Section 308 CrPC: Trial for Breach of Pardon Conditions - Section 345 BNSS
Section 308 of the Code of Criminal Procedure, 1973 provides safeguards and a special trial procedure when a person granted conditional pardon is alleged to have withheld material facts or given false evidence. The corresponding current provision is Section 345 of the Bharatiya Nagarik Suraksha Sanhita, 2023.
Meaning and purpose of the provision
A tender of pardon is a conditional offer to a person believed to be involved in an offence, ordinarily to obtain full and truthful evidence about the offence and other participants. A person who accepts it is often called an approver. The protection is conditional, not unconditional immunity.
Under Section 308 CrPC and Section 345 BNSS, alleged wilful concealment of essential information or false evidence can lead to a separate prosecution. The law also protects the person by requiring proof of breach and by providing for acquittal if compliance is established.
Section 308 CrPC - statutory provisions
The following is the substance of the five subsections and both provisos of the earlier Code of Criminal Procedure, 1973, retained here for legal reference.
(1) Where, in regard to a person who has accepted a tender of pardon made under section 306 or section 307, the Public Prosecutor certifies that in his opinion such person has, either by wilfully concealing anything essential or by giving false evidence, not complied with the condition on which the tender was made, such person may be tried for the offence in respect of which the pardon was so tendered or for any other offence of which he appears to have been guilty in connection with the same matter, and also for the offence of giving false evidence.
First proviso: Such person shall not be tried jointly with any of the other accused.
Second proviso: Such person shall not be tried for the offence of giving false evidence except with the sanction of the High Court, and nothing contained in section 195 or section 340 shall apply to that offence.
(2) Any statement made by such person accepting the tender of pardon and recorded by a Magistrate under section 164 or by a Court under sub-section (4) of section 306 may be given in evidence against him at such trial.
(3) At such trial, the accused shall be entitled to plead that he has complied with the condition upon which such tender was made; in which case it shall be for the prosecution to prove that the condition has not been complied with.
(4) At such trial, the Court shall:
- If it is a Court of Session, before the charge is read out and explained to the accused; or
- If it is the Court of a Magistrate, before the evidence of the witnesses for the prosecution is taken,
ask the accused whether he pleads that he has complied with the conditions on which the tender of pardon was made.
(5) If the accused does so plead, the Court shall record the plea and proceed with the trial and it shall, before passing judgment in the case, find whether or not the accused has complied with the conditions of the pardon, and, if it finds that he has so complied, it shall, notwithstanding anything contained in this Code, pass judgment of acquittal.
Section 345 BNSS - current legal position
Section 345 BNSS substantially continues the safeguards and procedure of Section 308 CrPC. References have been updated to the BNSS provisions:
| Earlier CrPC reference | Corresponding BNSS reference | Subject |
|---|---|---|
| Section 306 | Section 343 | Tender of pardon to accomplice |
| Section 307 | Section 344 | Power to direct tender of pardon |
| Section 308 | Section 345 | Trial for breach of pardon conditions |
| Section 164 | Section 183 | Recording confessions and statements |
| Sections 195 and 340 | Sections 215 and 379 | Prosecution safeguards and related procedure |
When can a pardoned accomplice be prosecuted?
1. Public Prosecutor's certification
The Public Prosecutor must certify an opinion that the person wilfully concealed an essential fact or gave false evidence in breach of the condition of pardon. Certification does not itself establish guilt.
2. Separate trial and High Court sanction
The person cannot be tried jointly with the other accused. A prosecution for giving false evidence under this provision additionally requires High Court sanction. The special statutory exception to the ordinary procedural provisions applies.
3. Earlier statements may be evidence
Statements recorded under Section 164 CrPC or in the proceedings specified in Section 306(4) CrPC may be used against the person at the subsequent trial. The BNSS equivalents are Sections 183 and 343(4).
4. Right to plead compliance
The court must ask the accused at the prescribed stage whether the pardon conditions were fulfilled. If compliance is pleaded, the prosecution bears the burden of proving non-compliance.
5. Finding before judgment
The court must determine compliance before passing judgment. If it finds that the person complied with the conditions, it must acquit the person under this special procedure.
Practical example
An accomplice receives a conditional pardon to testify truthfully in a prosecution involving several participants. If the Public Prosecutor later certifies that the accomplice deliberately concealed a material participant, the accomplice may face a separate trial. However, the prosecution must establish the breach if the accomplice pleads compliance; the earlier grant of pardon cannot simply be ignored without following the prescribed procedure.
Frequently asked questions
What is Section 308 CrPC?
It provides the procedure for trying a person who accepted a conditional pardon but is alleged to have concealed essential facts or given false evidence.
What is the corresponding BNSS provision?
Section 345 of the Bharatiya Nagarik Suraksha Sanhita, 2023 corresponds to Section 308 CrPC.
Does breach of pardon automatically result in conviction?
No. The prosecution must prove non-compliance if the accused pleads that the conditions were fulfilled.
Can an approver be tried jointly with the other accused?
No. The provision requires a separate trial.
Is High Court sanction necessary for a false-evidence charge?
Yes. A trial for giving false evidence under this special procedure requires the sanction of the High Court.
Official legislation and references
Consult the official Bureau of Police Research and Development BNSS reference PDF for the CrPC-to-BNSS correspondence, and India Code for authoritative legislation and amendments. The relevant BNSS provisions are Sections 343, 344, 345 and 531.
Related reading: Section 306 CrPC - Tender of pardon and Section 307 CrPC - Court's power to grant pardon.
This article provides general legal information, not advice for a particular case. Check the applicable statutory text, rules and current judicial decisions.