applicable to offences punishable with 7 years or more – The question whether an offence under section 409 of the Indian Penal Code, which is punishable with imprisonment for life or with imprisonment which may extend to 10 years and is triable by a Court of Session, a Presidency Magistrate or a Magistrate of the first class, was an offence in respect of which pardon could be tendered under section 337 (as it stood before the amendment of 1955), was raised before the Supreme Court in the case of State of AP v. Cheemalapati Ganeswara Rao AIR 1963 SC 1850. The Court held that, since the alternative punishment for the offence under the said section was imprisonment which may extend to 10 years, and since section 337 did not expressly say that the only punishment should be imprisonment which may extend to 7 years, the case was covered by section 337. Nonetheless the expression “any offence punishable with imprisonment which may extend to seven years” contained an ambiguity. Accordingly, on the recommendation of the Law Commission, the words “or with a more severe sentence” have been added so as to include offences for which the maximum term of imprisonment prescribed in the Penal Code or other law is more than 7 years or imprisonment for life.
Section applies to offences triable by the court of a Special Judge – The new section also brings within its scope all offences which are triable exclusively by the court of a Special Judge appointed under the Criminal Law Amendment Act, 1952.
Magistrates competent to tender pardon – The Magistrates competent to tender pardon under the new section are :
| a. | Â | Chief Judicial Magistrate or Metropolitan Magistrate, at any stage of the investigation, inquiry or trial, and |
| b. | Â | Judicial Magistrate of the first class inquiring into or trying the offence, at any stage of the inquiry or trial. |
Reasons for tendering pardon, etc., to be recorded – It has also been provided that a clear record of not only the reasons for tendering pardon but also of the fact whether the tender was accepted or not would have to be kept. Now the accused will not have to pay for a copy of the record. It would be supplied to him on an application free of cost.
Approver’s case also to be committed – Under the new section, the Magistrate has not to scrutinise the evidence of the approver and that of the other witnesses produced by the prosecution. Even approver’s case is required to be committed to the Court of Session if the offence is triable exclusively by that court or if the Magistrate taking cognizance is the Chief Judicial Magistrate, to a court of Special Judge appointed under the Criminal Law Amendment Act, 1952, if the offence is triable exclusively by that court, and in any other case, the Magistrate taking cognizance has to make over the case to the Chief Judicial Magistrate who is required to try the case himself.