Section 345 – Trial of Person Not Complying with Conditions of Pardon

Introduction

Section 345 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) deals with the consequences when a person who has accepted a tender of pardon does not comply with the conditions attached to that pardon.

The provision allows such a person to be tried for the offence in respect of which the pardon was granted, as well as for any other offence which appears to have been committed by the person in connection with the same matter.

The section ensures that the benefit of pardon is conditional upon the person making the required full and true disclosure.

Section 345 substantially corresponds to Section 308 of the Code of Criminal Procedure, 1973.

Meaning of Section 345

A person who accepts a pardon under the BNSS is required to comply with the conditions of that pardon, particularly the requirement to make a full and true disclosure of the circumstances within their knowledge concerning the offence and the persons involved.

If the person deliberately fails to comply with these conditions, the law provides for their subsequent trial.

Thus, the pardon is not an unconditional immunity from prosecution.

When Does Section 345 Apply?

Section 345 becomes relevant when:

• a person has accepted a tender of pardon;
• the pardon was granted subject to conditions;
• the person is alleged to have deliberately concealed something essential or given false evidence; and
• the conditions of the pardon have therefore not been complied with.

The provision provides a procedure for dealing with such a person.

Withdrawal of Benefit of Pardon

The protection available to the person who accepted the pardon is conditional.

If the person does not comply with the conditions of the pardon, the person may lose the benefit of the pardon and may be tried for the relevant offence.

This prevents an accomplice from obtaining the benefit of pardon while refusing to provide the complete and truthful evidence required in return.

Procedure Under Section 345

The procedure can be understood in the following manner:

1. A person is granted a tender of pardon.
2. The person accepts the pardon.
3. The person is required to make a full and true disclosure.
4. The person fails to comply with the conditions of the pardon.
5. The person may be tried for the offence in respect of which the pardon was granted.
6. The person may also be tried for any other offence which appears to have been committed by them in connection with the same matter.
7. The evidence previously given by the person may be dealt with in accordance with the safeguards prescribed by the section.

Important Safeguard

Section 345 contains safeguards concerning the use of the evidence given by the person who accepted the pardon.

The person must be tried in accordance with the procedure prescribed by the law, and the Court must consider the circumstances in which the pardon was granted and subsequently not complied with.

The provision therefore balances two interests:

• the need to hold the person accountable for failing to honour the conditions of pardon; and
• the requirement of procedural fairness during the subsequent trial.

Trial of the Approver

A person who accepts a pardon is commonly referred to as an approver.

Normally, an approver gives evidence for the prosecution.

However, if the approver does not comply with the conditions of the pardon, Section 345 permits the person to be tried for the relevant offence.

The person may therefore move from the position of a prosecution witness to that of an accused in a subsequent proceeding.

Offences for Which the Person May Be Tried

The person may be tried for:

1. The Original Offence

The person may be tried for the offence in respect of which the pardon was originally granted.

2. Connected Offence

The person may also be tried for another offence which appears to have been committed by them in connection with the same matter.

This ensures that the failure to comply with the conditions does not protect the person from liability for related criminal conduct.

Example

Suppose A, B and C are involved in a criminal offence.

C is granted pardon on the condition that C makes a full and true disclosure regarding the offence and the involvement of A and B.

C accepts the pardon but subsequently deliberately conceals important facts and does not make the required truthful disclosure.

In such a situation, C may be tried for the offence in respect of which the pardon was granted and for any other connected offence appearing to have been committed by C.

Object and Purpose

The main objectives of Section 345 are:

• to ensure compliance with the conditions attached to a pardon;
• to prevent misuse of the pardon mechanism;
• to ensure that an accomplice does not obtain immunity without providing the promised disclosure;
• to permit prosecution where the conditions of pardon are not fulfilled; and
• to maintain the integrity of the process of tendering pardon.

Difference Between Sections 343, 344 and 345

Section 343 – Tender of Pardon

Section 343 deals with the power of the competent Magistrate to tender pardon to an accomplice subject to full and true disclosure.

Section 344 – Power to Direct Tender of Pardon

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

Section 345 – Non-Compliance with Pardon

Section 345 deals with the consequences when the person who accepted the pardon does not comply with its conditions.

Therefore:

Section 343 → Tender of pardon

Section 344 → Power of Court to tender or direct pardon

Section 345 → Trial for failure to comply with conditions of pardon

Important Distinction

Pardon Is Conditional

The pardon granted under the BNSS is not an unconditional release from criminal liability.

The person must comply with the conditions attached to the pardon.

Approver Is Not Permanently Immune

An approver who fails to comply with the conditions of the pardon may be subjected to trial in accordance with Section 345.

Full and True Disclosure

The requirement of full and true disclosure is central to the pardon mechanism.

A person cannot retain the benefit of pardon while deliberately withholding material information or failing to fulfil the conditions imposed.

BNSS and CrPC

Section 345 BNSS substantially corresponds to Section 308 of the Code of Criminal Procedure, 1973.

The basic principle remains that an accomplice who has accepted a pardon but fails to comply with the conditions of that pardon may be tried for the relevant offence and connected offences.

Relationship with Section 343 and Section 344

Section 345 operates as the consequence of the pardon mechanism created by Sections 343 and 344.

The sequence can be remembered as:

Section 343 → Magistrate may tender pardon

Section 344 → Court may tender or direct tender of pardon

Section 345 → Non-compliance with pardon conditions can lead to trial

Topic at a Glance

• Section: 345, BNSS, 2023
• Subject: Trial of person not complying with conditions of pardon
• Person concerned: Person who has accepted a tender of pardon
• Main requirement: Compliance with the conditions of pardon
• Key condition: Full and true disclosure
• Consequence of non-compliance: Person may be tried for the relevant offence
• Additional liability: Connected offences may also be tried
• Common term: Approver
• Purpose: Prevent misuse of conditional pardon
• Corresponding CrPC provision: Section 308, CrPC

Quick Revision

• Section 345 BNSS deals with the trial of a person who does not comply with the conditions of a pardon.
• A person accepting pardon must comply with its conditions.
• The most important condition is full and true disclosure of the relevant circumstances and persons involved.
• Failure to comply can result in the person being tried for the offence for which the pardon was granted.
• The person may also be tried for another connected offence appearing to have been committed by them.
• An approver can therefore lose the protection associated with the pardon by failing to comply with its conditions.
• Section 345 substantially corresponds to Section 308 of the CrPC.

ALSO READ: Section 344 – Power to direct tender of pardon

Conclusion

Section 345 BNSS ensures that the tender of pardon remains a conditional benefit rather than an unconditional immunity. An accomplice who accepts pardon must fulfil the conditions attached to it, particularly the obligation of full and true disclosure. Failure to comply may result in the person being tried for the relevant offence and connected offences. The provision therefore protects the integrity of the pardon mechanism while ensuring accountability for misuse of the benefit.