Sections 308 and 309 CrPC: Breach of Conditions of Pardon and Adjournment of Proceedings
Historical-law note: This article explains Sections 308 and 309 of the Code of Criminal Procedure, 1973 in the form applicable before the Bharatiya Nagarik Suraksha Sanhita, 2023 came into force. It is intended for proceedings and legal research where the CrPC continues to be relevant under the applicable saving and transition provisions.
Section 308 CrPC - Trial of person not complying with conditions of pardon
Section 308 deals with a person who has accepted a tender of pardon under Sections 306 or 307 CrPC but is later certified by the Public Prosecutor to have failed to comply with the condition of that pardon. The statutory trigger is the Public Prosecutor's opinion that the person has wilfully concealed something essential or has given false evidence.
When can the pardoned person be tried?
After the required certificate, the person may be tried for the offence for which pardon was tendered, another offence connected with the same matter, and the offence of giving false evidence. The person cannot be tried jointly with the other accused. A prosecution for giving false evidence under this provision requires sanction of the High Court.
Use of earlier statement
A statement made by the person when accepting the pardon, if recorded by a Magistrate under Section 164 or by a Court under Section 306(4), may be used in evidence against that person at the later trial contemplated by Section 308.
Plea of compliance and burden of proof
The accused is entitled to plead that the conditions of pardon were complied with. Once that plea is raised, the prosecution bears the burden of proving non-compliance. The Court must ask for this plea at the stage specified in Section 308(4), depending on whether the proceeding is before a Court of Session or a Magistrate.
Effect of a finding that the pardon was complied with
If the Court ultimately finds that the accused complied with the conditions of pardon, Section 308(5) requires a judgment of acquittal notwithstanding anything contained elsewhere in the Code.
Section 309 CrPC - Power to postpone or adjourn proceedings
Section 309 regulates the pace of an inquiry or trial and the Court's power to postpone or adjourn it. Its central rule is continuity: proceedings should continue from day to day until witnesses in attendance have been examined, unless an adjournment beyond the following day is necessary and reasons are recorded.
Two-month rule for specified sexual offences
For the specified offences under the Indian Penal Code referred to in Section 309(1), the provision required the inquiry or trial to be completed within two months from the date of filing of the charge-sheet. This text reflects the CrPC position before implementation of the new criminal codes.
Recorded reasons and reasonable period
After cognizance or commencement of trial, a Court may postpone commencement or adjourn an inquiry or trial when it considers this necessary or advisable. Reasons must be recorded, the period must be reasonable, and appropriate terms may be imposed.
Remand during adjournment
Where the accused is in custody, the Court may remand the accused by warrant. Under the CrPC text, a Magistrate could not remand an accused to custody under Section 309 for more than fifteen days at a time.
Witnesses in attendance
If witnesses are present, an adjournment or postponement should not be granted without examining them except for special reasons recorded in writing. The section also restricted adjournments sought merely because counsel was engaged in another court and addressed situations where a party or pleader was absent or not ready to examine or cross-examine a witness.
Meaning of reasonable cause and terms
Explanation 1 treated the likelihood of obtaining further evidence, where sufficient evidence already raised a suspicion that the accused may have committed an offence, as a reasonable cause for remand. Explanation 2 clarified that terms of adjournment could include payment of costs by the prosecution or the accused in an appropriate case.
State amendments appearing in the CrPC text
Chhattisgarh
The page records a State amendment expanding the offences referred to in the proviso to Section 309(1), including specified offences under Sections 354 to 354E, 376 and related provisions, and Sections 509 to 509B of the IPC, under Chhattisgarh Act 25 of 2015.
Maharashtra
The Maharashtra amendment recorded on the page adds that, where an inquiry or trial concerns offences under Sections 332 or 353 IPC, it should, as far as possible, be completed within six months from filing of the charge-sheet. The page attributes this to Maharashtra Act 40 of 2018.
Arunachal Pradesh
The page records an amendment to the proviso to Section 309(1) concerning the listed IPC sexual offences, attributed to Arunachal Pradesh Act 3 of 2019.
Practical legal effect of Sections 308 and 309
Section 308 protects the integrity of a conditional pardon while preserving procedural safeguards for the person who accepted it. Section 309, by contrast, is a case-management provision designed to discourage avoidable delay, require recorded reasons for adjournments, and promote examination of witnesses who are already present.
Current-law context: The BNSS commenced on 1 July 2024, subject to the notified exception. This page deliberately focuses on the CrPC position before that commencement and should be read with the applicable saving provisions when dealing with pending or earlier proceedings.