Here’s how Supreme Court has Ruled on Approver Witnesses

The legal and political commentariat is abuzz with the arrest and investigation of former Finance Minister, P Chidambaram. Many analysts are critical of the unusual haste in his arrest and others suspect political vendetta. The public discourse has not engaged with the vexed questions of impartiality and fairness in law enforcement and criminal justice that this case—and many others—raise.

These questions arise from the very basis of our legal system, in which an accused is entitled to a fair trial. In our democratic legal system, legal principles dictate how evidence is entertained, how trials are conducted and verdicts pronounced.

The main witness against former finance minister P Chidambaram in the INX Media case is co-accused and now approver, Indrani Mukerjea. In this context, the history of testimonies of approver witnesses is worth examining. The reliability and efficacy of an approver witness is based on how the prosecution, police, investigative agencies and judiciary use this tool to nab criminals. More so because an approver witness is considered liable to toe the line of investigative agencies.

This has led to a long history of adjudication in Indian courts including the Supreme Court on approver witnesses. The sheer range of such cases in which this practice has been employed is breathtaking.

One previous high-profile case is of the alleged fake encounter of Ishrat Jahan. David Headley, a conspirator in the Mumbai terror attacks, became an approver witness in her case after he picked her name from options given to him by public prosecutor Ujjwal Nikam.

Headley was testifying about the attack on 26/11 when he was asked about “female suicide bombers in the LeT.” His testimony is significant to the narrative. The killing of a college student produces a starkly different public reaction compared to that of a suspected terrorist. Yet, Jahan’s mother’s advocate Vrinda Grover has asserted that there is “nothing to link Ishrat at all to any terror group or criminal activity.”

Both cases—which could not vary more in scope or subject—represent issues that are inherent to the practice of adjudicating on the testimony of approver witnesses. Naturally, the possible incentives for an approver to acquiesce to the presumed institutional bias of investigative agencies makes the accused vulnerable.

Law and rulings on approver witness

Reading Section 133 of the Evidence Act along with Section 114(b) makes it clear that the most important issue regarding accomplice evidence is corroboration. The general rule regarding corroboration states that a conviction based on the uncorroborated testimony of an accomplice is not illegal. Nor is it safe to rely upon. Therefore, judges and juries must exercise extreme caution while considering it.

The Supreme Court has laid down a “double test” in Sarwan Singh v. State of Punjab, 1957, to establish a procedure to determine reliability of approver testimony. First, the court has to satisfy itself that the statement of the approver is “worthy of credit”. Along with this, there must be evidence—other than the statement of the approver—that he or she played a role in the crime. This would serve to satisfy whether the evidence is coming from an actual accomplice or not.

Mahadeo v. The King, 1936, a Privy Council decision, is relevant in this regard. As Blackstone's commentaries say, “Mere acts of charity which relieve or comfort a felon, but do not hinder his apprehension and conviction nor aid his escape, do not render one an accessory after the fact.”

Thus, the approver must be proved to have “done some act to assist the felon personally,” as the Supreme Court noted in its ruling in State of Bihar v Srilal Kejriwal. The court was citing an observation made in R. v Chappie, 1840. “The mere fact that one had knowledge that a crime had been committed, and that he concealed or failed to disclose such knowledge, does not render him an accomplice,” the Supreme Court said in Kejriwal.

Second, the court seeks corroboration of the approver’s evidence with respect to the role of other accused in the crime. This evidence has to be of such nature as to connect the other accused with the crime. In Jnanendranath Ghose v. State of West Bengal, 1959, an accused tried for murder was found guilty by a jury, based on evidence supplied by an approver. The material particulars of this evidence were corroborated. It was contended during an appeal that the jury was not informed about the “double test” laid down in Sarwan Singh.

The Supreme Court notes in its ruling in Ghose that such corroboration need not be direct evidence that the accused had committed the crime. “...it is sufficient if it is merely circumstantial evidence of his connection with the crime.” Accordingly, as it found no infirmities in the evidence presented at the trial stage, the court dismissed the appeal.

However in Indar v R, the Supreme Court raised concerns over how there can be misuse of approver witness. The court observed that the testimony of “a man of very low character, who has thrown to the wolves his erstwhile associates and friends in order to save his own skin and who is a criminal and has purchased his liberty by betrayal must be received with great caution.”

Apart from corroboration and reliability, the evidence of an accomplice can be rejected if it varies from evidence gathered from another witness on a material point. The accomplice, in such cases, can be presumed to have acted under duress. The judges would then view his role with suspicion.

In Ranadhir Basu v. State of West Bengal, 1967, the testimony of an approver was not accepted in respect of one of the co-accused for want of independent corroboration. Yet, the Supreme Court did not believe that this introduced any infirmity in the evidence the approver supplied, nor did it create a doubt regarding her reliability.

In Kejriwal, the Supreme Court was of the opinion that the character of an accomplice is of critical importance while appreciating his evidence as an approver. The trial court had held that the approver was a witness of no status and “a mercenary man”.

“If the approver is a competent witness, which undoubtedly he is, the mere fact that he was a man of low status should not be adequate to condemn his evidence. It is not quite clear what the learned Judge has meant by describing him as mercenary… The charge that he was actuated by mercenary ends in coming out of his hiding has little justification,” the Supreme Court says.

Yet, the Supreme Court also made it clear in this case that an approver’s evidence “must show that he is a reliable witness and that is a test common to all witnesses. If this test is satisfied the second test which still remains to be applied is that the approver’s evidence must receive sufficient corroboration. This test is special to the cases of weak or tainted evidence like that of the approver.”

The court then held that the witness in Kejriwal qualified as approver but “...the evidence of this witness is not of much probative value since he has deposed only to the statement of the approver himself. There is, however, no bar to the statement of the approver being used as corroboration, whatever be the value of his evidence in court.”

The principal reasons for holding the testimony of an accomplice witness unworthy are, therefore, the likelihood of their having made false claims in order to shift the guilt away from themselves. Second, an accomplice is a partcipes criminis. Therefore, there is a strong presumption that he has low morality and will disregard the sanction of his oath. Finally, an accomplice supplies evidence under the promise of pardon or in expectation of an implied pardon. This, too, makes the standard of proof higher in their case in the eyes of courts.

In Bhuboni Sahu v. The King, the court explained what the combined effect of section 133 of the Indian Evidence Act and the second illustration to section 114 of the same act is: According to the former—which is a rule of law—an accomplice is competent to give evidence. According to the latter—which is a rule of practice—it is almost always unsafe to convict upon his testimony alone.

“Reading these two enactments together the Courts in India have held that whilst it is not illegal to act upon the uncorroborated evidence of art accomplice it is a rule of prudence so universally followed as to amount almost to a rule of law that it is unsafe to act upon the evidence of an accomplice unless it is corroborated in material respects so as to implicate the accused; and further that the evidence of one accomplice cannot be used to corroborate the evidence of another accomplice,” it said.

Therefore, though the conviction of an accused on the testimony of an accomplice cannot be said to be illegal yet the courts will, in practice, not accept such evidence without corroboration in material particulars.

Why public debate matters

The complexity and nuanced treatment of the law requires an informed public debate in all (including high-profile) cases involving approver witnesses. Critical reflection is especially needed because in recent times, mediatised criminal investigations that create prejudices for or against the parties have become the norm.

Image and representation is vital to ‘modern’ social existence. The media’s 24/7 reporting and commentary on investigations and the administration of justice, creates the impression that news is an extension of state apparatus, susceptible to political control.

Chidambaram’s case is certainly no exception in this context, but just one more instance of the premature vilification of an accused. Uncritical endorsement of the point of view of investigative agencies in the media now traverses across a wide range of cases, trials and suspects. Such instances demonstrate the need for neutrality and restraint by the media. Again, this is not about the legal protection of a former minister, but the protection and safeguarding of an impartial and fair criminal justice system.

Bhaskar Kumar and Prannv Dhawan are researchers at the National Law School of India University, Bengaluru.