Section 343 – Tender of Pardon to Accomplice

Introduction

Section 343 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) deals with the power of the Court to tender a pardon to an accomplice in exchange for a full and true disclosure of the circumstances within their knowledge relating to the offence.

The provision is intended to assist the prosecution in cases where the evidence of an accomplice may be necessary to uncover the complete facts of an offence or identify other persons involved in the crime.

Section 343 substantially corresponds to Section 306 of the Code of Criminal Procedure, 1973.

Meaning of Section 343

An accomplice is a person who has participated in or is connected with the commission of an offence.

Section 343 allows a competent Court to offer such a person a pardon on the condition that the person makes a full and true disclosure of the whole circumstances within their knowledge relating to the offence and to every other person concerned, whether as principal or abettor, in the commission of the offence.

The person who accepts the pardon is commonly referred to as an approver.

Who Can Be Granted Pardon?

Section 343 applies to an accomplice in cases involving serious offences.

The provision covers offences:

• triable exclusively by the Court of Session; or
• punishable with imprisonment which may extend to seven years or with a more severe punishment.

Therefore, the power is principally intended for significant criminal cases where the evidence of an accomplice may be particularly valuable.

Courts Competent to Tender Pardon

Pardon may be tendered by:

• the Chief Judicial Magistrate; or
• a Magistrate of the first class taking cognizance of the offence.

The power is subject to the conditions prescribed under Section 343.

Conditions Attached to Pardon

The most important condition is that the person accepting the pardon must make a full and true disclosure.

The disclosure must relate to:

1. the whole circumstances within the person’s knowledge concerning the offence; and
2. every other person concerned in the commission of the offence, whether as a principal or an abettor.

Thus, the person cannot selectively disclose only those facts which are favourable to them.

Section 343(1)

Section 343(1) provides the substantive power to tender pardon.

The Chief Judicial Magistrate or a Magistrate of the first class taking cognizance of an offence may, at any stage of the investigation or inquiry into, or the trial of, the offence, with a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in, or privy to, the offence, tender a pardon to such person.

The pardon is subject to the condition that the person makes a full and true disclosure of the whole circumstances within their knowledge relating to the offence and to every other person concerned in the commission of the offence.

Section 343(2)

Every person accepting a tender of pardon must be examined:

• as a witness in the Court taking cognizance of the offence; and
• in the subsequent trial, if any.

Therefore, acceptance of pardon does not simply end the person’s involvement in the judicial process.

The person who receives pardon becomes an important prosecution witness and is required to give evidence.

Section 343(3)

This sub-section deals with the recording of reasons for tendering pardon.

The Magistrate must record:

• reasons for tendering the pardon; and
• whether the person to whom the pardon was tendered has accepted it.

This requirement promotes transparency and creates a record of the circumstances in which the pardon was granted.

Important Safeguard

The pardon is conditional.

The accomplice must make a full and true disclosure.

If the person conceals material facts or gives false evidence, the protection associated with the pardon may be withdrawn in accordance with the procedure provided under the BNSS.

Thus, the tender of pardon is not an unconditional promise of immunity.

Purpose of Tendering Pardon

The primary purpose of Section 343 is to obtain evidence from a person who participated in or was connected with the offence.

An accomplice may possess information concerning:

• the planning of the offence;
• the persons involved;
• the role played by each participant;
• the manner in which the offence was committed; and
• other circumstances which may not be known to the investigating authorities.

Granting conditional pardon may encourage such a person to disclose the complete facts.

Procedure Under Section 343

The process can be understood as follows:

1. An offence falling within the scope of Section 343 is under investigation, inquiry or trial.
2. A person is believed to have been directly or indirectly concerned in, or privy to, the offence.
3. The competent Magistrate considers whether granting pardon would help obtain relevant evidence.
4. Pardon is tendered subject to the condition of full and true disclosure.
5. The person accepts or refuses the pardon.
6. Reasons for tendering the pardon are recorded by the Magistrate.
7. If the pardon is accepted, the person is examined as a witness.
8. The person must make a complete and truthful disclosure concerning the offence and other persons involved.

Accomplice and Approver

Accomplice

An accomplice is a person who has participated in or is otherwise involved in the commission of an offence.

Approver

An accomplice who accepts a tender of pardon and agrees to make a full and true disclosure is commonly known as an approver.

The approver therefore changes from a person involved in the offence into a prosecution witness subject to the conditions of the pardon.

Important Distinction

Pardon Is Not Automatic Acquittal

Tendering pardon does not mean that the accomplice is automatically acquitted of every possible liability.

The pardon is conditional upon the required disclosure.

Full Disclosure Is Necessary

The person must disclose the whole circumstances within their knowledge relating to the offence and the persons involved.

A selective or incomplete disclosure may result in consequences under the BNSS.

Approver as Witness

An approver is required to give evidence. The person is not simply released from the proceedings without further involvement.

Their evidence becomes part of the prosecution case and is subject to judicial assessment.

Example

Suppose A, B and C jointly participate in a serious offence. During the investigation, C agrees to disclose the complete circumstances of the offence and the roles played by A and B.

The competent Magistrate may tender pardon to C on the condition that C makes a full and true disclosure of all facts within C’s knowledge concerning the offence and the persons involved.

If C accepts the pardon, C must give evidence as a witness and disclose the relevant circumstances completely and truthfully.

Object and Purpose

The main objectives of Section 343 are:

• to obtain evidence from an accomplice;
• to uncover the complete circumstances of a serious offence;
• to identify other persons involved in the offence;
• to facilitate the prosecution of principal offenders and abettors;
• to encourage truthful disclosure by persons involved in the offence; and
• to assist the Court in discovering the complete facts of the case.

BNSS and CrPC

Section 343 BNSS substantially corresponds to Section 306 of the Code of Criminal Procedure, 1973.

The basic mechanism of tendering pardon to an accomplice has been retained under the BNSS.

The provision continues to require a full and true disclosure as the essential condition attached to the pardon.

Relationship with BSA

The tender of pardon under Section 343 is a procedural matter governed by the BNSS.

Once the accomplice accepts the pardon and gives evidence, the evidentiary aspects of that testimony are governed by the Bharatiya Sakshya Adhiniyam, 2023 (BSA).

The fact that the witness was an accomplice remains relevant when the Court assesses the credibility and evidentiary value of the testimony.

Topic at a Glance

• Section: 343, BNSS, 2023
• Subject: Tender of pardon to accomplice
• Person concerned: Person directly or indirectly concerned in, or privy to, the offence
• Authority: Chief Judicial Magistrate or Magistrate of the first class taking cognizance
• Purpose: To obtain evidence of the accomplice
• Main condition: Full and true disclosure
• Disclosure: Must cover the whole circumstances within the person’s knowledge and every person concerned in the offence
• Result of acceptance: Accomplice becomes a prosecution witness
• Reasons: Magistrate must record reasons for tendering pardon
• Corresponding CrPC provision: Section 306, CrPC

Quick Revision

• Section 343 BNSS deals with tender of pardon to an accomplice.
• Pardon may be granted to a person directly or indirectly concerned in, or privy to, an offence.
• The purpose is to obtain the person’s evidence.
• The pardon is conditional upon a full and true disclosure.
• The disclosure must cover the circumstances within the person’s knowledge and every person concerned in the offence.
• The Chief Judicial Magistrate or a Magistrate of the first class taking cognizance may tender pardon in the cases covered by the provision.
• A person accepting the pardon must be examined as a witness.
• The Magistrate must record the reasons for tendering the pardon.
• An accomplice who accepts the pardon is commonly called an approver.
• Section 343 substantially corresponds to Section 306 of the CrPC.

ALSO READ: Section 342 – Procedure when corporation or registered society is an accused

Conclusion

Section 343 BNSS provides an important mechanism for obtaining evidence from an accomplice in serious criminal cases. By offering conditional pardon in return for a full and truthful disclosure, the provision enables investigating and prosecuting authorities to obtain information about the offence and the persons involved. At the same time, the requirement of complete disclosure ensures that the benefit of pardon is conditional upon genuine cooperation with the administration of criminal justice.