Under criminal law, an accomplice is someone who has participated in the commission of a crime either directly or indirectly by abetting or conspiring with the principal offender. While such a person is generally considered culpable, Indian law recognises the utility of their testimony in unravelling criminal conspiracies. Section 138 of the Bharatiya Sakshya Adhiniyam (BNA) 2023 deals explicitly with the evidentiary value of an accomplice’s testimony, stating that an accomplice shall be a competent witness against an accused and a conviction is not illegal merely because it is based on the uncorroborated testimony of an accomplice. However, the courts have consistently emphasized, through judicial precedents, the need for corroboration as a matter of prudence, despite the legal admissibility of such testimony. This legal principle plays a pivotal role when an accomplice is tendered a pardon under Section 343 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), turning them into an approver. The intersection of these provisions with bail considerations and evidentiary standards under the Indian Evidence Act makes the role of an accomplice both complex and crucial in criminal trials.

In the case of Ravinder Singh v State of Haryana, the Supreme Court (SC) defined “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….”

An approver is often an unreliable ally, if one can call him that at all, having secured immunity through a bargain, he bears the burden of proving his credibility before the Court. According to Section 119(b) of the BSA, 2023, the Court may presume that an accomplice is unworthy of credit unless corroborated in material particulars. This reflects a cautious approach rooted in judicial prudence, recognizing the inherent risk in relying solely on the testimony of a person who has participated in the commission of the crime and may have a vested interest, often having bargained for leniency or pardon.

However, while such testimony is legally admissible, especially under provisions like Section 343 of the BNSS, 2023, courts are not bound to act upon it unless it is supported by independent and credible corroboration on key aspects of the case. This ensures that convictions are not based on potentially self-serving or manipulated statements, preserving the fairness of the trial.

When we read both provisions together, it becomes clear that while an accomplice’s testimony should be approached with caution, it is not outright inadmissible. If the court finds the statement to be credible and corroborated by supporting evidence, it can form the sole basis for a conviction. Since the wording in the BSA remains the same as before, it’s reasonable to conclude that the legal position regarding the admissibility of an approver’s statement continues unchanged.

Section 343 OF The Bhartiya Nagarik Suraksha Sanhita, 2023 

While the primary objective behind granting a pardon is to ensure that the true offenders are punished and Justice is served. There are several reasons for this, ranging from a focus on merely securing convictions, instances of vindictive or politically motivated actions, undue delays or influence through promises of benefits in exchange for favourable statements.

Section 343(4)(b) of the BNSS mandates that a person who accepts a tender of pardon must remain in custody until the conclusion of the trial unless they are already out on bail. Criminal trials in India often span years, sometimes nearly as long as the maximum sentence for the offence itself. This requirement can make it impractical for an accused to turn approver unless there is an implicit understanding that bail will be granted beforehand. While the purpose behind granting a pardon and recording an approver’s statement before a Magistrate is to hold them accountable to their words, this process is not without its complications. 

In many cases, accomplices give statements driven by outside influences often just to escape the tag of being an accused and to gain some short-term relief. However, once the trial begins and they are brought in as witnesses, many of these approvers go back on their word. When that happens, it triggers a long and messy process; their trial has to be separated and the prosecution ends up losing the very advantage it hoped to gain by showing leniency, typically in the hope of using the approver’s testimony to strengthen the case against more serious offenders. 

There’s another important but often overlooked side to the story when it comes to cases involving multiple accused acting together, especially in situations alleging conspiracy. Every accused person in such cases often stands on different footing with varying roles and levels of influence.

Judicial Interpretation On Bail

The judiciary has taken a strict view on section 343 (4)(b) of the BNSS, which mandates that an approver, after being granted a pardon, must remain in custody until the conclusion of the trial, unless already on bail at the time of accepting the pardon. Refusal of bail or declining bail to approvers/accomplices even though they have cooperated with the investigation. The only rationale remains that it stems from the need to protect the sanctity of the approver’s testimony from the external influence and threats that raise questions about the credibility of the Justice. 

This strict interpretation has raised concerns in legal and academic circles. Critics argue that automatic detention until the end of the trial, irrespective of the approver’s cooperation, creates a discouraging atmosphere for potential approvers, especially in cases where trials stretch on for years.

In the case of State (Delhi Administration) v. Jagjit Singh & Anr.,, the SC emphasized that an approver must remain in custody until the conclusion of the trial as mandated by Section 306(4)(b) of the CrPC and held releasing an approver on bail prematurely could compromise the integrity of the prosecution’s case.

In State of Maharashtra v. Dhanendra Shriram Bhurle, the SC reiterated the same principle and held granting bail to an approver without exceptional circumstances could be detrimental to the administration of justice.

In the State of U.P. v. Rajesh Gautam & Ors., the SC held deviations from this mandate should only occur under exceptional circumstances and any such decision must be justified with compelling reasons.

The SC has from time to time taken a stern view regarding the grant of bail to approvers and emphasized the mandate under Section 343 (4)(b) of the BNNS. 

Effect Of Acquittal Of All Co-Accused On The Approver

If all co-accused in a case are acquitted, then the effect on the approver case would be substantial, particularly pertinent with section 343 (4) (b) of the BNSS. The pardon is premised on the approver making a full and true disclosure of all facts within their knowledge, and if the court finds that the approver’s evidence was unreliable, it shall lead to the conditions of the pardon not being fulfilled. As the court has been empowered under Section 347 BNSS, direct trial of the approver for the original offence and even for perjury if proven false evidence was narrated by the approver. The acquittal of all co-accused also indicates that the approver’s testimony lacked credibility or failed to inspire confidence in proving beyond a reasonable doubt. Also, assuming the court does not decline the approver’s statement but acquits the co-accused due to lack of corroborative evidence, then pardon shall still be preserved. However, the conclusion of the trial with the acquittal of all co-accused typically concerns a review of the approver’s scenario.

Article 21 And Bail 

The imperative custody condition under 343 (4) (b) of BNSS seems to conflict with Article 21, specifically when an approver is kept in jail for an indefinite period. It becomes more problematic in cases where the approver’s statement has already been recorded and there is no risk of the approver tampering. Declining bail in such instances results in unnecessary incarceration, which undermines the very essence of the right to life and personal liberty guaranteed under Article 21 of the Indian Constitution.

In Suresh Chand Bahri v. State of Bihar , the SC interpreting Section 306(4)(b) CrPC, held the provision aims to protect the approver from potential external influence. And the grant of bail to the approver does not affect or invalidate the pardon.

In Subramanian @ Ravi Subramanian vs State, the Madras High Court reasoned that Section 306(4)(b) of the CrPC stated an approver remaining in custody until the trial against the other accused is completed. This Rule is not meant to punish the approver for helping the prosecution, but rather to protect them from possible retaliation and pressure from their former associates, whom they have chosen to expose.

Moreover, under Section 482 of the CrPC, the High Court has the power to grant bail to an approver in exceptional cases. For instance, if the person’s detention becomes excessively long, especially beyond the sentence they might receive if convicted, then keeping them in custody could violate Article 21 of the Constitution, which guarantees the right to personal liberty. 

The Bombay High Court in Sharad Agarwal v State of Maharashtra, granted bail to Sharad Agarwal, an approver charged under the Maharashtra Control of Organised Crime Act and held as an approver had been granted a pardon and had not breached any conditions, the approver was entitled to bail. This was the first such instance of a Bail of approver charged under MCOCA.

In the case of Jalaluddin Khan v. Union of India, the SC reiterated the principle “bail is the rule, jail is the exception” applies even under stringent laws like the Unlawful Activities and Prevention Act. The Court is pressing on the principle of presumption of innocence until proven guilty.

Conclusion

The jurisprudence on the grant of pardon and the role of an approver serves an important purpose in uncovering the truth and securing convictions in criminal cases. The strict custody condition under Section 343 of the BNSS, intended to protect the integrity of the judicial process, must be applied with sensitivity to the principles of justice, fairness, and the liberty of the accused. A pressing issue with the practice of declining bail for approvers and keeping them behind bars until the end of the trial is that it may result in an unreasonably long period of detention. This acts as a strong disincentive for any accused person to come forward and cooperate with the investigation, thereby undermining the objective of encouraging truthful disclosure. In this regard, courts should adopt a more lenient approach toward granting bail to approvers once they have fulfilled their role and disclosed the truth.