Conditional Pardon

What is Conditional Pardon?

A **conditional pardon** is a legal mechanism by which a court or the government grants a pardon to a person accused of a crime — typically an accomplice — on the condition that they **make a full and true disclosure** of the entire circumstances of the offence and testify truthfully as a **prosecution witness** against the co-accused. The pardoned person is known as an **approver**, and their testimony, though treated with caution, can be crucial in securing convictions in cases where direct evidence is otherwise difficult to obtain.

In simple terms, a conditional pardon means the court tells one of the accused: "We will forgive you if you tell the truth about what happened and help us convict the others."

Legal Framework

Section 306 CrPC / Section 343 BNSS — Tender of Pardon

**Section 306 of the Code of Criminal Procedure, 1973 (CrPC)** (now **Section 343 of the Bharatiya Nagarik Suraksha Sanhita, 2023**) empowers certain courts to tender a pardon to any person **supposed to have been directly or indirectly concerned in or privy to an offence**. The pardon can be tendered:

- By the **Chief Judicial Magistrate or a Metropolitan Magistrate** at any stage of the investigation or inquiry.

- By the court conducting the **committal proceedings** or the trial, at the stage of committal or trial.

The pardon may be tendered in respect of offences that are:

- Triable exclusively by the **Court of Session**.

- Triable exclusively by the **Court of Session or by a Special Court** under any law for the time being in force.

- Punishable with imprisonment which may extend to **seven years or more**.

Conditions of the Pardon

The person tendered a pardon must:

1. **Make a full and true disclosure** of the whole of the circumstances within their knowledge relating to the offence and every other person concerned (whether as principal or abettor) in the commission thereof.

2. **Comply with every condition** on which the pardon is tendered.

The critical element is "full and true disclosure." The approver must not hold back any material facts and must truthfully disclose everything they know.

Section 307 CrPC / Section 344 BNSS — Power to Direct Tender of Pardon

**Section 307 CrPC** provides that at any time after commitment of a case but before judgment, the court to which the commitment is made may, with the consent of the prosecutor, tender a pardon to any such person on the same conditions.

Section 308 CrPC / Section 345 BNSS — Trial of Person Not Complying with Conditions

**Section 308 CrPC** lays down the consequences for an approver who fails to comply with the conditions of the pardon:

- If the approver **does not make a full and true disclosure** or **wilfully conceals anything essential**, the pardon granted can be **revoked**.

- The person may then be **tried for the original offence** as if the pardon had never been granted.

- The approver's own statements made under the pardon can be used as evidence against them in the subsequent trial.

- The trial for non-compliance is conducted by the court before which the original trial was to be held.

The Approver's Testimony

Evidentiary Value

An approver is treated as an **accomplice witness** under Indian evidence law. **Section 133 of the Indian Evidence Act, 1872** (now **Section 119 of the Bharatiya Sakshya Adhiniyam, 2023**) provides that an accomplice is a competent witness, and a conviction based solely on the testimony of an accomplice is not illegal.

However, **Illustration (b) to Section 114 of the Evidence Act** provides that courts may presume that an accomplice is unworthy of credit unless corroborated in material particulars. In practice, courts insist on **corroboration** — independent evidence that supports the approver's testimony on material points connecting each accused to the offence.

The Supreme Court in **Sarwan Singh v. State of Punjab AIR 1957 SC 637** laid down the rule that an approver's evidence must be corroborated in material particulars, and the corroboration must independently connect each accused with the crime.

Caution in Relying on Approver's Evidence

Courts exercise extreme caution with approver evidence because:

- The approver is an admitted criminal who has a motive to shift blame.

- They have secured immunity and may be inclined to exaggerate or fabricate to satisfy the prosecution.

- Their testimony may be coloured by self-interest.

Therefore, while a conviction based solely on an approver's uncorroborated testimony is technically legal, it is considered highly unsafe in practice.

When Does This Term Matter?

In Conspiracy and Organised Crime Cases

Conditional pardons are most commonly used in cases of **criminal conspiracy**, organised crime, corruption, and other offences where direct evidence is difficult to obtain. By turning one accomplice into a prosecution witness, the state can break the wall of silence that often surrounds such crimes.

Under Special Statutes

Several special laws specifically contemplate the use of conditional pardons:

- **Prevention of Corruption Act, 1988** — In corruption cases involving multiple officials, one accused may be pardoned to testify against others.

- **NDPS Act, 1985** — In drug trafficking cases, a minor participant may be pardoned to expose the larger network.

- **PMLA, 2002** — In money laundering cases involving complex financial chains.

For the Accused Seeking Pardon

An accused person contemplating whether to accept a conditional pardon must understand the implications:

- They must make a **complete disclosure** — holding back any fact can result in revocation.

- They will face **cross-examination** by defence lawyers, which can be aggressive.

- If the pardon is revoked, they face trial for the **original offence**, and their own statements become evidence against them.

- Social stigma of being an "approver" or "turncoat."

For Defence Lawyers

Defence lawyers must rigorously test the approver's testimony through cross-examination, demonstrate inconsistencies, and argue that the corroboration is inadequate. A successful challenge to the approver's credibility can dismantle the prosecution's case.

Practical Examples

Murder Conspiracy

Three persons are accused of conspiring to commit murder. The police have circumstantial evidence but lack direct evidence. The prosecution tenders a pardon to one accused (the person who drove the getaway car) under Section 306 CrPC. The approver testifies about the planning, execution, and roles of each conspirator. The court convicts the other two based on the approver's testimony corroborated by phone records and CCTV footage.

Corruption Case

A government contractor and two officials are charged with corruption. The contractor, as the accomplice who paid the bribe, is offered a conditional pardon. He testifies about the demand, payment, and receipt of the bribe. His testimony is corroborated by bank statements and trap evidence.

Revocation of Pardon

An approver in a drug trafficking case makes a disclosure but deliberately omits the involvement of one co-accused who is his relative. During trial, evidence emerges that the approver concealed this fact. The court revokes the pardon under Section 308 CrPC and orders the approver to be tried as an accused alongside the others.

Frequently Asked Questions

Can the court grant a conditional pardon to the main accused or ringleader?

There is no legal bar on granting a pardon to any person involved in the offence, including the principal offender. However, in practice, pardons are typically offered to **minor participants or accomplices** rather than the ringleader. Granting a pardon to the mastermind while prosecuting lesser participants would be contrary to the interests of justice and is unlikely to be sanctioned by the court.

What happens if the approver's testimony does not lead to conviction of the co-accused?

The pardon remains valid even if the co-accused are acquitted, provided the approver has made a full and true disclosure and complied with all conditions. The pardon is conditional on the approver's **truthfulness and completeness**, not on the outcome of the trial. If the approver testified honestly but the court found insufficient corroboration, the approver is not penalised.

Can the conditional pardon be revoked after the trial is over?

The question of revocation typically arises during or before the trial. Once the trial is completed and the court has accepted the approver's testimony, it is generally too late to revoke the pardon. However, if it is discovered after the trial that the approver wilfully concealed material facts, proceedings under Section 308 CrPC may be initiated.

How is a conditional pardon different from clemency under Article 72?

Clemency under **Article 72** (or Article 161) is an executive power exercised by the President or Governor to pardon a convicted person after the conclusion of legal proceedings. A conditional pardon under **Section 306 CrPC** is a judicial/prosecutorial tool used during investigation or trial to convert an accused into a prosecution witness. The former is an act of mercy; the latter is a strategic prosecutorial mechanism.