Chief Justice Ramesh Sinha, Justice Bibhu Datta Guru, Chhattisgarh High Court
Chhattisgarh High Court: Court Can Direct Pardon For Accomplice If They Agree To Testify Truthfully Against Other Co-Accused
|The Chhattisgarh High Court set aside an “illegal” Order of the NIA Special Court.
As per Section 344 of the BNSS, the Chhattisgarh High Court clarified that a court is empowered to pardon an accomplice if that accomplice agrees to testify truthfully against co-accused individuals in the case.
The Court set aside an “illegal” Order of the NIA Special Court and remanded the matter for reconsideration of an Application filed under Section 306(1) of the Cr.P.C. (Section 343 of the BNSS) for the grant of permission to tender pardon to one of the accused-cum-surrendered naxal.
A Division Bench of Chief Justice Ramesh Sinha and Justice Bibhu Datta Guru noted, “The surmise, which guided, the learned NIA Court to reject the application, is that application in respect of whom pardon is sought is neither already on bail nor has he been arrested nor is he in custody, is contrary to the statutory scheme of Section 306 of the Cr.P.C. The power to tender pardon upon fulfillment of certain conditions has its own consequences to flow. Merely because, grant of pardon would result in certain legal consequences to flow, as has been provided under Section 306 of the Cr.P.C., the application for grant of pardon could not have been rejected.”
Advocate B. Gopa Kumar appeared for the Appellant.
Brief Facts
The case originated from a crime registered under Section 8(1)(3)(5) of the Chhattisgarh Special Public Security Act 2005. The police had arrested the Respondent and seized 80 naxal pamphlets during a search.
Upon examination, the Respondent revealed he had received the amount from a surrendered Naxal belonging to a proscribed terrorist organisation CPI (Maoist). The Respondent submitted that he was further instructed to purchase a tractor and deliver 80 Naxal pamphlets to the Local Organization Squad Commander of Madded Area Committee. Subsequently, during the investigation, Sections 10, 13(1)(2), 39, and 40 of the UAPA 1967 were also invoked.
Court’s Reasoning
The High Court referred to the decision of the Supreme Court in Suresh Chandra Bahari v. State of Bihar(1995), which explained “that since many a time the crime is committed in a manner for which no clue or trace is available for its detention and therefore pardon is granted for appreciation of the other offenders for the recovery of the incriminating objects and the production of the evidence which otherwise is unobtainable. The dominant object is that the offenders of the heinous and grave offences do not go unpunished. The object of Section 306 Cr.P.C therefore is to allow pardon in cases where heinous offence if alleged to have been committed by several persons so that with the aid of the evidence of the person granted pardon, the offence be brought home to the rest.”
The Court found that the surmise guiding the NIA Court's rejection—that the person for whom pardon is sought is neither on bail, arrested, nor in custody—is "contrary to the statutory scheme of Section 306 of the Cr.P.C."
The Bench remarked, “Whereas in this case, the accused surrendered Naxalite "A" mentioned in the application in respect of whom pardon is sought is neither already on bail nor has he been arrested nor is he in custody. Therefore, in the context of sub-clause 'b' of sub-section 4 of section 306 Cr.P.C. and the opinion of the trial Court in the above mentioned judicial precedent, the necessary condition of sub-clause 'b' of subsection 4 of section 306 Cr.P.C. is not fulfilled in respect of the person mentioned in the application submitted by the prosecution,”
The Court stated that the NIA Special Court "mechanically rejected the application of the appellant, which is perse illegal" without scrutinizing the statements and materials placed before it and without considering its power under Section 344 of the BNSS (Section 307 of the Cr.P.C.).
The Bench held, “Section 307 of the Code of Criminal Procedure (now Section 344 of the Bharatiya Nagarik Suraksha Sanhita BNSS, 2023) empowers the Court to direct tender of a pardon to an accomplice in a case. This means that if a person is believed to have been involved in a crime, the Court can offer them a pardon (immunity from prosecution), if they agree to testify truthfully against other accused individuals in the case.”
Consequently, the Court ordered, “The aforesaid discussion, leads to irresistible conclusion that without scrutinizing the statements and materials placed before it and without considering the fact that it has power vested under Section 344 of the BNSS (Section 307 of the Cr.P.C.) to consider the application of the appellant for pardon, the learned NIA Court, mechanically rejected the application of the appellant, which is perse illegal. Hence, the impugned order is set aside.”
Cause Title: Union of India v. Dinesh Tati (Neutral Citation: 2025:CGHC:29710-DB)
Appearance:
Appellant: Advocates B.Gopa Kumar and Himanshu Pandey