Report No. 41
24.21. Section 337(3).-
Under su.-section (3), an approver, unless he is already on bail, has to be detained in custody until the termination of the trial. The trying Magistrate or Sessions Court has no power to release the approver on bail. Though this may seem harsh, particularly where the trial is prolonged, we do not think the provision should be changed. In extraordinary cases of hardship, the approver can approach the High Court whose powers as to bail are very wide.
It is fairly clear that the words "unless he is on bail" do not prevent a Court from cancelling the bail previously granted to an approver and the general provisions as to cancellation or modification of bail apply to an approver as they apply to the accused persons under trial.
24.22. Revised section recommended.-
We recommend that section 337 may be revised as follows.-
"337. Tender of pardon to accomplice.- (1) With a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in or privy to any 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 a 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 t.-
(a) 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; and
(b) 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 su.-section (1) shall recor.-
(a) his reasons for so doing, and
(b) 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 su.-section (1)
(a) 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) 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 su.-section (4), the Magistrate taking cognizance of the offence shall, without making any further inquiry in the case, commit it for tria.-
(a) where the offence is triable exclusively by the Court of a Special Judge appointed under the Criminal Law Amendment Act, 1952, to that Court.
(b) in any other case, to the Court of Session.
24.23. Section 338.-
Under section 338, the Court of Session may at any time after commitment of the case, but before passing judgment, either tender pardon itself, or may "order the committing Magistrate or the District Magistrate" to tender pardon. Though this power is rarely resorted to by a Court of Session, it will be useful to retain the section. But in view of the abolition of commitment proceedings, the Court of Session need not be authorised to direct "the committing Magistrate" or any other Magistrate to tender pardon. The section may be revised to read as follows.-
"338. Power of court of session to tender pardon.- At any time after commitment of a case but before judgment is passed, the Court of Session may, with the view to obtaining at the trial the evidence of any person supposed to have been directly or indirectly concerned in or privy to, any such offence, tender a pardon on the same condition to such person".
24.24. Sections 339 and 339.-Introductory.-
Sections 339 and 339A lay down the procedure for prosecuting a person who, after accepting a pardon tendered under section 337 or 338, fails to comply with the condition on which the tender was made. Section 339 as originally enacted was found to be sketchy and unsatisfactory in many respects and was, therefore, amended, and amplified by the addition of section 339A, by the Amending Act of 1923. A certificate by the Public Prosecutor that the approver has, either by wilfully concealing anything essential or by giving false evidence, broken the condition of his pardon, is an essential requisite for prosecuting him for the offence in respect of which the pardon was tendered or for any other offence of which he appears to have been guilty in connection with the same matter.
24.25. Prosecution for perjury and public prosecutor's certificate.-
It is by no means clear whether the offence of giving false evidence is covered by the underlined words. This offence which the approver might have committed, either during his examination as a witness by the Magistrate or during his examination by the Sessions Judge, could hardly be said to be an offence committed "in connection with the same matter" as the original offence. But in an Oudh case1, where sanction of the High Court under su.-section (3) of section 339 was asked for by the Sessions Judge who had forwarded the papers to the High Court, it was held that sanction for the prosecution could be granted only if a certificate from the Public Prosecutor under su.-section (1y was produced.
1. Emperor v. Ghasitey, AIR 1929 Oudh 527.
24.26. When prosecution for perjury should be launched.-
In a Nagpur case1, the approver accepted the tender of pardon and was immediately examined as a witness, but denied that he knew anything about the murder. At a subsequent examination he gave an account of the murder which agreed with the account given by the prosecution, but a few lays later, he again denied all knowledge and swore that his previous statement was false and given at the instance of the Police Inspector. After the sessions trial had ended in the conviction of two persons for murder, the Public Prosecutor gave his certificate under section 339(1) to enable the approver to be tried for the offence of murder or for any other offence committed by him in connection with the same matter. When, without prosecuting him for any such offence, the Local Government applied under section 339(3) for the sanction of the High Court to prosecute him for perjury, the Court observed.-
"The reasons for which a High Court should grant or refuse sanction to the prosecution of a pardoned approver for perjury seem to be indicated with fair certainty by the fact of the sanction being necessary in that case only. It is clearly not necessary that such a person should be punished for perjury if he can be punished sufficiently both for that and the original crime on a conviction for that original crime.
Sanction therefore ought to be refused unless it appears that a conviction for the original crime is unlikely or a prosecution for it undesirable for any other reason, or that on a conviction for the original crime the sentence that could be passed would be too light to cover both offences. Before sanction can be granted, therefore, it must be shown that there is no intention of prosecuting the approver for the original crime, or that he has already been prosecuted for it and either has been acquitted or has received or is likely to receive such a light sentence that ii is not sufficient to cover his further crime of perjury."
Rejecting the application for sanction as premature, the Court added that the person's acquittal for murder would not of itself be any bar to his conviction for perjury. If such prosecution should fail, that failure of itself would be no reason why another application for sanction to prosecute the accomplice for perjury should not be made. The Court also observed that while the prosecution for murder would be by the police on the basis of a certificate from the Public Prosecutor, section 339(1) of the Code did not cancel section 476. It merely imposed an additional condition essential to the institution of a prosecution for perjury by an approver and, even when that condition is satisfied, the prosecution could still be initiated only on a complaint by the Sessions Court or the High Court.
1. Gambhir Bhajua, AIR 1927 Nag 189 (192).
24.27. Is trial for perjury under section 339?.-
The position is also obscure in one other aspect. Under the proviso to su.-section (1), the approver is entitled to plead at such trial that he has complied with the condition upon which the tender of pardon was made to him. The procedure for giving effect to such a plea is indicated in section 339A. The trial of the approver for the original offence must necessarily be distinct from his trial for perjury. While the first would without doubt be regarded as a trial "under section 339", the second might not be so regarded. It is obviously desirable that doubts on these points should be removed by a proper rewording of the two sections.
24.28. Applicability of sections 195 and 476 to offence of perjury by approver.-
It will be readily conceded that the offence of perjury committed by an approver stands on a special footing and prosecutions for that offence require a certain amount of screening. It does not, however, appear to be necessary that there should be, first, a certificate of the Public Prosecutor under section 339(1), secondly, the sanction of the High Court under section 339(3), and thirdly, a complaint under section 195(1)(b) (after an inquiry, if necessary under section 476) by the Court before which the offence was committed or by the High Court.
The certificate of a responsible law officer like the Public Prosecutor who has been in charge of the original trial and consequently fully acquainted with the facts and circumstances of the case might even be regarded as sufficient guarantee that the approver is prosecuted for perjury only in appropriate cases. As indicated in the judgment cited above, such a prosecution would be launched in the majority of cases only when the circumstances do not justify a prosecution of the approver for the original offence or when that prosecution has, for some reason, failed.
After careful consideration, however, we are of the view that it would be sufficient to provide for a certificate of the Public Prosecutor and sanction of the High Court under section 339 and that it is not necessary to complicate and delay the prosecution by insisting upon a prior inquiry under section 476, followed by a complaint under section 195(1)(b).
24.29. Section 339(2).-
Section 339(2) provides that "the statement" made by a person who has accepted a tender of pardon may be given in evidence against him at a trial referred to in section 339(1). This gives an impression that there is only one such statement which is generally not the case. Judicial decisions1 make it clear that the statements referred in su.-section (2) are the statements made by the approver after he has accepted the tender of pardon. As pointed out in a Lahore case,2 the su.-section "makes, by necessary implication, a statement of this nature an exception to the rule of evidence enacted in section 24, Indian Evidence Act, so far as that section excludes confessions made as the result of the inducement of pardon".
Such statements could have been recorded by a Magistrate under section 164 during investigation or by the Court during the inquiry or trial under section 337(2), and notwithstanding that they were or might have been induced by the tender of pardon, they are made admissible in evidence under section 339(2). Despite the loose wording, this section cannot be held to cover other statements made by the approver after accepting the tender of pardon, e.g., statements made to a police officer or to a private person. Their admissibility in evidence will be decided under the general provisions of the Evidence Act.
1. Rambharose, AIR 1944 Nag 105 (FB); Horilal, AIR 1940 Nag 218; Miral, AIR 1943 Sind 166 (169).
2. Ram Nath v. Emperor, 29 Cr LJ 413: AIR 1928 Lah 320 (322).
24.30. Section 339A.-
The provisions contained in section 339A are supplementary to those contained in section 339. In fact, it will be conducive to clarity and easier understanding if the provisions are put together in one section. The reference to a High Court in su.-section (1)(a) and the reference to the jury and to the Magistrate in su.-section (2) will have to be omitted as being unnecessary or superfluous.