Section 344 – Power to Direct Tender of Pardon

Introduction

Section 344 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) deals with the power of a Court to direct the tender of pardon to an accomplice.

The provision allows a Court, while dealing with an offence, to direct the Chief Judicial Magistrate or a Magistrate of the first class to tender a pardon to a person believed to have been directly or indirectly concerned in, or privy to, the offence.

The purpose is to obtain the person’s evidence and assist the Court in discovering the complete facts of the offence.

Section 344 substantially corresponds to Section 307 of the Code of Criminal Procedure, 1973.

Meaning of Section 344

Section 344 provides a further mechanism for granting pardon to an accomplice.

Unlike Section 343, which deals with the power of the Chief Judicial Magistrate or Magistrate of the first class to tender pardon, Section 344 empowers the Court trying the case to direct the tender of pardon.

The pardon is subject to the same essential condition that the person must make a full and true disclosure of the whole circumstances within their knowledge concerning the offence and every other person concerned in the commission of the offence.

Statutory Provision

Section 344 provides that at any time after the commitment of a case but before judgment is passed, the Court trying the case may, 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 the section applies, tender a pardon on the same condition as provided under Section 343.

The Court may either:

• itself tender the pardon; or
• direct the Chief Judicial Magistrate to tender the pardon.

The person accepting the tender of pardon must be examined as a witness in the Court.

Essential Elements

1. Case Must Have Been Committed

The power under Section 344 arises after the case has been committed for trial.

Thus, the provision operates at a stage after commitment but before the judgment is pronounced.

2. Court Trying the Case Has the Power

The Court trying the case may direct the tender of pardon.

This distinguishes Section 344 from Section 343, which primarily concerns the power of the Magistrate to tender pardon.

3. Purpose Is to Obtain Evidence

The purpose of tendering pardon is to obtain the evidence of a person who is believed to have been:

• directly concerned in the offence;
• indirectly concerned in the offence; or
• privy to the offence.

4. Full and True Disclosure Is Required

The person accepting the pardon must make a full and true disclosure of:

• the whole circumstances within their knowledge relating to the offence; and
• every other person concerned in the commission of the offence.

The condition of truthful and complete disclosure is therefore central to the pardon.

5. Person Accepting Pardon Becomes a Witness

The person who accepts the tender of pardon must be examined as a witness in the Court.

The person therefore assists the Court by providing evidence concerning the offence and the persons involved.

Procedure Under Section 344

The procedure may be understood as follows:

1. A criminal case has been committed for trial.
2. The trial is pending and judgment has not yet been passed.
3. The Court considers that the evidence of an accomplice may be necessary.
4. The Court decides to tender or direct the tender of pardon.
5. The pardon is offered on the condition of full and true disclosure.
6. The person may accept the pardon.
7. The person accepting the pardon must be examined as a witness.
8. The evidence is considered by the Court during the trial.

Difference Between Section 343 and Section 344

Section 343

Section 343 deals with the power of the Chief Judicial Magistrate or a Magistrate of the first class taking cognizance of an offence to tender pardon to an accomplice.

Section 344

Section 344 deals with the power of the Court trying the case to tender pardon or direct the Chief Judicial Magistrate to tender pardon.

Therefore, the principal distinction is the authority exercising the power and the stage of the proceeding.

Importance of Section 344

Section 344 is particularly useful where the need for the evidence of an accomplice becomes apparent during the course of the trial.

An accomplice may possess information about:

• how the offence was planned;
• how it was committed;
• the persons who participated;
• the role of each participant; and
• other facts which may assist the Court in determining the truth.

The provision allows the Court to obtain such evidence through the mechanism of conditional pardon.

Accomplice and Approver

A person involved in an offence may possess important information about the participation of other offenders.

When such a person accepts a tender of pardon and agrees to make a full and true disclosure, the person is commonly referred to as an approver.

The approver is required to give evidence before the Court.

Conditional Nature of Pardon

The pardon under Section 344 is conditional.

The person accepting it must make a full and true disclosure.

The person cannot obtain the benefit of the pardon while deliberately concealing material facts or withholding relevant information concerning the offence and the persons involved.

The statutory requirement of complete disclosure is intended to ensure that the pardon is used to assist the administration of justice rather than to provide an unconditional escape from criminal liability.

Example

Suppose A, B and C are being tried for a serious offence. During the trial, the Court finds that C was directly involved in the offence but also possesses important information regarding the roles of A and B.

The Court may consider tendering pardon to C under Section 344 on the condition that C makes a full and true disclosure of all circumstances within C’s knowledge concerning the offence and the persons involved.

If C accepts the pardon, C must be examined as a witness before the Court.

Object and Purpose

The main objectives of Section 344 are:

• to obtain important evidence from an accomplice;
• to assist the Court in discovering the complete facts of an offence;
• to identify persons involved in the commission of the offence;
• to enable the prosecution to obtain evidence from a participant in the offence;
• to facilitate the proper administration of criminal justice; and
• to provide a mechanism for tendering pardon even after the case has been committed for trial.

Important Distinction

Pardon Is Not Automatic

The Court has the power to tender or direct the tender of pardon, but the person must accept it and comply with its conditions.

Pardon and Acquittal Are Different

Tender of pardon does not mean that the person is simply acquitted without conditions.

The person must comply with the requirement of making a full and true disclosure and must give evidence as required.

Court’s Power During Trial

Section 344 is important because it allows the power to be exercised after commitment of the case and before judgment is passed.

Therefore, the mechanism remains available even after the matter has moved beyond the initial Magistrate stage.

BNSS and CrPC

Section 344 BNSS substantially corresponds to Section 307 of the Code of Criminal Procedure, 1973.

The basic principle has been retained: the Court trying the case may tender or direct the tender of pardon to a person believed to have been concerned in or privy to the offence, subject to the condition of full and true disclosure.

Relationship with Section 343

Sections 343 and 344 should be read together.

Section 343: Power of specified Magistrates to tender pardon.

Section 344: Power of the Court trying the case to tender or direct tender of pardon after commitment and before judgment.

Both provisions are based on the same underlying principle of obtaining evidence from an accomplice through a conditional pardon.

Topic at a Glance

• Section: 344, BNSS, 2023
• Subject: Power to direct tender of pardon
• Authority: Court trying the case
• Stage: After commitment of the case and before judgment
• Purpose: To obtain evidence of an accomplice
• Person concerned: Person directly or indirectly concerned in, or privy to, the offence
• Condition: Full and true disclosure
• Result: Person accepting pardon must be examined as a witness
• Corresponding CrPC provision: Section 307, CrPC

Quick Revision

• Section 344 BNSS deals with the Court’s power to tender or direct the tender of pardon.
• The power may be exercised after the case has been committed for trial and before judgment is passed.
• The purpose is to obtain the evidence of a person directly or indirectly concerned in, or privy to, the offence.
• The pardon is conditional upon a full and true disclosure.
• The disclosure must cover the circumstances within the person’s knowledge and every other person concerned in the offence.
• The Court may itself tender the pardon or direct the Chief Judicial Magistrate to tender it.
• A person accepting the pardon must be examined as a witness.
• Section 344 substantially corresponds to Section 307 of the CrPC.

ALSO READ: Section 343 – Tender of pardon to accomplice

Conclusion

Section 344 BNSS gives the Court trying a criminal case the power to use the tender of pardon as a means of obtaining evidence from an accomplice. By allowing the Court to tender or direct the tender of pardon after commitment and before judgment, the provision ensures that important evidence can be obtained even during the trial. The requirement of full and true disclosure ensures that the benefit of pardon remains conditional upon genuine assistance to the administration of justice.