Table of Contents
Approver: An “unworthy friend?
The last couple of months has seen a number of arrests being made in the ongoing “Delhi Excise Policy Scam”. These arrests have raised the issue of whether accused persons who admit to guilt and help in the prosecution of co-accused persons will be granted pardon or not. This calls into question whether an accused’s statement when weighed in court can be called “motivated”.
The said question has been a subject of deep consideration in wake of the detention of the Delhi Chief Minister Arvind Kejriwal. The credibility of a credible witness/accomplice has been almost discredited, with “inducement” being the only aspect that is highlighted to be capable of “wiping off” other co-accused in this case.
Who is an approver?
Prosecution Witness is an alleged co-accused who goes out of his way (possibly as a deal) to help the state in its pursuit and convinces the court to look the other way In Section 306 of the Code of Criminal Procedure (CrPC), the trial court at any stage of the inquiry or trial may offer a pardon to such an accused on the condition that he makes a full and true disclosure of all the circumstances of the offense that are within his knowledge.
The pardon can be revoked by a certificate given by the Public Prosecutor at any time which is also carried out under the direction of Section 308 CrPC if according to the opinion of the prosecutor the particular approver purposely concealed the material or falsely gave the evidence.
An approver is a section of a criminal pair that is always ready to sacrifice an accomplice, as he or she becomes the most convenient target for being thrown under a bus to save the co-conspirator. Consequently, the courts have to be very cautious when accepting the evidence of such an accomplice who is an “unworthy friend” and has “bargained for his immunity” with the agency concerned.
In this regard, it would be relevant to refer to the following observation of the Supreme Court of India in Ravinder Singh v. State of Haryana:In this regard, it would be relevant to refer to the following observation of the Supreme Court of India in Ravinder Singh v. State of Haryana:
“Only one assaysor is really a friend unworthy of recognition, if any at all and if this chanceller is more self-centered than anyone else must justify his value for credibility for court if at all possible.”
. . .A bridging of these gaps can mostly be done by a corroborating statement in the material particulars which connect closely when the crime and the criminal are placed side by side. The main evidence that an approver could have given against an accused was the one that was reliable and that was based on other independent credible evidence, and if this evidence was confirmed by other means, it would give you the needed assurance for acceptance of his testimony and on which a conviction may be based. ”
To put it clearly, the value of an approver/accomplice statement as an evidence becomes obvious.
The author’s statement of approver should stand a “twin test” in legal practice. Firstly, as any other witness, and approver, he has to be established as a reliable one, and secondly, his statement has to be corroborated in the form of independent evidence. In India, the law does not declare the content of the approver as inadmissible in the trial, however,considering the reliability of the statement of the approver, it is important to find out corroborations before using approved testimony to successfully charge conviction or even prima facie finding of guilt.
Pardon of a partner is taken care of by Section 306 CrPC and the values of the evidence of an accomplice are regulated through Section 133 and 114 of the Evidence Act, which was constituted in 1872.
“134. Accomplice – An accomplice shall be a competent witness against an accused person; and a conviction is not illegal merely because it is based on the uncorroborated testimony of an accomplice. ”
“Illustration (b) depicts robbers carrying out their criminal transformations.
“If the court is of the opinion that an individual is or may be a member of the organisation and is sponsored by the organisation, the persons, funds and assets that are controlled by the member to.
(b) that an accomplice is not worthy of credence unless he is corroborated in material particulars.
With the examination of above-stated section, the Supreme Court awarded a plain reading to it, in Namkeen Haricharan Kurmi vs. State Of Bihar held that, the circumstances of the case be first read keeping aside the confessional statement to see whether the “other” evidence are enough to support the charge against the co-accused at this moment and as the court is convinced that the “other” evidence are enough Yet, the court must not make any de facto presumptions about the defendant’s guilt by simply starting its assessment with the testimony of an accomplice solely. Instead, the court must have some supportive evidence to rely on.
Though Section 30 of the Evidence Act allows some weight to be given to the statement of a co-accused, it is important to note that the same cannot be considered as evidence in the sense that is given in Section 3 of the Act. The numero uno court in the docket of the case Surinder Kumar Khanna v. Intelligence Officer, DRI had observed that the confessional statement by the co-accused would not stand all the trials of the fire and could be used for no other purpose than merely as an adjunct to the conviction.
Approver versus accomplice
Prosecution defence is always of the opinion that statement of approver must be India before exalted pedestal of that of accomplices since in the case of approver accused party would cross examine him but that can never be possible with accomplices who throughout the trial remain accused.
It is interesting to note that an approver is tricked by the agency and is given a “bait” in the form of “pardon” to make a particular statement against a co-accused. Therefore, the purpose behind an approver and negotiating for the immunity is likely to hide the true aim, and as result if the approver is used as evidence for the finding of guilt or to work as prima facie for the involvement of a co-accused, at the time of bail hearing, such source will most likely prove to be unreliable and not believable.
It is so fascinating that the same judicial system which pardons the offenders under section 306 CrPC has earlier also provided them the benefit of bail prior turning them as an approver. Actually, approvershp concept in the law is itself promising. On the other hand, Section 306(4)(b) addresses that the accused-turned-approver shall still be in custody until the end of the trial unless he is already on bail. To quote the provision:
Article 306 (4b) states that, “After accepting to pardon made under sub-section (1), every person shall be served with written notice.”
(b) except upon his already enacted scrutiny, until the trial, he will be confined. ”
So, in order to “strike a deal” with the accused, “concessions” are given for bail to the proposed approver, before proof of pardon u/s 306 CrPC, to ensure that he/she does not go to jail. The grant of the condition should be regarded as the neutation which rejects soundness of fairness, and then it belongs to the directly ineffective in two-court system.
The process of finding a co-accused in an offence has to be done with utmost care since it is at the stage of bail when you assume the personal liberty and no option for cross examination of the accused is available. So, the utmost care is needed to be taken by the judge at the time of trial. The corroborating evidence from the independent sources should be the only basis of the court for a decision on the involvement of the co-accused. The admissibility of a statement has great significance in these circumstances whereas the reliability of it is of utmost importance. Only reliability of the evidence installed in law is allowable for this purpose.
Prabhav Ralli and Namisha Jain, the Delhi based lawyers work in the White Collar Crimes practice area. Their fields of expertise include a wide variety, from the detailed case studies, to the comparative researches of drug trafficking and money laundering.
