Pardon to Approver Not Automatically Forfeited on Prosecutor’s Certificate: Karnataka High Court

The Court clarified that revocation of pardon requires a judicial determination of willful breach of its conditions and cannot be founded solely on allegations made by the prosecution.

The bench pronounced the judgment while dismissing a Criminal Revision Petition filed by the Central Bureau of Investigation (CBI) challenging an order of the Special CBI Court, Bengaluru, which had refused permission to prosecute two accused who had been tendered pardon and examined as approvers in a corruption case.

Justice Anant Ramanath Hegde observed, “In the event that such inducement or pressure was not there for making the confessional statement, then evidence in the cross-examination that accused were pressurized and induced to confess under Section 164(1) of the Code may amount to false evidence. If the approver is to be tried for giving false evidence, then the prosecution must seek the leave of the High Court as provided under the proviso to Section 308(1) of the Code. Admittedly, the petitioner has not sought such leave…In view of the wide scope of cross-examination, every new statement made in the cross-examination by the approver cannot be termed as violation of the terms and conditions of the pardon. Whether, such new statements made in the cross-examination amount to violation of the terms of the pardon depends upon the facts of each case”.

While referring to Rammi Alias Rameshwar v. State of Madhya Pradesh AIR 1999 SC 3544 which said that re-examination under Section 138 of the Indian Evidence Act, 1872 is not confined to clarification of ambiguities in the cross-examination, the bench noted, “The prosecution could have re-examined the approvers on the new facts narrated in the cross examination. That is not done.”.

Prasanna Kumar P, Spl. PP appeared for the petitioner, and Advocate Ganesh Kumar R appeared for the respondents.

In the pertinent matter, a case was registered by the CBI, in which the accused-respondents herein, volunteered to turn approvers during the course of investigation. Their confessional statements were recorded under Section 164(1) CrPC by a Magistrate on 24-08-2016.

Subsequently, Special Judge (CBI) granted them pardon under Section 306 CrPC, subject to the statutory condition that they make a full and true disclosure of facts and depose truthfully before the court.

The approvers were examined as prosecution witnesses and were subjected to cross-examination by the remaining accused. After completion of evidence and when the matter was posted for final arguments, the Public Prosecutor filed an application under Section 308 CrPC, contending that the approvers had violated the conditions of pardon by stating during cross-examination that their earlier statements under Section 164 CrPC were made under pressure from CBI officials.

The Special Court, thereafter, dismissed the application, holding that no breach of the pardon conditions was established.

Now the High Court had to consider, inter alia:

1. Whether a certificate issued by the Public Prosecutor under Section 308(1) CrPC results in automatic cancellation of pardon;
2. Whether examination of an approver under Section 306(4) CrPC is mandatory in cases where pardon is granted by a Special Court competent to take cognizance; and
3. Whether the statements made by the approvers during cross-examination amounted to violation of the conditions of pardon.

Answering the principal issues against the prosecution, the High Court held that automatic forfeiture of pardon is unknown to law. It reiterated that Section 308 CrPC envisages a judicial process, requiring the court to independently assess whether the approver has willfully concealed material facts or given false evidence, before permitting prosecution.

The Court noted that the statements under Section 164 CrPC were recorded prior to the grant of pardon and at a stage when no conditions of pardon were in existence. Consequently, any alleged omission or non-disclosure in those statements could not be treated as a violation of conditions imposed subsequently.

Significantly, the Court held that statements made during cross-examination alleging pressure, inducement, or coercion, even if accepted at face value, do not amount to breach of pardon. The Court observed that narrating such facts, cannot attract penal consequences.

If the prosecution believed such statements to be false, its remedy lay in invoking the proviso to Section 308(1) CrPC by seeking leave of the High Court to prosecute the approver for giving false evidence, a step which was admittedly not taken, the bench noted in the judgment.

The Court further noted that the prosecution failed to exercise its right of re-examination to clarify or rebut the statements relied upon.

Finding no material to establish willful breach of the conditions of pardon, the High Court upheld the order of the Special CBI Court and dismissed the CBI’s revision petition. The Court reiterated that Section 308 CrPC cannot be invoked mechanically and that courts must guard against diluting the statutory protection afforded to approvers, particularly given the serious consequences that revocation of pardon entails.

Cause Title: Central Bureau of Investigation v. Shiva Murthy S K & Anr. [Neutral Citation: 2026:KHC:6551]

Appearances:

Petitioner: Prasanna Kumar P, Spl. PP, Rahul Krishna Reddy P, Advocate.

Respondents: Ganesh Kumar R, Advocate.

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