Tender of pardon under section 306 crpc

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Question asked on: 04/04/2016

My  younger brother is prosecuted for the offence of robbery by Banglore police. Actually 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 investigation police offered him to convert in government witness. He accepted that offer and file application before trial court. But unfortunately his application has been rejected by the court. Is there any legal provision to file appeal ?

Advised by: Shivendra Pratap Singh,

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

When 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 application is filed by the accused for tendering pardon it should be forwarded by the court to the prosecuting agency for its comments/opinion. Court should not pass order without opinion of the prosecution. If prosecution is agreed and also seek pardon of the co accused then 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 testimony of any one of the co-accused.

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

  • Prosecution did not give its opinion regarding pardon.
  • He is not an active member in commission of 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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