Kerala High Court
M.P. Gangadharan vs State S.I. Of Police on 20 July, 1989
Equivalent citations: 1989CRILJ2455
JUDGMENT M.M. Pareed Pillay, J.
1. Petitioner challenges the order of the Special Court for Trial of Offences under Essential Commodities Act, Trichur. By the impugned order petitioner who was examined as D.W. 1 was joined as the third accused to be tried along with accused 1 and 2 in S.T. 2 of 1988. The main contention of the petitioner is that the trial Court ought not to have joined him as accused. In support of his stance reliance is made to the decision in Kunhappan v. State of Kerala (1987) 2 Ker LT 222. Sreedharan J. held that in view of Section 319, Crl. P.C. the statement of law made in (1987) 2 Ker LT 222 has to be examined more closely and for that purpose the case was referred to the Division Bench.
2. It is contended by the petitioner that an answer given by him as a witness is protected by the proviso to Section 132 of the Evidence Act and hence the trial Judge was not justified in joining him as an accused. It is also contended that it is not a case where the petitioner has committed any offence for which he could be tried together with the accused in S. T. 2 of 1988 and for that reason also Section 319(1), Crl. P.C. cannot be invoked. Counsel submitted that if D. W. 1's evidence is eschewed, there is no other acceptable legal evidence to implicate him with any offence.
3. Section 132 of the Evidence Act enacts that a witness shall not be excused from answering any question, as to any matter relevant to the matter in issue in any suit or in any civil or criminal proceeding, upon the ground that the answer to such question, will criminate, or may tend directly or indirectly to criminate, such witness or that it will expose, or tend directly or indirectly to expose, such witness to a penalty or forfeiture of any kind. The proviso envisages that no answer which a witness is compelled to give, shall subject him to any arrest or prosecution or be proved against him in any criminal proceeding except a prosecution for giving false evidence by such answer. The question to be considered is whether a statement made by a witness while giving evidence before the Court will come under the purview of the proviso. In this context, what is or what is not "compulsion" to answer assumes importance. Does the word "compelled" contemplate that the witness must have been forced to answer the question put by the Court and must have made his unwillingness known to the Court? Or, is the requirement satisfied even if the witness does not object to the question? To put it differently, whether the requirement of the proviso is satisfied even if the witness does not object to the question. Can he adopt the position that whenever he is summoned as a witness in the Court it would tantamount to compulsion to answer questions. Turner C.J. in R v. Gopal Das (1881) ILR 3 Mad 271 held thus:
...the terms of Section 132, especially when read with the rest of the Act, impel me to the conclusion that protection is afforded only to answers to which a witness has objected or has been constrained by the Court to give.... At the same time, if the witness, being entitled to the privilege, did not claim it, but voluntarily answered the question addressed to him, his answer could be used as against him in any subsequent proceeding. A witness was not bound to criminate himself; but if he thought fit to do so, his admission on oath was equally admissible in evidence against him as any other admission.
The Madras High Court held that if a witness voluntarily answered a question put to him, his answer could be used against him in subsequent proceedings, if he did not object to the question then and there. In Paddabba Reddi v. lyyala Yarada Reddi AIR 1929 Mad 236 : 1929 (30) Cri LJ 613 the Madras High Court held thus:
The protection offered by Section 132, Proviso, does not cover any and every answer given by a witness during the course of his trial. The compulsion contemplated in that Section 2 is something more than being put into the witness-box and being sworn to give evidence. The compulsion in the proviso refers to compulsion by Court and not compulsion under law. The witness, of course, need not ask in so many words the protection of the Court. The compulsion may be implied or explicit, and in every case it is a question of fact whether there was or was not compulsion. But a witness who answers a question or questions put to him without seeking the protection of Section 132 by objecting to the question put, and requesting to be excused, is not entitled to that protection.
Allahabad High Court in several decisions differed from the above view. In Emperor v. Chatur Singh ILR 43 All 92 : AIR 1921 All 362 the Allahabad High Court observed that "although a voluntary statement made by a witness may stand on a different footing, an answer given by a witness in a criminal case on oath to a question put to him either by the Court or by counsel on either side, especially when the question is on a point which is relevant to the case, is within the protection afforded by Section 132 of the Indian Evidence Act, whether or not the witness has objected to the question asked to him." The principle behind the decision is that ordinary lay man unacquainted with the technical terms of Section 132 may think it imperative to answer questions put either by the Court or by the counsel especially when the question is relevant to the case and hence the answer given by a witness under such circumstances is protected by the proviso to Section 132. In Sheo Karan Lal v. Bandi Prasad AIR 1943 Pat 117 : 1943 (44) Cri LJ 391, Patna High Court held as follows:
Whether a witness has been compelled to give an answer within the meaning of Section 132 is a question of fact to be determined by the tribunal in each case. Section 132 does not require that the witness before he can claim protection under the proviso, must first ask to be excused from answering the question on the ground that the answer will criminate him. What the Section 2 really means is that the witness is bound to answer all relevant questions, even though the answer may criminate him but he will not be liable to prosecution except for perjury. Questions which are allowed by the Court in spite of objection by the pleader must be deemed to be relevant, so far as the witness is concerned, and he is bound to give answer. Answer so given is an answer which the witness is "compelled to give" within the meaning of Section 132.
In Bai Shanta v. Umraa Amir AIR 1926 Bohi 141 : 1926 (27) Cri LJ 423 (FB) the Bombay High Court held that relevant statements made on oath or solemn affirmation in a judicial proceeding are not protected by the proviso to Section 132 of the Evidence Act in cases where the witness has not objected to answering the question put to him. The above decisions would show that judicial opinions are not unanimous as to what is or is not "compulsion" to answer. The controversy has been set at rest by the recent decision of the Supreme Court in Delhi Administration v. Jagit Singly , where it has been held as follows (para 13):
Therefore, a witness is legally bound to answer any question which is relevant to the matter in issue even if the answer to such question is likely to criminate him directly or indirectly. Proviso to Section 132 expressly provides that such answer which a witness is compelled to give shall not subject him to any arrest or prosecution nor the same can be proved against him in any criminal proceeding except a prosecution for giving false evidence by such answer. The provisions of proviso to Section 132, Evidence Act, clearly protect a witness from being prosecuted on the basis of the answers given by him in a criminal proceeding which tend to criminate him directly or indirectly.
4. Thomas, J. had occasion to consider these aspects in Kunhappan v. State of Kerala (1987) 2 Ker LT 222. In the above decision, it has been held that a voluntary statement made by a witness may stand on a different footing and the answers given by a witness either to questions put by the Court or by the counsel on either side cannot be said to be voluntary statements made by him and that it is immaterial whether he objects to the question or not. In a case where a party to a civil litigation gives evidence, it is possible to presume that he gives the evidence on his own accord. Similarly, if the accused in a criminal case offers himself to be examined as a witness, a presumption may arise that the evidence given by him is voluntary. That would not be the position with regard to the evidence given by a witness summoned by the Court. The answer given by a witness in a Court, whose presence is required by the Court either by issuance of summons or by other means cannot be equated with the answer given by a party in a civil litigation or the statement of an accused as a witness, in a criminal case. The answer given by such a witness cannot be characterised as a mere voluntary statement and without any compulsion.
5. Petitioner has not voluntarily adduced evidence before the Court. Only on summons he appeared and testified. This is a case where he has been compelled to answer the question. Left to himself, he would not have come before the Court to depose. A situation in which a witness is placed when he is examined before a Court of law cannot be lost sight of. When a person is examined as a witness his natural feeling is that he has to answer the questions. If during the course of the testimony he gives answer criminating himself, he can really look forward to the protection under the proviso. We agree with Thomas, J. in Kunhappan v. State of Kerala (1987) 2 Ker LT 222, where it is held that answer given by a witness cannot be used against him in a subsequent criminal proceeding as he is entitled to the protection contained in the proviso to Section 132 of the Evidence Act.
6. As the petitioner was summoned as a witness and was examined as D.W. 1 and while being examined he has given an answer, that answer cannot be used against him in subsequent criminal proceedings. He is clearly protected under the proviso to Section 132 of the Evidence Act.
7. It is next contended by the petitioner's counsel that it is a case where Section 319(1) Cr, P.C. cannot be invoked at all as no evidence is forthcoming to hold that the petitioner has committed any offence for which he could be tried together with the accused in S.T. 2 of 1988. A reading of the Section 2 would abundantly make it clear that only in a case where it appears to the Court that persons who are not already arrayed as accused in the case appear to have committed the crime, the Court can proceed under this Section. In other words, if from the evidence on record it appears to the Court that the petitioner has also committed a crime and can be tried together with the other accused, then only the Court can proceed against him. As the answer given by the petitioner is protected under the proviso the Section 132 of the Evidence Act, it cannot be used as an item of evidence against the petitioner. When the evidence of the petitioner as D.W. 1 is eschewed there is no other acceptable legal evidence to take action against him. The impugned order does not show that the petitioner had paid any amount for the rice to the accused or that there was any agreement between them with regard to that. P.W. 1 only stated that the destination of the rice was D.W. 1's shop. In the absence of any evidence connecting the petitioner with the offence committed by the accused he cannot be implicated merely on the ipse dixit of P.W. 1 that the destination of rice was to the petitioner's shop and that too when he had no direct knowledge about it. On mere slender evidence it was not proper for the Court below to have passed the impugned order.
8. The power Under Section 319, Cr. P.C. has to be very sparingly used. It can only be invoked for really compelling reasons. In Municipal Corporation of Delhi v. Ram Kishan Rohtagi it has been held that Section 319, Cr. P.C. is really an extra-ordinary power which is conferred on the Court and should be used very sparingly and only if compelling reasons exist for taking cognizance against whom action has not been taken. Hardly any compelling reason is there to invoke the Section 2 as against the petitioner. As the petitioner's evidence cannot be used against him and as he is protected by the proviso to Section 132 of the Evidence Act and as there is no other evidence to hold even prima facie that he has committed any crime so that he could be tried along with accused 1 and 2 in S.T. 2 of 1988, the impugned order cannot be sustained.
The order of the Court below is set aside finding that the petitioner is not liable to be made an accused to be tried along with the accused in S.T. 2 of 1988. The petition stands allowed.