Who is an approver, and what does the century-old law protecting approvers say?

In the ongoing case hearing of Arvind Kejriwal, his lawyer Abhishek Manu Singhvi, recently, questioned the veracity of the approvers’ statements that the Enforcement Directorate (ED) was used to build its case against the arrested Delhi chief minister. Singhvi said that the approvers were politically motivated, as at least one of them was standing for elections “for the ruling party” and another “is shown to have purchased (electoral) bonds”. Criminal law was being “turned on its head” by using the statements of accused-turned-approvers, Singhvi argued.
The judge hearing the case however said that the law was not a year old made just to “falsely implicate the accused.”
What exactly does the century-old law state?
An approver though never used or defined in criminal laws, is understood to be a person who is granted a pardon under CrPC in exchange for their testimony against other accused persons. Over time, this law, first written into the old 1898 Criminal Procedure Code, has been revised and strengthened with judicial precedents to enhance the reliability of approver testimony in criminal trials.
An approver, often regarded as an accomplice/accused-turned-witness, plays a complex role in criminal legal proceedings. Their testimony, obtained under Section 164 of the Code of Criminal Procedure (CrPC), is often pivotal in securing convictions against accused people. However, the nature of their involvement and the incentive of leniency in punishment raises significant concerns about the reliability and integrity of their statements.
Nevertheless, the law for approvers is fundamental to the prosecution process especially to gather vital information and evidence necessary for thorough investigation and prosecution. In return for disclosing crucial details, certain safeguards are instituted to protect the witnesses.
The Supreme Court, in the case of CBI v. Ashok Agarwal (2013), clarified that granting pardon to accomplices turned approvers is not automatic, but should be justified by a lack of evidence necessitating such action. Sections 306 and 307 of the CrPC outline the procedures for individuals to disclose offences and provide evidence against their co-accused, in exchange for receiving a pardon from the court — by the Magistrate in the pre-committal stages or by the Special Judge or Sessions Judge during the post-committal stages.
In the case of the former, the court must compulsorily examine the approver, unlike for pardons tendered in post-committal stages. The pardon may be conditional and the failure to comply with the
Upon being granted approver status and receiving a pardon, the accused is relieved of their status as an accused and transitions into a prosecution witness. However, if it is discovered during the trial that the approver has intentionally concealed crucial information or failed to adhere to the conditions of the pardon, the pardon can be revoked. In such instances, the accused may be prosecuted for the offence for which the pardon was granted separate from other accused, as well as for the offence of providing false evidence.
The law under Section 306(4) of the CrPC prevents the release of an approver before the conclusion of the trial. As clarified by the courts, the object is not to be punitive against the approver but is guided by the dominant object to protect the approver from possible indignation, rage and resentment of his associates in a crime to whom he was chosen to expose. It is in the spirit of fairness and justice that the courts have read the bar on release harmoniously with personal liberty and held that, detaining the approver indefinitely would be unfair and a deterrent to other witnesses seeking tender of pardon.
Kejriwal’s lawyer had raised a question on the recording of the statements of the approvers — a charge that the judge rubbished. “To doubt and aspersions regarding the manner of recording the statement of approver, amounts to casting aspersions on the judge and the court,” Justice Swarana Kanta Sharma said.
The statement of an approver is treated distinctly. An approver is examined, and his statement is recorded by a judge under Section 164, CrPC and not by the prosecuting or investigating agency. This emphasises the voluntariness of their confession and the potential consequences, including the use of their testimony against them. This framework is intended to safeguard against coercion and undue influence from investigating agencies.
However, despite the procedural safeguards, the credibility of approver statements is often questioned. As co-accused seeking leniency or pardon, there’s a natural suspicion that their testimony may be servient to self-interests or even fabricated to minimise their own culpability. The inherent conflict of interest — balancing self-preservation with the pursuit of justice — undermines the reliability of their accounts.
Therefore, the approver’s statement requires meticulous scrutiny, to be viewed with great circumspection and held to a higher threshold.
The courts have repeatedly held that it is unsafe to convict solely on the testimony of an approver, and would require reliability and relevant supporting facts and corroboration in its support.
In the case of Sarwan Singh Rattan Singh v. State of Punjab (1957), the apex court established a double test to verify the accuracy of statements provided by an accused turned approver. First, like all witnesses, an approver too must demonstrate reliability to the court. Second, the approver’s statement should be substantiated by relevant evidence, whether direct or circumstantial, to ensure its credibility. A similar proposition is found under the provisions of the Indian Evidence Act, which states that though an accomplice is a competent witness (Section 133), his statement is to be presumed unreliable unless there is relevant corroborating material (Section 114(b)).
In law, a tension emerges between the principles of the rule of law and practical application. While the rule of law acknowledges accomplices as admissible witnesses, enabling convictions solely on their testimony, practicality demands judicial caution. Hence, though not unlawful, convicting based solely on an accomplice’s testimony necessitates supplementary corroborative evidence to safeguard reliability.
Therefore, the evidentiary value of an approver testimony has to be weighed with meticulous care, involving a nuanced evaluation of numerous factors. The level and nature of corroboration necessary vary depending on the specific details of each case. While individual circumstances may hold significant weight, the fundamental principle of the law of approver and personal liberty should always remain paramount.