Sections 306–308 CrPC vs Sections 343–345 BNSS — Tender of Pardon to Accomplice (Approver)

In India, Sections 343 to 345 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) replaced Sections 306 to 308 of the Code of Criminal Procedure, 1973 (CrPC) from 1 July 2024. The approver scheme is unchanged; the Metropolitan Magistrate drops out and Special Judges under "any other law" replace the 1952 Act reference.

At a glance

These are procedural provisions with no First Schedule classification. Section 354 BNSS (CrPC 316) keeps the rule that no influence by promise or threat may be used to induce an accused to disclose or withhold anything, "Except as provided in sections 343 and 344".

What changed

• Modified (narrowed) — Section 343(1) (CrPC 306(1)): "the Chief Judicial Magistrate or a Metropolitan Magistrate at any stage of the investigation or inquiry into, or the trial of, the offence" becomes "the Chief Judicial Magistrate at any stage …". Section 6 BNSS lists the classes of Criminal Courts as Courts of Session, Judicial Magistrates of the first class, Judicial Magistrates of the second class and Executive Magistrates; the word "Metropolitan" does not appear in the BNSS Gazette text.
• Expanded — Section 343(2)(a) and 343(5)(a)(ii) (CrPC 306(2)(a) and 306(5)(a)(ii)): "the Court of a Special Judge appointed under the Criminal Law Amendment Act, 1952" becomes "the Court of a Special Judge appointed under any other law for the time being in force". On a reading of the text, the section now reaches any statute that appoints Special Judges, not only the 1952 Act.
• Identical — Section 343(1) condition, (2)(b), (3), (4) and (5): the condition of "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"; the seven-year threshold; the duty to record reasons and whether the tender was accepted, with a free copy to the accused on application; examination of the approver as a witness and his detention in custody; and committal "without making any further inquiry".
• Identical — Section 344 (CrPC 307): the same words.
• Minor edit — Section 345 (CrPC 308): cross-references are renumbered — "section 306 or section 307" becomes "section 343 or section 344"; "section 195 or section 340" becomes "section 215 or section 379"; "section 164" becomes "section 183"; "sub-section (4) of section 306" becomes "sub-section (4) of section 343"; "this Code" becomes "this Sanhita".

Statutory text (relevant extract)

Extract, Section 306(1) and (2)(a) CrPC (repealed from 1 July 2024):

… the Chief Judicial Magistrate or a Metropolitan Magistrate at any stage of the investigation or inquiry into, or the trial of, the offence, and the Magistrate of the first class inquiring into or trying the offence, at any stage of the inquiry or trial, may tender a pardon …

(a) any offence triable exclusively by the Court of Session or by the Court of a Special Judge appointed under the Criminal Law Amendment Act, 1952 (46 of 1952);

Extract, Section 343(1) and (2)(a) BNSS:

… the Chief Judicial Magistrate at any stage of the investigation or inquiry into, or the trial of, the offence, and the Magistrate of the first class inquiring into or trying the offence, at any stage of the inquiry or trial, may tender a pardon to such person on condition of his 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.

(a) any offence triable exclusively by the Court of Session or by the Court of a Special Judge appointed under any other law for the time being in force;

How it works

1. Who may tender pardon, and when (Sections 343(1) and 344).

2. Which offences (Section 343(2)). Offences triable exclusively by the Court of Session or a Special Judge, and offences punishable with imprisonment which may extend to seven years or more.

3. The condition. A full and true disclosure of everything within the person's knowledge about the offence and every other person concerned, "whether as principal or abettor". A pardon under Section 344 is tendered "on the same condition".

4. Record (Section 343(3)). The Magistrate records reasons and whether the tender was accepted, and gives the accused a copy free of cost on application.

5. Examination and custody (Section 343(4)). The approver "shall be examined as a witness in the Court of the Magistrate taking cognizance of the offence and in the subsequent trial, if any", and "shall, unless he is already on bail, be detained in custody until the termination of the trial".

6. Committal (Section 343(5)). After the approver's examination, the Magistrate taking cognizance commits the case, without further inquiry, to the Court of Session (if exclusively triable there or if the Magistrate is the CJM) or to the Special Judge (if exclusively triable by that Court); in any other case the CJM tries it.

7. Breach (Section 345). If the Public Prosecutor certifies that the approver wilfully concealed anything essential or gave false evidence, the approver may be tried for the offence, any connected offence, and giving false evidence. Two provisos: no joint trial with the other accused, and no trial for giving false evidence without the sanction of the High Court (Sections 215 and 379 BNSS do not apply to that offence). His statement recorded by a Magistrate under Section 183 or by a Court under Section 343(4) may be used against him. Before the charge is read (Sessions) or before prosecution evidence (Magistrate), the Court asks whether he pleads compliance; if he does, the prosecution must prove non-compliance, and if the Court finds compliance it "shall … pass judgment of acquittal" (Section 345(3) to (5)).

Accomplice evidence. The approver's testimony is weighed under the Bharatiya Sakshya Adhiniyam, 2023 (BSA). Section 138 BSA reads: "a conviction is not illegal if it proceeds upon the corroborated testimony of an accomplice"; Section 133 of the Indian Evidence Act, 1872 read "not illegal merely because it proceeds upon the uncorroborated testimony". See the accomplice evidence page for that change.

What this means in practice

For the prosecution

• Apply to the CJM during investigation, or to the Magistrate of the first class or the committal court at the stages Sections 343 and 344 allow. Metropolitan Magistrates no longer appear in the list.
• After a pardon under Section 343(1), examine the approver as a witness before the Magistrate taking cognizance, then commit. The Supreme Court described this step as mandatory (Suresh Chandra Bahri, as discussed in A. Srinivasulu, para 71).
• Where a Special Judge takes cognizance directly under a special law, the pre-committal examination does not arise (A. Srinivasulu, para 76).
• Issue the Section 345(1) certificate only where the approver has wilfully concealed anything essential or given false evidence; the High Court's sanction is needed to prosecute him for false evidence.

For the co-accused

• Ask for a free copy of the Magistrate's record of reasons and acceptance under Section 343(3).
• Use the approver's pre-committal examination to prepare cross-examination at trial. The Supreme Court has said the purpose of the double examination is to let the accused know the approver's evidence at the preliminary stage (A. Srinivasulu, para 78).
• If the approver's pardon is forfeited, his evidence is to be ignored in the co-accused's trial (Abu Salem, para 17).

For the approver

• Custody until the end of the trial is the rule unless already on bail (Section 343(4)(b)).
• If the Public Prosecutor certifies breach, plead compliance at the outset of the separate trial; the burden shifts to the prosecution (Section 345(3)).

Judgments that still matter

Ranadhir Basu v. State of West Bengal, [2000] 1 S.C.R. 646 (2000 INSC 52) — 7 February 2000. G.T. Nanavati and S.N. Phukan JJ. rejected the argument that an approver examined under Section 306(4) CrPC in the Magistrate's chamber, without cross-examination, vitiated the trial. The Court held that the provision does not require the approver to be examined in open court in the accused's presence with an opportunity to cross-examine, since "The proceeding which takes place before the Magistrate at that stage is neither an inquiry nor a trial"; it also found on the record that the accused had been present and had declined to cross-examine (para 7). The conviction for four murders was confirmed but the death sentence was reduced to imprisonment for life (para 11). Section 343(4) BNSS repeats the words construed.

State of Maharashtra v. Abu Salem Abdul Kayyam Ansari & Ors., [2010] 12 S.C.R. 204 (2010 INSC 671) — 5 October 2010. P. Sathasivam and R.M. Lodha JJ. allowed the State's appeal against a Designated Court order permitting the defence to cross-examine an approver (pardoned under Section 307 CrPC) whose pardon had been forfeited on the Public Prosecutor's Section 308 certificate. The Court held that once an accomplice is granted pardon he "stands discharged as an accused and becomes witness for the prosecution", and once pardon is forfeited he reverts to the position of an accused, liable to be tried separately, and his evidence "has to be ignored in toto" in the trial of the co-accused, though it may be used against him in his separate trial (para 17). There was therefore no occasion for the defence to cross-examine him (para 24). Sections 344 and 345 BNSS repeat the provisions construed.

A. Srinivasulu v. The State Rep. by the Inspector of Police, [2023] 10 S.C.R. 11 (2023 INSC 971) — 15 June 2023. V. Ramasubramanian and Pankaj Mithal JJ. set out the stages at which each authority may tender pardon under Sections 306 and 307 CrPC (paras 61-62), and explained that Suresh Chandra Bahri had held Section 306(4)(a) mandatory and its breach to render the committal order illegal, while applying a prejudice test where the defect was cured before trial (paras 71-73). It held that where a Special Court takes cognizance directly, the approver's examination in the Magistrate's court under Section 306(4)(a) "does not arise" (para 76), and found no violation of that procedure on the facts (para 79). The appeals were nonetheless allowed and the appellants acquitted on other grounds (para 139).

Which law applies to your case

Section 531(2)(a) BNSS provides that an investigation, inquiry, trial or appeal pending immediately before 1 July 2024 is continued under the CrPC "as if this Sanhita had not come into force". On a reading of that text, a pardon tendered in such a pending matter is governed by Sections 306 to 308 CrPC; matters begun on or after 1 July 2024 follow Sections 343 to 345 BNSS. See which law applies to an offence before 1 July 2024.

Frequently asked questions

What is the BNSS equivalent of Section 306 CrPC? Section 343 of the Bharatiya Nagarik Suraksha Sanhita, 2023 replaces Section 306 CrPC. The Chief Judicial Magistrate may tender a pardon at any stage of the investigation, inquiry or trial, and a Magistrate of the first class inquiring into or trying the offence may do so at any stage of the inquiry or trial, on condition of a full and true disclosure. Section 307 CrPC becomes Section 344 BNSS and Section 308 becomes Section 345.

What changed in the pardon provisions under the BNSS? Section 343(1) BNSS no longer names a Metropolitan Magistrate, a class of court that does not appear in the BNSS. Section 343(2)(a) and 343(5)(a)(ii) refer to a Special Judge 'appointed under any other law for the time being in force' instead of one appointed under the Criminal Law Amendment Act, 1952. The rest of Sections 343 to 345 carries over the CrPC text, with renumbered cross-references.

For which offences can a pardon be tendered? Under Section 343(2) BNSS, pardon may be tendered for any offence triable exclusively by the Court of Session or by the Court of a Special Judge appointed under any other law for the time being in force, and for any offence punishable with imprisonment which may extend to seven years or with a more severe sentence.

Is an approver kept in custody? Yes, unless already on bail. Section 343(4)(b) BNSS says every person accepting a tender of pardon under sub-section (1) shall, unless he is already on bail, be detained in custody until the termination of the trial. Under Section 343(4)(a) he must be examined as a witness in the Court of the Magistrate taking cognizance and in the subsequent trial.

Must the accused be present when the approver is examined before committal? In Ranadhir Basu v. State of West Bengal (2000) the Supreme Court held that Section 306(4) CrPC, now Section 343(4) BNSS, does not require the approver to be examined in open court in the presence of the accused with an opportunity to cross-examine at that stage, because the proceeding before the Magistrate at that stage is neither an inquiry nor a trial.

What happens if the approver breaks the conditions of pardon? Under Section 345(1) BNSS, if the Public Prosecutor certifies that the approver has wilfully concealed anything essential or given false evidence, he may be tried for the offence, any connected offence and the offence of giving false evidence, but not jointly with the other accused. In State of Maharashtra v. Abu Salem (2010) the Supreme Court held that once pardon is forfeited on such a certificate the approver reverts to the position of an accused, and the co-accused cannot be permitted to cross-examine him.

Can the approver defend himself at his own trial? Yes. Section 345(3) BNSS entitles him to plead that he complied with the condition of the pardon, and the prosecution must then prove non-compliance. Under Section 345(5), if the Court finds that he complied, it shall pass judgment of acquittal notwithstanding anything in the Sanhita. His statement recorded under Section 183 or Section 343(4) may be used against him at that trial.

Related

• Section 133 Evidence Act vs Section 138 BSA — Accomplice Evidence
• Hostile witness and accomplice evidence under the BSA
• Section 164 CrPC vs Section 183 BNSS — Confessions and Statements
• Sessions trial: CrPC 225-237
• Section 319 CrPC — summoning additional accused
• CrPC to BNSS master table

Sources

• Bharatiya Nagarik Suraksha Sanhita, 2023 (Gazette text): Sections 6, 183, 215, 343, 344, 345, 354, 379 and 531.
• Code of Criminal Procedure, 1973 (India Code text): Sections 306, 307, 308 and 316.
• Bharatiya Sakshya Adhiniyam, 2023 (Gazette text): Section 138; Indian Evidence Act, 1872: Section 133.
• Judgments read in full text: Ranadhir Basu v. State of West Bengal (2000_1_646_658_EN.md); State of Maharashtra v. Abu Salem Abdul Kayyam Ansari (2010_12_204_222_EN.md); A. Srinivasulu v. The State Rep. by the Inspector of Police (2023_10_11_73_EN.md).

This page explains the statutory text and the judgments cited as they stand. It is not legal advice; for a specific case, consult an advocate.