Co-Accused Has No Legal Right To Be Heard At The Stage Of Tendering Pardon: Delhi High Court

"The right of a co-accused in respect of an approver arises only at the stage of trial... the co-accused has no right to ask for a hearing in the proceedings of pardon." Delhi High Court, in a significant ruling dated July 4, 2026, held that a co-accused has no statutory or legal right to be heard or to oppose an application for tender of pardon filed by another accused under Section 306 or 307 of the CrPC.

A bench of Justice Jasmeet Singh observed that the process of turning an accused into an approver is strictly a matter between the Court, the prosecution, and the accused seeking pardon, and the rights of other co-accused only crystallize at the stage of trial during cross-examination.

BACKGROUND OF THE CASE

The case arose from an ECIR registered by the Directorate of Enforcement (ED) involving a Delhi Jal Board (DJB) tender. One of the accused, Tajinder Pal Singh, moved the court to be granted pardon and turned into an "approver" under Sections 306 and 307 of the CrPC. The applicant, M/s NKG Infrastructure Ltd. (a co-accused), sought to be impleaded and heard in these proceedings, but their application was rejected by both the Special Judge and subsequently by the High Court in a previous order. The current application sought a recall of the High Court's order granting Singh approver status, alleging a violation of the principles of natural justice.

The primary question before the court was whether a co-accused has a legal right to be heard at the stage of consideration of an application for tender of pardon under Section 306/307 CrPC. The court also determined whether it could exercise its inherent powers under Section 482 CrPC (or Section 528 BNSS) to recall a final order in the face of the statutory bar under Section 362 CrPC.

Criminal Court Can Recall Orders For Procedural Lapse Despite Section 362 CrPC Bar

The Court first addressed the maintainability of the recall application. While acknowledging that Section 362 of the CrPC generally prohibits a criminal court from reviewing or altering its final judgment, Justice Singh drew a sharp distinction between a "substantive review" and a "procedural review."

The bench noted that while a substantive review on merits is barred, the High Court can exercise inherent powers under Section 482 CrPC to recall an order if there has been a procedural impropriety, such as a violation of the principles of natural justice or the failure to hear a necessary party.

"A procedural review involves revisiting the final order for the lack of procedural propriety such as violation of Principles of Natural Justice... if Section 482 is not being exercised to correct the judgment on merits rather any other procedural lapse, the same shall be permitted."

Principle of Res Judicata Applicable In Criminal Proceedings

The Court observed that the applicant had previously sought impleadment before the Trial Court, which was rejected via a reasoned order on July 30, 2024. Since the applicant chose not to challenge that order, it attained finality. The Court held that the principle of res judicata applies to criminal matters to prevent parties from seeking indirectly what they failed to achieve directly.

The bench relied on the Supreme Court's decision in S.C. Garg v. State of U.P., noting that the applicant was now estopped from reopening an issue that had been conclusively decided. Justice Singh remarked that the applicant had "allowed the order to attain finality" and could not reagitate the same point under the guise of a recall application.

"The applicant is estopped from again reopening an issue which has been finally decided by a court, under the guise of present proceedings."

Co-Accused Has No Right To Intervene In Pardon Proceedings

On the central issue of pardon, the Court held that the scheme of Section 306 and 307 CrPC is designed to obtain evidence against offenders in heinous crimes where evidence might be lacking. This process does not adjudicate the guilt of co-accused and, therefore, does not cause them legal prejudice at the pre-trial stage.

Justice Singh emphasized that the "approver" is required to make a full and true disclosure, and the veracity of this disclosure can only be tested during the trial. The co-accused is sufficiently protected by the right to cross-examine the approver and impeach their credibility once the trial commences.

"The grant of pardon is not an act which itself causes prejudice to the co-accused and does not by itself lead to their conviction. The opportunity at the stage of trial to cross-examine the approver and impeach his/her credibility is sufficiently afforded to the co-accused."

Reliance On Precedents Regarding Approver Status

The Court placed heavy reliance on the Delhi High Court's coordinate bench decision in Ashok Kumar Aggarwal v. CBI, which was affirmed by the Supreme Court. The precedent established that the matter of pardon is strictly between the Court and the accused, and other co-accused have no right to intervene or ask for a hearing.

The bench also dismissed the applicant’s reliance on older cases like Sunil Batra and P.R. Sarkar, noting they were based on the repealed CrPC of 1898. Justice Singh clarified that modern jurisprudence under the CrPC 1973 (and the BNSS) consistently holds that no prejudice is caused to a co-accused by the mere grant of pardon to another.

"It would be premature to say that no case is made out against petitioner and his co-accused... the evidence of the Approver certainly advances the prosecution's case."

The Court concluded that since the applicant had no statutory or legal right to be heard at the stage of granting pardon, there was no "procedural lapse" or violation of natural justice. Consequently, the application for recall of the order dated December 3, 2024, was dismissed as devoid of merit.

Date of Decision: July 04, 2026