Escape a murder charge – legally!
Does the ‘approver’ clause in the justice system serve the cause of justice?
Many years ago in Calcutta there were multiple murders of four people in one family. The killer was the infamous Sudipa Pal, the daughter and granddaughter of the victims. The reason why she killed her parents and grandparents was because her mother had found out about her affair with her tutor. There was plenty of incriminating evidence against her…but Sudipa Pal got away by turning ‘approver.’
One cannot help but wonder: Is it right for a cold blooded murderer like Sudipa to get away with a crime as gruesome as this? Sudipa served the cyanide laced sweets to her parents and grandparents herself, but she got away by implicating two others – Ranadhir Basu, her lover and private tutor who masterminded the plot, and Krishnendu Jana who supplied the cyanide. The prosecution claimed that without Sudipa’s confession, it would have been impossible to convict any of the accused.
After this was revealed, light hearted banter made the rounds of the courts that criminals will now commit crimes with impunity, secure in the knowledge that they can buy their freedom by turning approvers.
If a criminal turns approver he can be ‘legally’ pardoned for any crime that he/she commits. As long as the criminal promises to spill the beans. Pardon is granted ‘with a view of obtaining the evidence of any person supposed to have been directly or indirectly concerned with or has been privy to any offence.’ Under Section 306 of the Criminal Procedure Code (CrPC), a ‘Tender of Pardon’ can be granted to a co-accused by the Chief Judicial Magistrate of District Courts, Metropolitan Magistrate of Metropolitan Courts, or the Magistrate of the First Class inquiring into or trying the case. Under Section 307 of the Code, pardon can be granted also by the Session or the Court of Special Judges after the case has gone for trial and before the judgment is delivered.
Says noted lawyer Dilip Dutta, ‘The need for an approver arises when the evidence is insufficient to convict the accused.’ It has to be proved in court beyond reasonable doubt that the accused is guilty of the crime. Thus, the prosecution persuades a partner in crime to give evidence against the others and in return the co-accused is granted a pardon. ‘Whether this is ethical or not is not the question,’ opines Dutta, ‘as without the approver’s help all the accused would have gone scot free.’
The reasonableness of the pardon thus depends entirely on the integrity and discretion of the court and the investigative agency. The court however takes into account all available information before an accused is granted pardon. ‘Detailed information about the case does not appear in the newspapers,’ says well known criminal lawyer Bholanath Sen. ‘In Sudipa’s case the court may have had the information that Sudipa was not in her normal frame of mind when she committed the murders and that she was being controlled by others. The decisions are taken by the judge are based on facts.’
Some legal experts fear that the ‘approver’ clause can be misused. Torture and blackmail have been reportedly used to pressurized criminals to confess and turn ‘approvers’. There are often suspicions that the investigating agency has coerced the accused into making confessions which are completely or partially concocted. For example, the sensational Jharkhand Mukti Morcha (JMM) MP’s pay-off case took a dramatic turn when Shailendra Mahato, former MP, retracted his previous statement that he, alongwith other JMM MP’s had taken bribes to vote for the Congress in July 1993. He alleged that he was being coerced into turning ‘approver’. Finally, he did decide to turn ‘approver.’
The chances of a criminal lying to save himself is also highly possible, but the law does not discount his testimony just because he is a criminal. To safeguard against criminals giving false confessions, their statements are corroborated by the evidence. ‘An approver is not only cross-examined by the magistrate, he/she has to depose before the trial court,’ says Dutta. ‘If he is found lying it can be exposed. Other evidence in the case has to authenticate his statement.’ If it is found that the approver is lying there is a provision in the law for the pardon to be revoked. Section 308 of the CrPC states that: If a person who has been granted pardon gives false evidence then the person will be tried for that offence and also for the offence of giving false evidence.
Senior barrister Sudipto Sarkar says, ‘The main objective of the law is to catch as many wrong-doers as possible and if the approver can help achieve this objective, it will take his help.’ Like others of his profession, Sarkar feels that the clause is absolutely essential for the cause of justice.
(This article was published in The Telegraph, Calcutta, soon after the Sudipa Pal murder case, which took place in the nineties)
Note:Sudipa Pal was freed by the courts. Today her whereabouts are not known.
Ranadhir Basu, Sudipa’s lover and private tutor was given the death sentence by the Calcutta High court in 1998.
Krishnendu Jana who supplied the cyanide was allowed to go free for want of sufficient evidence.
Senior Bharatiya Janata Party leader Shailendra Mahato is very much in Indian politics today and is the president of the Lok Adhikar Morcha (2006.)
Today if criminals turn approvers, the public or the press does not necessarily get to know of it. It happens behind the scenes.