Person Granted Pardon & Examined as Approver U/S 343 BNSS

Source: High Court of Jammu & Kashmir and Ladakh

Why in News?

Justice Mohd Yousuf Wani of the High Court of Jammu & Kashmir and Ladakh, in the case of Ajaz Ahmed v. UT of J&K (2026), held that once an approver has fully and truthfully complied with the conditions of pardon granted under Section 343 of the BNSS, 2023, he cannot be kept in mandatory custody until the end of trial.  

• The Court further held that the High Court retains inherent powers under Section 528 of BNSS to grant bail to such an approver in appropriate cases, balancing statutory intent with constitutional guarantees.

What was the Background of Ajaz Ahmed v. UT of J&K (2026) Case? 

• The petition was filed under Section 528 of BNSS, 2023, challenging the Trial Court's order rejecting the bail application of the petitioner, Ajaz Ahmed — a government teacher — in an FIR registered under Sections 120-B, 121, 122, 201, 7/25 of the Arms Act, and multiple provisions of the UAPA. 
• During investigation, it was established that the petitioner was indirectly involved under compulsion and threat from co-accused Gulshan Ahmed, and had no prior knowledge of the criminal intent or conspiracy involved in the recovery of arms, ammunition, and posters of a banned outfit from co-accused individuals. 
• After the filing of the final report/challan, the petitioner expressed willingness to give a truthful account of facts, conditional on receiving pardon under Section 306 of the Code.  
• The Chief Judicial Magistrate granted pardon, and the petitioner's statement was recorded as an approver. He was subsequently examined at trial, providing full and consistent testimony in both chief and cross-examination.  
• Despite this full compliance, the Trial Court rejected his bail application solely on the ground that Section 343(4)(b) of BNSS requires detention until termination of trial. This order was challenged before the High Court.

What were the Court's Observations? 

• The Court held that custodial detention of an approver under Section 343(4)(b) of BNSS is protective in nature — aimed at shielding the approver from co-accused retaliation and securing truthful testimony — and not a punitive measure. The provision must be read alongside the words "unless he is already on bail," indicating that detention is conditional, not absolute. 
• The Court further held that once an approver makes a full and true disclosure and complies with pardon conditions, the Trial Court retains discretion to release him on bail. Prolonged detention beyond this point serves no statutory purpose and violates the right to personal liberty under Article 21.  
• The High Court also clarified that its inherent powers under Section 528 of BNSS are available in appropriate cases to remedy such detention, and that any concerns regarding non-compliance by the approver can be addressed through separate proceedings under Section 308 of CrPC. 
• Quashing the Trial Court's order, the Court directed that the petitioner be considered for bail subject to reasonable conditions ensuring compliance with pardon terms and his personal safety.

What is Section 343 of BNSS? 

Section 343 of BNSS, 2023 — Tender of Pardon to Accomplice: 

• Section 343 of the Bharatiya Nagarik Suraksha Sanhita, 2023, empowers the Chief Judicial Magistrate or a First-Class Magistrate to tender pardon to any person suspected to be directly or indirectly involved in an offence, at any stage of investigation, inquiry, or trial.  
• The pardon is conditional upon the person making a full and true disclosure of all circumstances within his knowledge relating to the offence and every other person involved in it. 
• The section applies to offences triable exclusively by a Court of Session or Special Judge, and to offences punishable with imprisonment of seven years or more. 
• The Magistrate tendering pardon must record his reasons and whether the tender was accepted, and must supply a copy of such record to the accused free of cost upon application. 
• A person accepting the pardon must be examined as a witness before the Magistrate and in subsequent trial proceedings, and shall remain in custody until the termination of trial unless already on bail.  
• Once such a person is examined, the Magistrate must commit the case for trial — to the Court of Session or Special Judge where the offence is exclusively triable by such courts, or to the Chief Judicial Magistrate in all other cases, without conducting any further inquiry.