13. The salutary principle of tendering a pardon to an accomplice is to unravel the truth in a grave offence so that guilt of the other accused persons concerned in commission of crime could be brought home. It has been repeatedly said by this Court that the object of Section 306 is to allow pardon in cases where heinous offence is alleged to have been committed by several persons so that with the aid of the evidence of the person granted pardon, the offence may be brought home to the rest. Section 306 Cr.P.C. empowers the Chief Judicial Magistrate or a Metropolitan Magistrate to tender a pardon to a person supposed to have been directly or indirectly concerned in or privy to an offence to which the section applies, at any stage of the investigation or inquiry or trial of the offence on condition of his making a full and true disclosure of the whole of the circumstances within his knowledge relative to the offence. The Magistrate of the first class, under Section 306, is also empowered to tender pardon to an accomplice at any stage of inquiry or trial but not at the stage of investigation on condition of his making full and true disclosure of the entire circumstances within his knowledge relative to the crime. Section 307 vests the court to which the commitment is made, with power to tender a pardon to an accomplice. The expression, ‘on the same condition’ occurring in Section 307, obviously refers to the condition indicated in sub-section (1) of Section 306, namely, on the accused making a full and true disclosure of the whole of the circumstances within his knowledge relative to the offence and to every other person concerned, whether as principal or abettor, in the commission thereof. An accomplice who has been granted pardon under Section 306 or 307 Cr.P.C. gets protection from prosecution. When he is called as a witness for the prosecution, he must comply with the condition of making a full and true disclosure of the whole of the circumstances within his knowledge concerning the offence and to every other person concerned, whether as principal or abettor, in the commission thereof and if he suppresses anything material and essential within his knowledge concerning the commission of crime or fails or refuses to comply with the condition on which the tender was made and the Public Prosecutor gives his certificate under Section 308 Cr.P.C. to that effect, the protection given to him is lifted.
14. In A.J. Peiris v. State of Madras, a 3 - Judge Bench of this Court stated that the moment a pardon is tendered to the accused he must be presumed to have been discharged, whereupon he ceases to be an accused and becomes a witness.
15. In State v. Hiralal Girdharilal Kothari, with reference to Sections 337 and 339 of the Code of Criminal Procedure, 1898 (now Sections 306, 307 and 308 Cr.P.C.), this Court stated that a pardon tendered under Section 337 is a protection from prosecution; failure to comply with the condition on which the pardon is tendered removes that protection.
16. In State (Delhi Administration) v. Jagjit Singh, this Court held as under:-
“8. ……The power to grant pardon carries with it the right to impose a condition limiting the operation of such a pardon. Hence a pardoning power can attach any condition, precedent or subsequent so long as it is not illegal, immoral or impossible of performance. Section 306 clearly enjoins that the approver who was granted pardon had to comply with the condition of making a full and true disclosure of the whole of the circumstances within his knowledge relative to the offence and to every other concerned whether as principal or abettor, in the commission thereof. It is because of this mandate, the State cannot withdraw the pardon from the approver nor the approver can cast away the pardon granted to him till he is examined as a witness by the prosecution both in the Committing Court as well as in the trial court. The approver may have resiled from the statement made before the Magistrate in the Committing Court and may not have complied with the condition on which pardon was granted to him, still the prosecution has to examine him as a witness in the trial court. It is only when the Public Prosecutor certifies that the approver has not complied with the conditions on which the tender was made by wilfully concealing anything essential or by giving false evidence, he may be tried under Section 308 of the Code of Criminal Procedure not only for the offence in respect of which pardon was granted but also in respect of other offences……..”.
17. The above statement of law in Jagjit Singh cannot be understood as laying down that an accomplice who has been tendered pardon and called as a witness for prosecution must be continued to be examined as a prosecution witness although he has failed to comply with the condition on which the tender of pardon was made and a Public Prosecutor certifies that he has not complied with the condition on which the tender was made. As a matter of fact, in Jagjit Singh’s case no certificate was given by the Public Prosecutor. The legal position that flows from the provisions contained in Sections 306, 307 and 308 Cr.P.C. is that once an accomplice is granted pardon, he stands discharged as an accused and becomes witness for the prosecution. As a necessary corollary, once the pardon is withdrawn or forfeited on the certificate given by the Public Prosecutor that such person has failed to comply with the condition on which the tender was made, he is reverted to the position of an accused and liable to be tried separately and the evidence given by him, if any, has to be ignored in toto and does not remain legal evidence for consideration in the trial against the co-accused, albeit such evidence may be used against him in the separate trial where he gets an opportunity to show that he complied with the condition of pardon. As a matter of fact, it is for this reason that a specific statement was made by the counsel for the State of Maharashtra before us – a similar statement was made before the Designated Court as well – that the evidence of respondent no. 3 so far recorded shall not be used by the prosecution in the present trial.
18. Section 114, illustration (b) of the Indian Evidence Act, 1872 (for short, ‘Evidence Act’) provides that the Court may presume that an accomplice is unworthy of credit, unless he is corroborated in material particulars.
19. Section 132 of the Evidence Act reads as follows:
“132. Witness not excused from answering on ground that answer will criminate - A witness shall not be excused from answering any question as to any matter relevant to the matter in issue in any suit or in any civil or criminal proceeding, upon the ground that the answer to such question will criminate, or may tend directly or indirectly to criminate, such witness, or that it will expose, or tend directly or indirectly to expose, such witness to a penalty or forfeiture of any kind:
Proviso - Provided that no such answer, which a witness shall be compelled to give, shall subject him to any arrest or prosecution, or be proved against him in any criminal proceeding, except a prosecution for giving false evidence by such answer.”
20. Section 133 of the Evidence Act provides that an accomplice shall be a competent witness against an accused person; and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice.
21. Section 154 of the Evidence Act is as under:
“S.-154. Question by party to his own witness.- (1) The Court may, in its discretion, permit the person who calls a witness to put any question to him which might be put in cross examination by the adverse party.
2. Nothing in this section shall disentitle the person so permitted under sub-section (1), to rely on any part of the evidence of such witness.”
22. Section 315 of Cr.P.C. makes an accused person a competent witness for the defence and he may voluntarily give evidence on oath in disproof of the charges made against him or any person charged together with him at the same trial. The said provision reads as follows:
“S.-315. Accused person to be competent witness - (1) Any person accused of an offence before a Criminal Court shall be a competent witness for the defence and may give evidence on oath in disproof of the charges made against him or any person charged together with him at the same trial:Provided that-(a) he shall not be called as a witness except on his own request in writing;
(b) his failure to give evidence shall not be made the subject of any comment by any of the parties or the court or give rise to any presumption against himself or any person charged together with him at the same trial.
(2) Any person against whom proceedings are instituted in any Criminal Court under section 98, or section 107, or section 108, or section 109, or section 110, or under Chapter IX or under Part B, Part C or Part D of Chapter X, may offer himself as a witness in such proceedings:Provided that in proceedings under section 108, section 109 or section 110, the failure of such person to give evidence shall not be made the subject or any comment by any of the parties or the court or give rise to any presumption against him or any other person proceeded against together with him at the same inquiry.”
In other words, Section 315 clearly lays down that an accused cannot be compelled to give evidence except on his own request in writing.
23. Article 20(3) of the Constitution protects an accused from being called or compelled to be witness against himself.
24. We have referred to the aforesaid provisions of the Evidence Act, Cr.P.C. and Constitution to indicate that none of these provisions militates against the proposition that a pardon granted to an accomplice under Section 306 or 307 Cr.P.C. protects him from prosecution and he becomes witness for prosecution but on forfeiture of such pardon, he is relegated to the position of an accused and his evidence is rendered useless for the purposes of the trial of the accused. He cannot be compelled to be a witness. There is no question of such person being further examined for the prosecution and, therefore, no occasion arises for the defence to cross examine him. The Designated Court seriously erred in treating the respondent no. 3 (Riyaz Ahmed Siddique) hostile witness; it failed to consider that the pardon granted and accepted by him was conditional pardon inasmuch as it was on the condition of his making a true and full disclosure of all the facts concerning the commission of crime and once the pardon granted to him stood forfeited, on the certificate issued by the Special Public Prosecutor, he was relegated to the position of an accused and did not remain a witness. In the circumstances, there was no justification to permit the defence to cross examine the respondent no. 3 and to that extent the impugned order cannot be sustained.