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Report No. 47

Chapter 13

Tender of Pardon

13.1. Tender of pardon.-

A matter of procedure relevant to the offences concerned may be mentioned here. That is the question of tender of pardon. The following extracts from the Report of the previous Law Commission (on the Code of Criminal Procedure) would be of interest1 in this connection:-

"In a recent case2 which came up before the Supreme Court in appeal, a woman who acted as a carrier in a conspiracy to smuggle gold into India had, in her statements made to the customs officials investigating the case, admitted her role as a participant in the crime. But instead of being included in the array of accused person and sent up for trial, she was examined as a witness against her former associates. The question arose whether she was a competent witness. While holding that she was, the Supreme Court observed:-

"It is, however, necessary to say that where section 337 or 338 of the Code applies, it is always proper to invoke those sections and follow the procedure there laid down. Where these sections do not apply, there the procedure of withdrawal of the case against an accomplice. To keep the sword hanging over the head of an accomplice and to examine him as a witness is to encourage perjury. Perhaps it will be possible to enlarge section 337 to take in certain special laws dealing with customs, foreign exchange etc. where accomplice testimony will always be useful and witnesses will come forward because of the conditional pardon offered to them."

We have given our respectful consideration to this observation of the Supreme Court but it does not seem practicable to select from among the large number of special laws creating socio-economic offences those which are sufficiently grave to be brought within the scope of section 337. The result of such inclusion will be that every case pertaining to such an offence where tender of pardon is made, will have to be tried by the Court of Session which may not be feasible."

1. 41st Report of the Law Commission (Criminal Procedure Code), Vol. 1, para. 24.17.

2. Laxmipat Chorasia v. State of Maharashtra, AIR 1968 SC 938 (945): (1968) 2 SCR 624 (635).

13.2. We have examined this question carefully and have naturally given due weight to the views expressed by our predecessor Commission. However we have, with respect, come to the conclusion that in respect of the offences with which we are concerned an amendment in this respect is called for. As a matter of interest, we may note that such a provision has so far been made only in the Income-Tax Act, and there too the pardon is granted by the Government.

The relevant section is quoted below1:-

"291. (1) The Central Government if, it is of opinion (the reasons for such opinion being recorded in writing) that with a view to obtaining the evidence of any person appearing to have been directly or indirectly concerned in or privy to the concealment of income or to the evasion of payment of tax on income it is necessary or expedient so to do, tender to such person immunity from prosecution for any offence under this Act or under the Indian Penal Code or under any other Central Act for the time being in force and also from the imposition of any penalty under this Act on condition of his making a full and true disclosure of the whole circumstances relating to the concealment of income or evasion of payment of tax on income.

(2) A tender of immunity made to, and accepted by the person concerned, shall, to the extent to which the immunity extends, render him immune from prosecution for any offence in respect of which the tender was made or from the imposition of any penalty under this Act.

(3) If it appears to the Central Government that any person to whom immunity has been tendered under this section has not complied with the condition on which the tender was made or is wilfully concealing anything or is giving false evidence, the Central Government may record a finding to that effect, and thereupon the immunity shall be deemed to have been withdrawn, and any such person may be tried for the offence in respect of which the tender of immunity was made or for any other offence of which he appears to have been guilty in connection with the same matter and shall also become liable to the imposition of any penalty under this Act to which the would otherwise have been liable."

13.3. If our suggestion regarding trial by Special Judges is accepted1, it will not be necessary to have an express provision as the Criminal Law Amendment Act2 has an express provision in this regard.

1. See para. 9.11, supra.

2. Section 8(2), Criminal Law Amendment Act, 1952.

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