Approver

What is Approver

The Black Law Dictionary defines "an approver" as an accomplice to an offense who accuses others of the same offense and is admitted as a witness at the discretion of the Court to testify against his companions in guilt. The term "approver" is neither defined nor used in the Criminal Procedure Code (CrPC), but is usually applied to a person, supposed to be directly or indirectly concerned in or privy to an offence to whom a pardon is granted under Section 337 of the CrPC with a view to securing his testimony against other persons guilty of the offence.

Approver is a different term than both accomplice and co-accused. An accomplice means a person who has taken part in the commission of a crime, when an offense is committed by more than one person and everyone participating in its commission is an accomplice. A co-accused refers to an individual who is charged alongside one or more others in a criminal case. They are jointly accused of participating in the same criminal activity or offense. Each co-accused is considered equally liable for the crime, and they face trial together, although their levels of involvement and culpability may vary.

Legal Provisions Related to Approver

Provisions under CrPC and BNSS

Section 306, CrPC (Section 343, BNSS 2023)

Section 306 of the CrPC allows judicial authorities, including the Chief Judicial Magistrate, Metropolitan Magistrate, and Magistrate of the first class, to offer a pardon to an individual involved in an offense under certain conditions. These conditions include providing full and true disclosure of the whole of the circumstances by the said individual within his knowledge relative to the offence and to every other person concerned, whether as principal or abettor. The provision applies to offenses exclusively triable by the Court of Session or a Special Judge, or those punishable by imprisonment extending up to seven years or more. Magistrates must record their reasons for offering a pardon and whether the tender of pardon was or was not accepted by the person to whom it was made, providing a copy of this record to the accused upon request. Individuals accepting a pardon are required to testify in Court as a witness and may be detained until the trial concludes, unless he is already on bail. Once accepted, the case may be committed for trial without further inquiry, depending on the nature of the offense and the jurisdiction of the Court.

Section 307, CrPC (Section 344, BNSS 2023)

Power to direct tender of pardon.—At any time after commitment of a case but before judgment is passed, the Court to which the commitment is made may, with a view to obtaining at the trial the evidence of any person supposed to have been directly or indirectly concerned in, or privy to, any such offense, tender a pardon on the same condition to such person.

Section 308, CrPC (Section 345, BNSS 2023)

Section 308 of the CrPC outlines the trial procedure for individuals who fail to comply with the conditions of a pardon granted under Section 306 or Section 307. If the Public Prosecutor certifies that the person has willfully concealed essential information or provided false evidence, they may be tried for the original offense and any related offenses. However, they shall not be tried jointly with other accused persons, and prosecution for giving false evidence requires the High Court's sanction. Any statement made by the person accepting the pardon and recorded by a Magistrate under Section 164 or by a Court under Section 306 (4) can be used as evidence against them at trial. The accused has the right to plead compliance with the pardon conditions, shifting the burden of proof to the prosecution. The court must inquire about this plea before proceeding with the trial. If the accused proves compliance, the court must acquit them, regardless of other provisions in the CrPC.

Section 309, CrPC (Section 346, BNSS 2023)

Section 309 of the CrPC provides the procedures for postponing or adjourning court proceedings. In general, proceedings should continue daily until all witnesses have been examined, except in specific circumstances requiring adjournment. For cases involving certain serious offenses, such as those listed in the provision, proceedings must be completed within two months from the filing of the charge sheet. The court has the authority to postpone or adjourn proceedings for reasonable reasons, with terms recorded, and may remand the accused if necessary, but not exceeding fifteen days at a time. Adjournment or postponement should not occur without examining present witnesses unless for recorded special reasons. Additionally, adjournment cannot solely serve to allow the accused to contest the proposed sentence. Parties cannot request adjournment for reasons under their control, such as the unavailability of their lawyer in another court. If a witness is present but the party or lawyer is absent or unprepared, the court may record the witness's statement and proceed accordingly. The section also explains that obtaining further evidence through remand is a reasonable cause for it and outlines the potential terms, including cost implications, for granting adjournment or postponement.

Section 337, CrPC (Section 376, BNSS 2023)

Procedure where lunatic prisoner is reported capable of making his defence.—If such person is detained under the provisions of sub-section (2) of Section 330, and in the case of a person detained in a jail, the Inspector-General of Prisons, or, in the case of a person detained a lunatic asylum, the visitors of such asylum, or any two of them shall certify that, in his or their opinion, such person is capable of making his defence, he shall be taken before the Magistrate or Court, as the case may be, at such time as the Magistrate or Court appoints, and the Magistrate or Court shall deal with such person under the provisions of Section 332; and the certificate of such Inspector-General or visitors as aforesaid shall be receivable as evidence.

Note: Under Section 376 BNSS, 'unsound mind' has been used instead of 'lunatic' and reference has been made to the Mental Health Review Board constituted under the Mental Healthcare Act, 2017.

Provisions under Indian Evidence Act

Section 30 (Section 14, BSB 2023)

Consideration of proved confession affecting person making it and others jointly under trial for same offence.––When more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of such persons is proved, the Court may take into consideration such confession as against such another person as well as against the person who makes such confession.

Section 114 (Section 119, BSB 2023)

Section 114 of the Act deals with facts which the Court may assume in a particular case, and Illustration (b) states that an accomplice is a person unworthy of credit until and unless the evidence brought by the approver is corroborated with some other evidence.

Section 133 (Section 138, BSB 2023)

Section 133 of the Indian Evidence Act, 1872 establishes that an accomplice is a competent witness against their co-accused and that their testimony is admissible in court. Moreover, a conviction is not unlawful solely because this testimony is uncorroborated by additional evidence. However, it is a long-established legal practice that Section 133 should be read in conjunction with Illustration (b) of Section 114 of the Evidence Act.

Case Laws on Approver

Ravinder Singh v. State of Haryana, 1975 Cri LJ 765 at pp. 769, 770 (SC): AIR 1975 SC 856

An approver is a most unworthy friend, if at all, and he, having bargained for his immunity, must prove his worthiness for credibility in court. This test is fulfilled, firstly, if the story he relates involves him in the crime and appears intrinsically to be a natural and probable catalogue of events that had taken place. The story, if given with minute details according with reality, is likely to save it from being rejected brevi manu. Secondly, once that hurdle is crossed, the story given by an approver, so far as the accused on trial is concerned, must implicate him in such a manner as to give rise to a conclusion of guilt beyond reasonable doubt. In a rare case, taking into consideration all the factors, circumstances, and situations governing a particular case, conviction based on the uncorroborated evidence of an approver confidently held to be true and reliable by the court may be permissible. Ordinarily, however, an approver's statement has to be corroborated in material particulars, bridging closely the distance between the crime and the criminal. Certain clinching features of involvement disclosed by an approver, appertaining directly to an accused, if reliable, by the touchstone of other independent credible evidence, would give the needed assurance for acceptance of his testimony on which a conviction may be based.

Tariq Ahmed Dar v. National Investigation Agency, 2023 SCC Online J&K 236

The provisions contained in Section 306(4)(b) CrPC mandate that unless the accused is already on bail he shall be detained in custody until the termination of trial operates as complete bar on the powers of Criminal Court to release approver on bail, however, the High Court has the inherent powers under Section 482 of CrPC to pass any order including release of petitioner/approver on bail to meet the ends of justice and to prevent the abuse of process of the Court.

Shanker v. State of Tamil Nadu Shanker, 1994 SCC (4) 478

The word 'accomplice' has not been defined by the Evidence Act and it is generally understood that an accomplice means a guilty associate or partner in crime. An accomplice by becoming an approver becomes a prosecution witness,

Other Cases

Based on legal provisions and judicial precedents, specifically CBI v. Ashok Kumar Aggarwal; Anr; Jasbir Singh v. Vipin Kumar Jagi & Ors.; Prabhjot Ranjan Sarkar & Ors. v. The State of Bihar; State of UP v. Kailash Nath Agarwal and Ors; M.M. Kochhar v. State; and Randhir Basu v. State of West Bengal, the following legal principles are established:

1. The court's authority to grant a pardon must aim to obtain evidence that is directly or indirectly related to the offense(s).
2. A court of competent jurisdiction can grant a pardon at any stage. However, before doing so, the court should understand the type of evidence the pardon-seeking individual is expected to provide, as well as their involvement and role in the crime.
3. The court should unequivocally endorse the granting of a pardon if the prosecution believes that the conviction of other offenders would be challenging without the approver's testimony.
4. The court may consider an accused person's offer to serve as an approver, though typically the prosecution initiates the request.
5. The court should exercise this power primarily when the prosecution supports the request, as the State may not need the approver's testimony and might not wish to pardon an accused who could be the main offender.
6. Pardons are conditional upon the complete and truthful disclosure of all events related to the crime, including specific details. Failure to do so requires initiating separate legal proceedings under Section 308 of the CrPC.
7. Once granted immunity and designated as an approver, the individual is discharged, ceases to be an accused, and can only be questioned as a witness by the co-accused, unless the immunity is revoked for failing to disclose the entire truth.