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Tender of pardon under section 306 crpc

By: Shivendra Pratap Singh
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My younger brother is prosecuted for the offence of robbery by Banglore police. The offence is committed by his friends and he was bounded by his friends to take participation in the commencement of offence. At the stage of the investigation, police offered him to convert in government witness. He accepted that offer and file application before the trial court. But unfortunately, his application has been rejected by the court. Is there any legal provision to file an appeal?

A co-accused cannot be tendered pardon under section 306 crpc if he was not involved in the crime as an active offender. The object behind tendering pardon to one of the co-accused is to obtain all the evidence regarding the commencement of offence if prosecution lacks sufficient evidence to the guilt of the accused. So the accused seeks pardon must prove before the court that he took part in the commission of the offence as an active member. He knows all the facts and circumstances of the case and he could be a worthy witness for the prosecution.

When an application for tendering pardon is filed by one of the accused without taking permission of the prosecution it shall not be entertained by the court.

In Lt. Commander vs State of Maharashtra AIR 1968 SC, it is held by the Supreme Court of India that if the application is filed by the accused for tendering pardon it should be forwarded by the court to the prosecuting agency for its comments/opinion. The court should not pass an order without the opinion of the prosecution. If the prosecution is agreed and also seek pardon of the co-accused then the court shall decide his application.

In A. Devendran vs State of Tamilnadu AIR 1998 SC, it is held by the court that accused must be worthy for the prosecution and prosecution should be in a condition that rest of the accused cannot be punished without the testimony of any one of the co-accused.

The decision of the court to dismiss your brother’s application for tendering of pardon under section 306 is correct. You cannot get any relief in appeal or revision because :

  • The prosecution did not give its opinion regarding a pardon.
  • He is not an active member in the commission of the offence.
  • He also does not know all the facts of the offence.
  • He is not a worthy witness for the prosecution.
  • He just wants immunity from the punishment

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