In recent months, multiple arrests in the "Delhi Excise Policy Scam” have sparked a fiery debate on the process of approvership and grant of pardon to an accused and how his “motivated” statements impact the fate of co-accused persons.

The said issue has been a matter of serious deliberation pursuant to the arrest of the Delhi Chief Minister Arvind Kejriwal. The credibility of an approver/accomplice has been widely disparaged, laying emphasis on the “inducement” that is offered to an approver in order to make him a witness against other co-accused.

Who is an approver?

An approver is a former accused/accomplice who turns a prosecution witness when he/she decides to “support” the prosecution and is granted pardon by the court. In terms of Section 306 of the Code of Criminal Procedure (CrPC), the trial court at any stage of an inquiry or trial may tender a pardon to such an accused on the condition of his making a full and true disclosure of the entire circumstances of the offence which are within his knowledge. The grant of pardon can always be revoked on the “certificate of the Public Prosecutor” in accordance with the procedure laid down in Section 308 CrPC, if in the prosecutor's opinion, the approver has willfully concealed material or given false evidence.

An approver is an accomplice and a participant in the alleged crime who decides to push his once companions under the bus, in order to save himself. Thus, the courts have to be cautious before accepting 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:

“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...

..Ordinarily, however, an approver's statement has to be corroborated in material particulars bridging closely the distance  between  the crime and the criminal. Certain clinching features of involvement disclosed by an approver appertaining directly to an accused, if reliable, by the touchstone of other independent credible evidence, would give the needed assurance for acceptance of his testimony on which a conviction may be based.”

Evidentiary value of an approver/accomplice statement

An approver statement has to endure a “double test” in law. First, as any other witness, an approver has to be proved to be a reliable one, and second, his statement requires corroboration in the form of independent evidence. Even though the law in India does not hold the statement of an approver to be inadmissible, for its reliability, there is a need to look for corroboration before basing a conviction or even a prima facie finding of guilt on the basis of an approver statement.

Section 306 CrPC deals with tender of pardon to an accomplice, while the evidentiary value of the statement of an accomplice is discussed in Sections 133 and 114 of the Indian Evidence Act, 1872.

“133. Accomplice - 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.”

“Illustration (b) to Section 114

“the court may presume- …

(b) that an accomplice is unworthy of credit, unless he is corroborated in material particulars;”

While interpreting the aforesaid provisions, a Constitution Bench of the Supreme Court in Haricharan Kurmi v. State of Bihar held that the proper approach to adopt while examining the statement of an accomplice is to first consider the “other” evidence against the co-accused person, and if that evidence appears to be satisfactory and the court is inclined to hold that the said evidence may sustain the charge framed, the court may then turn to the confession of an accomplice, with a view to assure itself that the conclusion which it is inclined to draw from the “other” evidence is right. However, the court cannot “begin” its assessment of the guilt of the accused with the statement of an accomplice and base its judgment entirely on it without any evidence in support thereof.

Even though Section 30 of the Evidence Act provides for some weight to be given to the statement of a co-accused, it is significant to note that the same does not technically qualify as evidence in terms of Section 3 of the Act. The apex court in Surinder Kumar Khanna v. Intelligence Officer, DRI held that that the confessional statement of a co-accused cannot by itself be taken as a substantive piece of evidence against another co-accused and can at best be used or utilised in order to lend assurance to the court.

Approver versus accomplice

It is often argued by the prosecution that the statement of an approver stands on a higher pedestal than that of an accomplice, as in the case of an approver, the accused would have the chance to cross-examine him, whereas that cannot be the case with an accomplice, who continues to be an accused throughout the trial.

It is worth noting that an approver is lured by the agency and is given a “bait” in the form of “pardon” to make a particular statement against a co-accused. Thus, the intention of an approver who has bargained for immunity is quite unlikely to be transparent, thus making him equally unreliable, if not more, for the purpose of relying on his/her statement for a finding of guilt or prima facie involvement of a co-accused at the stage of bail.

Interestingly, the accused who have recently turned approvers in various high profile “scams” have not only been granted pardon as per Section 306 CrPC, but have also received the benefit of bail prior to becoming an approver, a concept which is beyond the statutory law of approvership. On the contrary, Section 306(4)(b) contemplates that the accused-turned-approver shall remain in custody till the end of the trial unless he is already on bail. To quote the provision:

“Section 306(4)(b) Every person accepting a tender of pardon made under sub- section (1) –

(b) shall, unless he is already on bail, be detained in custody until the termination of the trial.”

Therefore, in order to “strike a deal” with the accused, “concessions” are given for grant of bail to the proposed approver, before grant of pardon u/s 306 CrPC, to ensure that he/she remains out of jail. Such a concession must be construed as consideration in lieu of statement, hitting at the root of the approver’s reliability as a witness, and thus failing the double test.

While determining the involvement of a co-accused in an offence, specially at the stage of bail when personal liberty is at stake, with no opportunity to cross-examine the witness/approver, it is imperative that a statement of an approver undergoes rigorous scrutiny by a court of law. It must satisfy the test of corroboration by independent evidence and only then can a court consider it reliable for the purpose of ascertaining the involvement of the co-accused. What assumes significant importance in such a situation is the reliability of the statement, and not merely its admissibility, which alone does not satisfy the test of evidence in law.

Prabhav Ralli and Namisha Jain are Delhi-based lawyers and specialize in White Collar Crime practice.