Delhi District Court
State vs . Sanjay on 27 November, 2014
IN THE COURT OF SHRI RAJ KUMAR CHAUHAN:
ASJ( ELECTRICITY) :NW DISTRICT:ROHINI: DELHI
SC no. 68/09
FIR no. 1923/06
PS Sultan Puri
State Vs. Sanjay
ORDER
(1) By this order, I propose to dispose of an application dated 31.10.13 of Ld. APP for the State U/s 319 Cr.PC interalia alleging that it has come in the evidence that Harender is the owner of the premises bearing no. RZ221, where raid was conducted. It is therefore stated that the court has power to summon him as an accused U/s 319 Cr.PC.
(2) It is further stated that Harender, brother of accused Sanjay has been examined as DW3 by the accused. Therefore the present application has been moved after examination of Harender as DW3 because in his deposition, DW3 has claimed himself to be the owner of the inspected premises where alleged theft of electricity was committed. Since Harender has appeared as DW3 and his brother is main accused, he was asked to file reply to the application. He has appeared through his counsel but did not file any reply and thereafter remained absent. (3) I have heard Ld. APP for the State on his FIR no.1923/09 ( State Vs Sanjay) Page no. 1/6 application.
(4) Ld Addl. PP for the State has submitted that since the proposed accused has claimed himself to be the owner of the premises while he was examined as DW3 on behalf of accused, therefore he being the owner of the premises is responsible for commission of theft of electricity and need not to be impleaded as an accused along with his brother Sanjay who is already facing trial.
(5) Ld. APP for the State has pointed out that in his deposition, Harender has claimed that his brother accused Sanjay has no concern with the premises in question in any manner whatsoever, therefore Harender needs to be made an accused in this case.
(6) I have considered the submission made on behalf of State by Ld. APP for State and carefully examined the record. The claim made by Harender to be the owner of the premises is part of his examination as DW3. No other witness examined by prosecution has stated that it was Harender who was the owner and in possession of premises in question at the time of alleged offence.
(7) The legal question before this court would be as to whether the persons, who have been examined as witnesses in the court can be summoned as an accused in exercise of FIR no.1923/09 ( State Vs Sanjay) Page no. 2/6 the powers under Section 319 CrPC?
(8) This question was answered by Hon'ble Supreme Court in State (Delhi Administration) Vs Jagjit Singh, 1989 AIR(SC) 589 as under:
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 of the Indian 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. In view of this provision, the apprehension of the respondent that his evidence as approver will be used against him in the other four criminal cases where he figures as an accused is without any basis. On the other hand, he is absolutely protected from criminal prosecution on the basis FIR no.1923/09 ( State Vs Sanjay) Page no. 3/6 of the evidence to be given by him when examined by the prosecution as an approver in the said case. This submission of the respondent is, therefore, not tenable. It is pertinent to refer in this connection the decision of this court in Laxmipat Choraria and Ors. v. State of Maharashtra, 1968(2) SCR 626 wherein it has been observed by Hidayatullah, J as he then was that: ".............. Under S. 132 a witness shall not be excused from answering any question as to any matter relevant to the matter in issue in any criminal proceeding (among others) upon the ground that the answer to such question will incriminate or may tend directly or indirectly to expose him to a penalty or forfeiture of any kind. The safeguard to this compulsion is that no such answer which the witness is compelled to give exposes him to any arrest or prosecution or can be proved against him in any criminal proceeding except a prosecution for giving false evidence by such answer."
(9) In M.P. Gangadharan Vs State 1989 Cr.L.J. 2455, the same question was directly under consideration of Hon'ble High Court of Kerala. In the said case, the accused had examined a witness as DW1. However, the trial court had FIR no.1923/09 ( State Vs Sanjay) Page no. 4/6 summoned DW1 u/s 319(1) CrPC as an accused. The question before the Hon'ble Kerala High Court was as to whether a witness gets the protection of Section 132 of the Evidence Act. Hon'ble Kerala High Court relied upon AIR 1989 SC 589 (supra) and held that a witness on oath is under a compulsion to testify and therefore he cannot be summoned u/s 319 CrPC because he is entitled to the protection contained in proviso to Section 132 of the Indian Evidence Act. The Hon'ble Kerala High Court while referring to Municipal Corporation of Delhi vs Ram Kishan Rohtagi 1983 CrLJ 159 also held that the powers u/s 319 CrPC should be used very sparingly because it is an extra ordinary power which should be used only in compelling circumstances.
(10) Similarly our own Hon'ble High Court in criminal M.C. No. 2120/2012 order dated 01.06.2012 titled as Durga Datt Pradhan Vs. CBI, was pleased to hold as under:
"The Kerala High Court relying upon the case of Jagjit Singh (Supra) held that a witness on oath is under a compulsion to testify and therefore, he cannot be summoned U/s 319 Cr.PC. Because he is entitled to protection contained in Proviso to Section 132 of the Indian Evidence Act."
FIR no.1923/09 ( State Vs Sanjay) Page no. 5/6 (11) In view of the law discussed above and the fact that the evidence on the basis of which Ld. APP for State has sought the proposed accused Harender to be summoned as accused under 319 Cr.PC has come on judicial record in his examination as DW3, therefore he has protection under Proviso to Section 132 of the Indian Evidence Act. Therefore he cannot be summoned as an accused U/s 319 Cr.PC. Hence, the present application moved Ld. APP for state is accordingly dismissed.
ANNOUNCED IN THE OPEN COURT
th
ON 27 day of November, 2014
(RAJ KUMAR CHAUHAN)
ASJ (ELECTRICITY)
NORTH WEST DISTRICT
ROHINI :DELHI:
FIR no.1923/09 ( State Vs Sanjay) Page no. 6/6