Bharatiya Nagarik Suraksha Sanhita, 2023
Section 343
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 an offence to which this section applies, the Chief Judicial Magistrate at any stage of the investigation or inquiry into, or the trial of, the offence, and the 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 to—
(a) any offence triable exclusively by the Court of Session or by the Court of a Special Judge appointed under any other law for the time being in force;
(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 sub-section (1) shall record—
(a) his reasons for so doing;
(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 sub-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 sub-section (4), the Magistrate taking cognizance of the offence shall, without making any further inquiry in the case—
(a) commit it for trial—
(i) to the Court of Session if the offence is triable exclusively by that Court or if the Magistrate taking cognizance is the Chief Judicial Magistrate;
(ii) to a Court of Special Judge appointed under any other law for the time being in force, if the offence is triable exclusively by that Court;
(b) in any other case, make over the case to the Chief Judicial Magistrate who shall try the case himself.
Why this exists
This 'approver' scheme exists because some crimes, especially organised or conspiratorial ones, are hard to prove without an insider's testimony. By offering a co-conspirator conditional immunity in exchange for full and honest disclosure, investigators and courts can break open cases that would otherwise stay unsolved, at the cost of letting one wrongdoer go free to convict the others.
How courts read it
Indian courts have long treated approver evidence as a special category requiring corroboration, since the approver has a strong motive to please the prosecution to save himself; judgments dealing with tender of pardon under the earlier Code of Criminal Procedure repeatedly caution that an approver's testimony should be treated with care and supported by independent evidence before being used to convict co-accused.
Common misconceptions
- Myth: Anyone who confesses to a crime automatically gets a pardon under this section.
Fact: Only a Chief Judicial Magistrate or first-class Magistrate can tender such a pardon, only for serious offences listed in the section, and only where a full and true disclosure is made; the pardon can later be withdrawn if the person conceals facts or lies.