Intricacies of grant of status of an ‘Approver’, according to Prevention of Corruption Act

The concept of ‘approver’ was introduced in India by virtue of Sections 337 and 338 of the Code of Criminal Procedure, 1898. The same concept, post the recommendations of the Law Commission of India and after considering judicial pronouncements, was crystallised in the present Code of Criminal Procedure, 1973 (CrPC), and made a part of Chapter XXIV, in Sections 306 to 308.

A bare perusal of Sections 306 to 308, CrPC, enumerates the procedure to acquire the status of ‘approver.’ This process commences when a magistrate of First class, after considering the factual matrix, is convinced that the person to whom the status of ‘approver’ has to be bestowed upon, by tendering pardon, has made a full and true disclosure of facts within his knowledge about himself and every other person involved in the subject offence.

On the basis of legal provisions and judicial precedents, namely CBI v. Ashok Kumar Aggarwal & Anr; Jasbir Singh v. Vipin Kumar Jagi & Ors.; Prabhjot Ranjan Sarkar & Ors. V. The State of Bihar; State of UP v. Kailash Nath Agarwal & Ors; M.M. Kochhar v. State; and Randhir Basu v. State of West Bengal; the following principles of law emerge: -

1. The power of the court in granting pardon must be with an intention to obtain evidence that is directly or indirectly connected with the offence(s).

2. At any stage, a court of competent jurisdiction may decide to grant pardon. However, prior to issuing pardon, the court should be aware of the type of evidence the individual requesting a pardon is likely to offer, as well as the nature of his complicity and his role in the offence committed.

3. The court should unquestionably approve the tendering of pardon if the prosecution believes that the conviction of other offenders would be difficult without the approver's evidence.

4. The court may also consider an accused person's offer to serve as an approver, but typically the prosecution is the one that submits the request. The court should only utilise the authority when the prosecution joins the request, as the State may not require the testimony of the approver and may not want to grant pardon to any accused who may be the worst offender.

5. Pardons are always granted subject to complete and truthful disclosure of the entire set of events with the required specifics related to the events constituting the crime. Otherwise, separate legal proceedings under Section 308, CrPC must be started.

6. Once the proposed approver is given immunity and is designated as an approver, he is discharged, ceases to be an accused, and can only be questioned as a witness by the co-accused, unless the immunity is revoked for failing to disclose the whole truth.

Hence, while granting pardon, the main considerations are the character, antecedents, and culpability of the proposed approver, whether the testimony of the proposed approver is likely to advance the interest of justice and at what cost. However, the main objective remains to seek complete information about the crime, involvement of different persons, to collect evidence and to prove material facts to bring home the guilt of other culprits.

But when this concept is reviewed with respect to cases under Prevention of Corruption Act, 1988 (PC Act), as amended in 2018, a deeper contemplation is required.

To assess the credibility of the proposed approver in a case of PC Act, 1988 (as amended in 2018), Section 8 of the Act is of utmost relevance.

With the promulgation of the PC (Amendment) Act, 2018, a special provision has been created with respect to those who are bribe givers and claim to have extended bribes under duress but later repent. Section 8 clearly provides that if a person knowingly gives undue advantage to another person under compelling circumstances, then he shall report the matter to the investigating agency within 7 days from the date of giving such undue advantage.

Before 26.07.2018, Section 24 was in existence in the erstwhile PC Act 1988, which provided that a statement made by a person against a public servant for offences under Sections 7 to 11, 13, 15, (that he had offered or agreed to offer any gratification) shall not subject him to prosecution under Section 12 of the erstwhile PC Act 1988. But with the amendment becoming operative, Section 24 stood repealed from the statute book.

The PC Act, 1988 is a Special Act. Accordingly, its provisions would supersede the General Laws (CrPC). The Hon’ble Supreme Court in Ratan Babulal Lath v. State of Karnataka (SLP (Crl) No. 2987/2021) held that the PC Act is a complete Code. Consequently, at present, any bribe giver, as contemplated under Section 10 of PC Act, can claim statutory immunity of getting a pardon or getting his name erased from the errata of accused only if he reports the crime within 7 days from the date of offence.

In our opinion, and after going through various precedents, it is only in exceptional cases that the prosecution should move or the Magistrate should exercise the power of tendering pardon to an accomplice, especially if it is otherwise not possible to bring home the guilt of the other accused. However, in granting pardon, real culprits should not be left out in the hope of obtaining evidence against the other accused.  

Any other interpretation of Section 306 to Section 308 of the CrPC, 1973, would render the entire corresponding amendment redundant. As per a cardinal principle of interpretation, each word appearing in a statute should be given its ordinary meaning and it must be to facilitate the object and reasons of its inclusion in the statute.

In the matters relating to the PC Act, time is of the essence and the status of an approver is granted to the bribe giver only if the offence is reported within 7 days. Any contrary practice would be a violation of Section 8 of the Statute (PC Act) and would rather render the deliberate and conscious act of legislature to repeal Section 24 of the erstwhile PC Act, 1988 as ‘otiose’.

Harsh K Sharma is the Founder and Head of Prosoll Law. Lakshya Parasher is a Principal Associate at Prosoll Law.