Karnataka High Court
Sri S Muthaiah vs State By Cbi on 7 February, 2025
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
1
Reserved on : 23.01.2025
Pronounced on : 07.02.2025
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 07TH DAY OF FEBRUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
CRIMINAL PETITION No.577 OF 2025
BETWEEN:
SRI S.MUTHAIAH
S/O SANNA SURAIAH,
AGED ABOUT 68 YEARS,
RETIRED DEPUTY
CONSERVATOR OF FOREST,
BELLARY DISTRICT
RESIDING AT NO.1762, DATRI NILAYA,
SHIVAKUMARASWAMY BADAVANE
DAVANGERE - 577 005.
... PETITIONER
(BY SRI HASHMATH PASHA, SR.ADVOCATE FOR
SRI KARIAPPA N.A., ADVOCATE)
AND:
STATE BY CBI
ANTI CORRUPTION BRANCH
Digitally signed by BENGALURU
VISHAL NINGAPPA
PATTIHAL (REPRESENTED BY
Location: High
Court of Karnataka, LEARNED SPECIAL
Dharwad Bench,
Dharwad
2
PUBLIC PROSECUTOR FOR CBI
HIGH COURT OF KARNATAKA
BENGALURU - 560 001.
... RESPONDENT
(BY SRI P.PRASANNA KUMAR, SPL.PP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C., PRAYING TO QUASH THE ORDER DATED 6-1-2025 PASSED
IN SPL.CC NO.116/2012 ON THE FILE OF HON'BLE LXXXI
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE AND SPECIAL
JUDGE FOR ELECTED REPRESENTATIVES, MP'S/MLA'S, BANGALORE
CITY AS PER ANNEXURE-'A' AND CONSEQUENTLY DIRECT THE
HON'BLE TRIAL COURT TO TREAT THESE WITNESSES CW-9-
M.HONNURSAB, CW-10-SANJEEV KUMAR MAHADEV AGSAR, CW-
11-K.KENCHAPPA, CW-12-D.MARANNA, CW-13- SYED SHAREEF,
CW-14-BASANA GOWDA, CW-15-B.SHEKAR, CW-18 -
N.BASAVARAJ, CW-23- K.M.MADHUSUDAN, CW-34- MOHAMED
ATAULLA, CW-37- BALLARY RAGHAVENDRA, CW-38- GANTI
RAJESH, CW-47- A.A.GOPAL, CW -49-MAHANTESH S NYAMATI,
CW-51 - T.K.CHANDRAPPA, CW-52-K.GANGE GOWDA, CW-53-
K.C.NAGARAJAIAH, CW-54 B.NAGARAJ, CW-55 SUNIL KUMAR
CHAVAN, CW-56-B.RANGAIAH, CW-57 K.R.CHETHANA, CW-58
V.NAGABHUSHAN, CW-126 - K.K.POOVAIAH IN THE CASE, NOT TO
EXAMINE THEM AS WITNESSES BUT TO TREAT THEM AS ACCUSED
IN ACCORDANCE WITH LAW.
THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 23.01.2025, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:-
3
CORAM: THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CAV ORDER
The petitioner/accused No.4 is at the doors of this Court
calling in question an order dated 06-01-2025 passed by the LXXXI
Additional City Civil and Sessions Judge and Special Judge for
Elected Representatives, MPs/MLAs, Bangalore City in Special
C.C.No.116 of 2012, whereby the application filed by the petitioner
under Section 319 of the Cr.P.C., to treat the witnesses named in
the application to be the accused and not to examine them as
witnesses is rejected.
2. Heard Sri Hashmath Pasha, learned senior counsel
appearing for the petitioner and Sri P. Prasanna Kumar, learned
Special Public Prosecutor appearing for the respondent.
3. Shorn of unnecessary details, brief facts are as follows:
On 01-10-2011 the respondent/CBI registers a crime in
R.C.18-A/2011 on the directions of the Apex Court against the
accused for offences punishable under Sections 120B, 379, 411,
4
420, 427, 447, 468, 471, 477-A of the IPC and under Section 13(2)
r/w 13(1)(d) of the Prevention of Corruption Act, 1988. Post the
investigation in the aforesaid crime, the CBI files its charge sheet
against accused Nos. 1 to 8. The concerned Court takes cognizance
of the offences and registers Special C.C.No.116 of 2012 and on
30-11-2015 the concerned Court frames its charge against the
accused. The charge that was framed was that the accused have
conspired and used forged permits in Form No.27 for the purpose of
illegal transportation of iron ore, which is the offence punishable as
afore-quoted. The trial commences and moves. On 27-07-2022 the
prosecution examined 20 witnesses, out of 350 witnesses. Certain
documents which are alleged to have been forged are marked as
Ex.P72, Ex.P77 and Ex.P80. It was in evidence that the witnesses
themselves have committed offence of forgery and fabrication of
documents. The offence was signing of blank permits and allowing
accused 1 to 5 and their associates to use those permits for illegal
transportation and sale of illegal iron ore. 19 witnesses were said
to have signed on blank permits. All the witnesses who had signed
blank permits were officials in the Forest Department.
5
4. The petitioner files an application under Section 319 of the
Cr.P.C., seeking PWs-18 to 20 and other 19 witnesses to be tried as
accused for the offences committed by them and cannot be brought
in as witnesses against the petitioner and other accused. On
06-01-2025 answering the said application, the concerned Court
rejects it on the ground that there was no reason to bring them as
accused, as the Court has not treated them as hostile. It is at that
juncture the petitioner is at the doors of this Court in the subject
petition.
5. The learned senior counsel Sri Hashmath Pasha appearing
for the petitioner would vehemently contend that the witnesses who
are named and numbered in the application are all persons who had
to be accomplices of the accused. They ought not to be shown as
witnesses and examined against the petitioner. They are equal to
accused. They have admitted in the cross-examination that they
have themselves signed on blank permits and given to the accused.
Therefore, they are also guilty of the offence, but now they are
being treated as witnesses against the petitioner and others. The
learned senior counsel would submit that an accused posing as a
6
witness, cannot depose against other accused. He would submit
that the Court ought to have followed the procedure under Section
319 of the Cr.P.C., to bring in those witnesses as accused.
6. Per contra, the learned Special Public Prosecutor
Sri P. Prasanna Kumar representing the CBI would vehemently
refute the submissions to contend that the accused cannot plead
that some other person should be brought in as an accused. If at
all there is evidence and if it is found necessary, the prosecution
itself will file an application. That necessity has not yet arisen. It
may be true that a departmental enquiry was sought to be initiated
against all those witnesses who are said to be forest officials, which
would not clothe the petitioner to invoke Section 319 of the Cr.P.C.,
to bring in those persons as accused. He would seek dismissal of
the petition.
7. I have given my anxious consideration to the submissions
made by the respective learned counsel and have perused the
material on record.
7
8. The afore-narrated facts, link in the chain of events and
dates are not in dispute. The Apex Court on 23-09-2011 directed
investigation to be conducted into the affairs of illegal mining. This
resulted in the aforesaid crime for offences as indicated supra. The
CBI then files the charge sheet after investigation. Charge was
framed by the concerned Court against the accused on 23-07-2016.
The issue in the lis does not pertain to the offence alleged by the
CBI against the petitioner or the defence of the petitioner. The trial
commenced on 30-11-2015 and PW-1 to PW-20 were examined.
23 Forest officials were sought to be examined as witnesses. The
names of those forest officials and their respective witness number
is as follows:
"(1) CW-9 M.Honnursab
(2) CW-10 Sanjeev Kumar Mahadev Agsar
(3) CW-11 K.Kenchappa
(4) CW-12 D.Maranna
(5) CW-13 Syed Shareef
(6) CW-14 Basana Gowda
(7) CW-15 B.Shekar
(8) CW-18 N.Basavaraj
(9) CW-23 K.M.Madhusudan
(10) CW-34 Mohamed Ataulla
(11) CW-37 Ballary Raghavendra
(12) CW-38 Ganti Rajesh
(13) CW-47 A.A. Gopal
(14) CW-49 Mahantesh S.Nyamati
(15) CW-51 T.K.Chandrappa
(16) CW-52 K.Gange Gowda
8
(17) CW-53 K.C.Nagarjaiah
(18) CW-54 B.Nagaraj
(19) CW-55 Sunil Kumar Chavan
(20) CW-56 B.Rangaiah
(21) CW-57 K.R.Chethana
(22) CW-58 V.Nagabhushan
(23) CW-126 K.K.Poovaiah"
The allegation is that accused No.1 Sri G.Janardhana Reddy had
used in Form 27, forged permits for illegal transportation of iron
ore. The aforesaid 23 officials who were holding office at
intermittent intervals, were said to have acted in connivance with
the accused. During the investigation, the aforesaid 23 officials had
tendered their statement under Section 161 of the Cr.P.C., and
every one of them had confessed to the crime. The crime is of
handing over blank permits with their signature. The forest officials
then give their statements under Section 164 of the Cr.P.C., before
the concerned Court, admitting that they had signed blank permits
and those permits had been utilized by accused Nos. 1 to 5 for
illegal transportation of iron ore. Permits signed by each one of the
afore-quoted witnesses are appended to the petition. The kind of
timber or description of forest produce is left blank. Person to
whom it is issued is also left blank. This is marked as D-1977
series. Statements made under Section 161 and Section 164 of the
9
Cr.P.C., are also produced before the Court. Statement of one
M.Honnur Sab working as Forest Guard who is also now sought to
be a witness is as follows:
".... .... ....
Now I have also been shown book Nos. 10185 to
10203 containing office copies of Form No.27 having 50
leaves in each book from Sl. Nos. 509201 to 510150. On
perusal, I state that these 19 books were also signed by me
on 22-03-2010 on each leaf on the direction of Shri Mahesh
A. Patil, the then Range Forest Officer, Sandur Range to save
my life and family, as M/s Associated Mining Company Mines
Manager Shri Sanjeev Kumar and others have threatened me
to sign on them.
I further state that on 25-03-2010 Shri Sharieff,
Forester, Sandur Range has told me that Shri Sanjeev
Kumar, Assistant Manager (Mines), M/s Associated
Mining Company has brought back the office copies of
way permits issued in my name and asked me to
return the same under my signature. Accordingly, I
signed on the covering letter and Form No.35 kept
with them and returned back. Shri Sharieff, Ballary
Raghavendra and Rajesh, Foresters have checked and
received back the same."
(Emphasis added)
Sri. M.Honnur Sab is CW-9. Likewise, the Range Forest officer one
K.Kenchappa who is also a witness admits the fact of signing blank
permits. Every witness has tendered their statement under Section
161 of the Cr.P.C. admitting signing of blank papers. The same gets
10
carried out before the concerned Court. CW-10 one Sanjeev Kumar
Mahadev Agsar admits to the allegation in his deposition. It reads
as follows:
".... .... ....
3. The investigating officer had shown me with
the books containing office copies of Form No.27
which were from 10403 to 10412 wherein each
consisted of 50 leaves. On perusal of the same I had
stated that A-7 Mr. Mahesh A Patil who was the then
Range Forest Officer at Sandur had exerted pressure
on me and had got my signature affixed to the same. I
had not written the date, volume and other details in
the said form No.27. I do not have any intimation with
respect to the same. The entries in the said form were made
after obtaining my signature. .. .. .."
(Emphasis added)
Every other witness has the same story to tell that they were all
threatened by one Sanjeev Kumar, Assistant Manager (Mines),
M/s Associated Mining Company. This is the same swan song that is
sung by the witnesses. On 16-03-2013 the Principal Chief
Conservator of Forests communicates to the Competent Authority
to initiate inquiry for the alleged acts. The communication reads as
follows:-
"ಕ ಾ ಟಕ ಅರಣ ಇ ಾ ೆ
¸ÀASÉå: © 2/¹E«/«ªÀ/64/2011-12
11
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2012-13ರ ಪತ .
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ಪ @ಯನುH ಸಹ ಸ.$Qರು@7ೕ .
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ಮುಂದುವ4ೆಯಲು ಸೂdQFೆ. 8ೕವj ಸ.$Qದ ಎ ಾ$ Fಾಖ ಾ@ಗಳನುH ಈ ಲಗತು7 ]ಂ:ರು0QFೆ.
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12
ಪ ಾನ ಮುಖ ಅರಣ ಸಂರ ಾ ಾ
(ಮುಖ ಸರು, ಅರಣ ¥ÀqÉ)"
But, by then the CBI had communicated to the Deputy Conservator
of Forests to keep the departmental enquiry in abeyance. The
communication reads as follows:
"No.C2/RC.18(A)/2011/CBI/ACB/BLR/2012/3410
Dated: 26-04-2012
To
The Deputy Conservator of Forests,
Forest Department,
Bellary Division,
Bellary.
Sir,
Sub: RC No.18(A)/2011 - BLR - Providing certified
copies of Form-27 pertaining to M/s AMC for
preparing charges against Accused
Government Officials (AGO) - reg.
Ref: Your letter No.Store/BLY/Form-27/AMC/2011-
12 dated 20-04-2012.
-0-
With reference to your letter cited above, this is to inform
that since the said case is still under investigation the Forest
Department is hereby advised to keep the Departmental action
in abeyance, until the trial in this case is over, against the
foresters who had given statement to CBI u/s 161 and 164
Cr.P.C.
Yours faithfully,
Sd/-
(R.Hithendra)
Head of Branch,
CBI:ACB:Bangalore."
13
In the light of the later communication, it appears, departmental
enquiry is initiated and charge sheets are issued against all the
witnesses afore-quoted. The charge sheets so issued are produced
before this Court. The charges are issued against CW-10, CW-14,
CW-37, CW-38, CW-54, CW-55, CW-57 and CW-126. The allegation
against those accused in the charge sheet is signing of blank
permits. It is at that juncture, the petitioner files an application
under Section 319 of the Cr.P.C., seeking to draw those witnesses
as accused into the web of proceedings, on the principle that a
witness who is also an accused cannot depose against any other
accused, unless he is granted pardon under Section 306 or Section
307 of the IPC.
9. The issue now would be, whether the witnesses who
are particeps criminis can depose against other accused and
whether they can be transposed under Section 319 of the
Cr.P.C., from the status of witnesses to accused?
10. In that light, I deem it appropriate to notice the law as
elucidated by the Apex Court interpreting the purport of Section
319 of the Cr.P.C. A Constitution Bench of the Apex Court in the
14
case of HARDEEP SINGH v. STATE OF PUNJAB1, considers this
issue and holds as follows:
"Question (i) -- What is the stage at which power under
Section 319 CrPC can be exercised?
25. The stage of inquiry and trial upon cognizance being
taken of an offence, has been considered by a large number of
decisions of this Court and that it may be useful to extract the
same hereunder for proper appreciation of the stage of invoking
of the powers under Section 319 CrPC to understand the
meaning that can be attributed to the words "inquiry" and "trial"
as used under the section.
... ... ...
39. Section 2(g) CrPC and the case laws referred to
above, therefore, clearly envisage inquiry before the actual
commencement of the trial, and is an act conducted under CrPC
by the Magistrate or the court. The word "inquiry" is, therefore,
not any inquiry relating to the investigation of the case by the
investigating agency but is an inquiry after the case is brought
to the notice of the court on the filing of the charge-sheet. The
court can thereafter proceed to make inquiries and it is for this
reason that an inquiry has been given to mean something other
than the actual trial.
40. Even the word "course" occurring in Section 319
CrPC, clearly indicates that the power can be exercised only
during the period when the inquiry has been commenced and is
going on or the trial which has commenced and is going on. It
covers the entire wide range of the process of the pre-trial and
the trial stage. The word "course" therefore, allows the court to
invoke this power to proceed against any person from the initial
stage of inquiry up to the stage of the conclusion of the trial.
The court does not become functus officio even if cognizance is
taken so far as it is looking into the material qua any other
person who is not an accused. The word "course" ordinarily
conveys a meaning of a continuous progress from one point to
the next in time and conveys the idea of a period of time :
1
(2014) 3 SCC 92
15
duration and not a fixed point of time. (See CIT v. East West
Import & Export (P) Ltd. [(1989) 1 SCC 760 : 1989 SCC (Tax)
208 : AIR 1989 SC 836] )
41. In a somewhat similar manner, it has been attributed
to the word "course" the meaning of being a gradual and
continuous flow advanced by journey or passage from one place
to another with reference to period of time when the movement
is in progress. (See State of Travancore-Cochin v. Shanmugha
Vilas Cashewnut Factory [(1953) 1 SCC 826 : AIR 1953 SC 333]
.)
42. To say that powers under Section 319 CrPC can
be exercised only during trial would be reducing the
impact of the word "inquiry" by the court. It is a settled
principle of law that an interpretation which leads to the
conclusion that a word used by the legislature is
redundant, should be avoided as the presumption is that
the legislature has deliberately and consciously used the
words for carrying out the purpose of the Act. The legal
maxim a verbislegis non estrecedendum which means,
"from the words of law, there must be no departure" has
to be kept in mind.
43. The court cannot proceed with an assumption that
the legislature enacting the statute has committed a mistake
and where the language of the statute is plain and
unambiguous, the court cannot go behind the language of the
statute so as to add or subtract a word playing the role of a
political reformer or of a wise counsel to the legislature. The
court has to proceed on the footing that the legislature intended
what it has said and even if there is some defect in the
phraseology, etc., it is for others than the court to remedy that
defect. The statute requires to be interpreted without doing any
violence to the language used therein. The court cannot rewrite,
recast or reframe the legislation for the reason that it has no
power to legislate.
... ... ...
Question (iii)--Whether the word "evidence" used in
Section 319(1) CrPC has been used in a comprehensive
sense and includes the evidence collected during
16
investigation or the word "evidence" is limited to the
evidence recorded during trial?
58. To answer the questions and to resolve the
impediment that is being faced by the trial courts in exercising
of powers under Section 319 CrPC, the issue has to be
investigated by examining the circumstances which give rise to
a situation for the court to invoke such powers. The
circumstances that lead to such inference being drawn up by the
court for summoning a person arise out of the availability of the
facts and material that come up before the court and are made
the basis for summoning such a person as an accomplice to the
offence alleged to have been committed. The material should
disclose the complicity of the person in the commission of
the offence which has to be the material that appears
from the evidence during the course of any inquiry into or
trial of offence. The words as used in Section 319 CrPC
indicate that the material has to be "where ... it appears
from the evidence" before the court.
... ... ...
76. Ordinarily, it is only after the charges are framed that
the stage of recording of evidence is reached. A bare perusal of
Section 227 CrPC would show that the legislature has used the
terms "record of the case" and the "documents submitted
therewith". It is in this context that the word "evidence" as
appearing in Section 319 CrPC has to be read and understood.
The material collected at the stage of investigation can at best
be used for a limited purpose as provided under Section 157 of
the Evidence Act i.e. to corroborate or contradict the statements
of the witnesses recorded before the court. Therefore, for the
exercise of power under Section 319 CrPC, the use of word
"evidence" means material that has come before the court
during an inquiry or trial by it and not otherwise. If from the
evidence led in the trial the court is of the opinion that a person
not accused before it has also committed the offence, it may
summon such person under Section 319 CrPC.
77. With respect to documentary evidence, it is sufficient,
as can be seen from a bare perusal of Section 3 of the Evidence
Act as well as the decision of the Constitution Bench
[RamnarayanMor v. State of Maharashtra, AIR 1964 SC 949 :
(1964) 2 Cri LJ 44] , that a document is required to be produced
17
and proved according to law to be called evidence. Whether
such evidence is relevant, irrelevant, admissible or inadmissible,
is a matter of trial.
78. It is, therefore, clear that the word "evidence"
in Section 319 CrPC means only such evidence as is made
before the court, in relation to statements, and as
produced before the court, in relation to documents. It is
only such evidence that can be taken into account by the
Magistrate or the court to decide whether the power
under Section 319 CrPC is to be exercised and not on the
basis of material collected during the investigation.
79. The inquiry by the court is neither attributable
to the investigation nor the prosecution, but by the court
itself for collecting information to draw back a curtain
that hides something material. It is the duty of the court
to do so and therefore the power to perform this duty is
provided under CrPC.
80. The unveiling of facts other than the material
collected during investigation before the Magistrate or
court before trial actually commences is part of the
process of inquiry. Such facts when recorded during trial
are evidence. It is evidence only on the basis whereof
trial can be held, but can the same definition be extended
for any other material collected during inquiry by the
Magistrate or court for the purpose of Section 319 CrPC?
81. An inquiry can be conducted by the Magistrate or
court at any stage during the proceedings before the court. This
power is preserved with the court and has to be read and
understood accordingly. The outcome of any such exercise
should not be an impediment in the speedy trial of the case.
Though the facts so received by the Magistrate or the court may
not be evidence, yet it is some material that makes things clear
and unfolds concealed or deliberately suppressed material that
may facilitate the trial. In the context of Section 319 CrPC it is
an information of complicity. Such material therefore, can be
used even though not an evidence in strictosensu, but an
information on record collected by the court during inquiry itself,
as a prima facie satisfaction for exercising the powers as
presently involved.
18
82. This pre-trial stage is a stage where no adjudication
on the evidence of the offences involved takes place and
therefore, after the material along with the charge-sheet has
been brought before the court, the same can be inquired into in
order to effectively proceed with framing of charges. After the
charges are framed, the prosecution is asked to lead evidence
and till that is done, there is no evidence available in the strict
legal sense of Section 3 of the Evidence Act. The actual trial of
the offence by bringing the accused before the court has still not
begun. What is available is the material that has been submitted
before the court along with the charge-sheet. In such situation,
the court only has the preparatory material that has been placed
before the court for its consideration in order to proceed with
the trial by framing of charges.
83. It is, therefore, not any material that can be
utilised, rather it is that material after cognizance is
taken by a court, that is available to it while making an
inquiry into or trying an offence, that the court can utilise
or take into consideration for supporting reasons to
summon any person on the basis of evidence adduced
before the court, who may be on the basis of such
material, treated to be an accomplice in the commission
of the offence. The inference that can be drawn is that
material which is not exactly evidence recorded before
the court, but is a material collected by the court, can be
utilised to corroborate evidence already recorded for the
purpose of summoning any other person, other than the
accused. This would harmonise such material with the
word "evidence" as material that would be supportive in
nature to facilitate the exposition of any other accomplice
whose complicity in the offence may have either been
suppressed or escaped the notice of the court.
(Emphasis supplied)
19
Another Constitution Bench in the case of SUKHPAL SINGH
KHAIRA v. STATE OF PUNJAB2, laid down certain principles for
exercise of power under Section 319 of the Cr.P.C., as follows:
".... .... ....
33. In that view of the matter, if the court finds
from the evidence recorded in the process of trial that
any other person is involved, such power to summon the
accused under Section 319CrPC can be exercised by
passing an order to that effect before the sentence is
imposed and the judgment is complete in all respects
bringing the trial to a conclusion. While arriving at such
conclusion what is also to be kept in view is the
requirement of sub-section (4) to Section 319CrPC. From
the said provision it is clear that if the learned Sessions
Judge exercises the power to summon the additional
accused, the proceedings in respect of such person shall
be commenced afresh and the witnesses will have to be
re-examined in the presence of the additional accused. In
a case where the learned Sessions Judge exercises the power
under Section 319CrPC after recording the evidence of the
witnesses or after pronouncing the judgment of conviction but
before sentence being imposed, the very same evidence which
is available on record cannot be used against the newly added
accused in view of Section 273CrPC. As against the accused who
has been summoned subsequently a fresh trial is to be held.
However while considering the application under Section
319CrPC, if the decision by the learned Sessions Judge is to
summon the additional accused before passing the judgment of
conviction or passing an order on sentence, the conclusion of
the trial by pronouncing the judgment is required to be withheld
and the application under Section 319CrPC is required to be
disposed of and only then the conclusion of the judgment, either
to convict the other accused who were before the Court and to
sentence them can be proceeded with. This is so since the
power under Section 319CrPC can be exercised only before the
2
(2023) 1 SCC 289
20
conclusion of the trial by passing the judgment of conviction and
sentence.
34. Though Section 319CrPC provides that such person
summoned as per sub-section (1) thereto could be jointly tried
together with the other accused, keeping in view the power
available to the court under Section 223CrPC to hold a joint
trial, it would also be open to the learned Sessions Judge at the
point of considering the application under Section 319CrPC and
deciding to summon the additional accused, to also take a
decision as to whether a joint trial is to be held after summoning
such accused by deferring the judgment being passed against
the tried accused. If a conclusion is reached that the fresh trial
to be conducted against the newly added accused could be
separately tried, in such event it would be open for the learned
Sessions Judge to order so and proceed to pass the judgment
and conclude the trial insofar as the accused against whom it
had originally proceeded and thereafter proceed in the case of
the newly added accused. However, what is important is that
the decision to summon an additional accused
either suomotu by the court or on an application under Section
319CrPC shall in all eventuality be considered and disposed of
before the judgment of conviction and sentence is pronounced,
as otherwise, the trial would get concluded and the court will get
divested of the power under Section 319CrPC. Since a power is
available to the court to decide as to whether a joint trial is
required to be held or not, this Court was justified in holding the
phrase, "could be tried together with the accused" as contained
in Section 319(1)CrPC, to be directory as held in Shashikant
Singh [Shashikant Singh v. Tarkeshwar Singh, (2002) 5 SCC
738 : 2002 SCC (Cri) 1203] which in our opinion is the correct
view.
35. One other aspect which is necessary to be clarified is
that if the trial against the absconding accused is split up
(bifurcated) and is pending, that by itself will not provide
validity to an application filed under Section 319CrPC or the
order of court to summon an additional accused in the earlier
main trial if such summoning order is made in the earlier
concluded trial against the other accused. This is so, since such
power is to be exercised by the court based on the evidence
recorded in that case pointing to the involvement of the accused
who is sought to be summoned. If in the split up (bifurcated)
21
case, on securing the presence of the absconding accused the
trial is commenced and if in the evidence recorded therein it
points to the involvement of any other person as contemplated
in Section 319CrPC, such power to summon the accused can
certainly be invoked in the split up (bifurcated) case before
conclusion of the trial therein.
... ... ...
39.(I) Whether the trial court has the power under
Section 319CrPC for summoning additional accused when the
trial with respect to other co-accused has ended and the
judgment of conviction rendered on the same date before
pronouncing the summoning order?
The power under Section 319CrPC is to be invoked
and exercised before the pronouncement of the order of
sentence where there is a judgment of conviction of the
accused. In the case of acquittal, the power should be
exercised before the order of acquittal is pronounced.
Hence, the summoning order has to precede the
conclusion of trial by imposition of sentence in the case
of conviction. If the order is passed on the same day, it
will have to be examined on the facts and circumstances
of each case and if such summoning order is passed
either after the order of acquittal or imposing sentence in
the case of conviction, the same will not be sustainable.
40.(II) Whether the trial court has the power under
Section 319CrPC for summoning additional accused when the
trial in respect of certain other absconding accused (whose
presence is subsequently secured) is ongoing/pending, having
been bifurcated from the main trial?
The trial court has the power to summon additional
accused when the trial is proceeded in respect of the absconding
accused after securing his presence, subject to the evidence
recorded in the split-up (bifurcated) trial pointing to the
involvement of the accused sought to be summoned. But the
evidence recorded in the main concluded trial cannot be the
basis of the summoning order if such power has not been
exercised in the main trial till its conclusion.
22
41.(III) What are the guidelines that the competent
court must follow while exercising power under Section
319CrPC?
41.1. If the competent court finds evidence or if
application under Section 319CrPC is filed regarding
involvement of any other person in committing the
offence based on evidence recorded at any stage in the
trial before passing of the order on acquittal or sentence,
it shall pause the trial at that stage.
41.2. The court shall thereupon first decide the
need or otherwise to summon the additional accused and
pass orders thereon.
41.3. If the decision of the court is to exercise the
power under Section 319CrPC and summon the accused,
such summoning order shall be passed before proceeding
further with the trial in the main case.
41.4. If the summoning order of additional accused
is passed, depending on the stage at which it is passed,
the court shall also apply its mind to the fact as to
whether such summoned accused is to be tried along
with the other accused or separately.
41.5. If the decision is for joint trial, the fresh trial
shall be commenced only after securing the presence of
the summoned accused.
41.6. If the decision is that the summoned accused
can be tried separately, on such order being made, there
will be no impediment for the court to continue and
conclude the trial against the accused who were being
proceeded with.
41.7. If the proceeding paused as in para 41.1
above, is in a case where the accused who were tried are
to be acquitted, and the decision is that the summoned
accused can be tried afresh separately, there will be no
impediment to pass the judgment of acquittal in the main
case.
23
41.8. If the power is not invoked or exercised in the
main trial till its conclusion and if there is a split-up
(bifurcated) case, the power under Section 319CrPC can
be invoked or exercised only if there is evidence to that
effect, pointing to the involvement of the additional
accused to be summoned in the split-up (bifurcated) trial.
41.9. If, after arguments are heard and the case is
reserved for judgment the occasion arises for the Court to
invoke and exercise the power under Section 319CrPC,
the appropriate course for the court is to set it down for
re-hearing.
41.10. On setting it down for re-hearing, the above
laid down procedure to decide about summoning; holding
of joint trial or otherwise shall be decided and proceeded
with accordingly.
41.11. Even in such a case, at that stage, if the
decision is to summon additional accused and hold a joint
trial the trial shall be conducted afresh and de
novo proceedings be held.
41.12. If, in that circumstance, the decision is to
hold a separate trial in case of the summoned accused as
indicated earlier:
(a) The main case may be decided by pronouncing
the conviction and sentence and then proceed
afresh against summoned accused.
(b) In the case of acquittal the order shall be passed
to that effect in the main case and then proceed
afresh against summoned accused."
(Emphasis supplied)
24
The Apex Court in the case of RAGHUVEER SHARAN v. DISTRICT
SAHAKARI KRISHI GRAMIN VIKAS BANK3, steers clear the
controversy as follows:
"ANALYSIS
9. The issue to be decided herein is whether in the
facts and circumstances of the case, the appellant is
entitled for protection under Section 132 of the Act, as
his statement was recorded earlier at the pre-summoning
stage as a witness for the complainant/respondent bank.
10. Before proceeding further, it would be appropriate to
refer and reproduce the provisions contained in Section 132 of
the Indian Evidence Act, 1872 as under:--
"132. Witness not excused from answering on
ground that answer will criminate. -
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:
Proviso : - Provided that no such answer, which a
witness shall be 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."
11. In order to have clear understanding of the sweep
and import of the provisions contained in Section 132 of the Act
and the proviso, in particular, it is necessary to dwell on the
principle on which the provision is introduced in the statute.
3
2024 SCC OnLine SC 2489
25
12. The proviso to Section 132 of the Act is based on the
maxim nemo Teneturprodereseipsum i.e. no one is bound to
criminate himself and to place himself in peril. In this regard the
law in England, (with certain exceptions) is that a witness need
not answer any question, the tendency of which is to expose the
witness, or to feed hand of the witness, to any criminal charge,
penalty or forfeiture6. The privilege is based on the principle of
encouraging all persons to come forward with evidence, by
protecting them, as far as possible, from injury or needless
annoyance in consequence of so doing7. This absolute privilege,
in some cases tended to bring about a failure of justice, for the
allowance of the excuse, particularly when the matter to which
the question related was in the knowledge solely of the witness,
deprived the court of the information which was essential to its
arriving at a right decision.
13. In order to avoid this inconvenience, Section 132 of
the Act, withdrew this absolute privilege and affords only a
qualified privilege. The witness is deprived of the privilege of
claiming excuse from testifying altogether; but, while subjecting
him to compulsion, the legislature, in order to remove any
inducement to falsehood, declared that evidence so obtained
should not be used against him, except for the purpose in the
Act declared.
14. It must also be borne in mind that the proviso to
Section 132 of the Act is also an extension of the protection
enshrined under Article 20(3) of the Constitution of India which
confers a fundamental right that "no person accused of any
offence shall be compelled to be a witness against himself".
Under the constitutional scheme, the right is available only to a
person who is accused of an offence, the proviso to Section 132
of the Act, in extension, creates a statutory immunity in favour
of a witness who in the process of giving evidence in any suit or
in any civil or criminal proceeding makes a statement which
criminates himself. It is settled that the proviso to Section 132
of the Act is a necessary corollary to the principle enshrined
under Article 20(3) of the Constitution of India which confers a
fundamental right that "no person accused of any offence shall
be compelled to be a witness against himself".
15. A perusal of the legislative history would reveal that
the object of the law is to secure evidence which could not have
26
been obtained. The purpose for granting such a statutory
immunity was to enable the court to reach a just conclusion
(and thus assisting the process of law).
16. In R. Dinesh Kumar alias Deena (supra), the two
judges Bench of this Court observed, after referring to Justice
MuttusamiAyyar's opinion in the matter of "The Queen v. Gopal
Doss" that the policy under Section 132 of the Act appears to be
to secure the evidence from whatever sources it is available for
doing justice in a case brought before the court. In the course of
securing such evidence, if a witness who is under obligation to
state the truth because of the Oath taken by him makes any
statement which will criminate or tend to expose such a witness
to a "penalty or forfeiture of any kind etc.", the proviso grants
immunity to such a witness by declaring that "no such answer
given by the witness shall subject him to any arrest or
prosecution or be proved against him in any criminal
proceeding". This Court in R. Dinesh Kumar alias Deena (supra)
further observed in para 47 that no prosecution can be launched
against the maker of a statement falling within the sweep of
Section 132 of the Act on the basis of the "answer" given by a
person while deposing as a "witness" before a Court. We are in
agreement with the view taken by this Court in R. Dinesh Kumar
alias Deena (supra). However, the facts of the present case
compel us to consider the matter in a different
perspective as to when apart from his own statement
made by a witness, he is still protected under the proviso
of Section 132 of the Act when there is other material
against him for summoning as an accused. In R. Dinesh
Kumar alias Deena (supra) a witness examined as PW-64
during trial was sought to be summoned by moving an
application under Section 319 Cr. P.C. The Trial Court
dismissed the application, and the High Court affirmed
the dismissal order. The High Court, in the said case,
observed in para 64 that PW-64 cannot be prosecuted by
summoning him as an additional accused under
Section 319 Cr. P.C. on the basis of his evidence in the
Sessions Case. However, the High Court held that PW-64
could be separately prosecuted for an offence under
Section 120B of the Penal Code, 1860 read with
Section 302 of IPC if independent evidence other than the
statement under Section 164 Cr. P.C. of PW-64 and his
27
evidence in Sessions Case are available to prosecute him
along with other accused.
17. This Court in R. Dinesh Kumar alias Deena (supra)
refused to consider the issue as to whether a witness protected
under the proviso of Section 132 of the Act could be separately
prosecuted if independent evidence is also available by
observing thus in paras 7 & 52:
"7. In our opinion, the second conclusion recorded by
the High Court contained in para 64 extracted above, is
really uncalled for in the context of the issue before the
High Court. The question before the High Court was whether
the Sessions Court was justified in declining to summon PW
64 in exercise of its authority under Section 319 of the Cr.
P.C. as an additional accused in Sessions Case No. 73 of
2009. We, therefore, will examine only the question
whether on the facts mentioned earlier the Sessions Court is
obliged to summon PW 64 as an additional accused
exercising the power under Section 319 of the Cr. P.C.
52. In the light of the above two decisions, the
proposition whether the prosecution has a liberty to
examine any person as a witness in a criminal prosecution
notwithstanding that there is some material available to the
prosecuting agency to indicate that such a person is also
involved in the commission of the crime for which the other
accused are being tried, requires a deeper examination."
18. In other words, if the privilege made available
to a witness under the proviso to Section 132 of the Act is
interpreted as a complete immunity, notwithstanding
availability of other evidence, it is capable of abuse. In a
particular case, a dishonest Investigating officer could
cite a person as a witness in the report under
Section 173 of the Cr. P.C., being fully aware that there is
incriminating material against such person. Similarly, a
man complicit of an offence, could very well institute a
complaint under Section 200 Cr. P.C., examine himself as
a witness, make statements incriminating himself and
claim immunity from prosecution. It could also be so that
an investigating officer, under an honest mistake
examines a man complicit of an offence as a witness in
the case, the Court upon examining the other evidence,
28
could conclude that the witness was complicit in the
offence, the question then would be whether there would
be complete bar on the Court to prosecute such witness
for the offence on the basis of such other material.
19. The question that would then arise is whether the
qualified privilege under the proviso to Section 132 of the Act,
grants complete immunity to a person who has deposed as a
witness (and made statements incriminating himself),
notwithstanding the availability of other material with the
prosecution?
a. Whether a Court while trying an offence, is barred
from initiating process under Section 319 of the Cr. P.C.,
against a witness in the said proceeding on the basis of
other material on record?
20. As noted above, the qualified privilege under the
proviso to Section 132 of the Act, is intended to ensure that all
the evidence is placed before the Court to reach a just
conclusion. In our view, it is not fathomable that a provision in
the Evidence Act, the primary purpose of which was to ensure
that all the material is before the Court and ensure that the
ends of justice are met, could itself grant a blanket immunity to
a witness (albeit complicit). Such an interpretation in our
opinion would be unsustainable. Needless to say, that his
statement cannot be used for any purpose whatsoever for the
purposes of bringing such witness to trial. As such we hold that
the qualified privilege under the proviso to Section 132 of the
Act does not grant complete immunity from prosecution to a
person who has deposed as a witness (and made statements
incriminating himself).
21. However, the next question that would arise is
what is the course available to a Court, which in the
course of trial is confronted with evidence, other than the
statement of the witness (against whom incriminating
material is available)? Whether the Court can rely upon
the statement of the witness for invoking the provisions
of Section 319 Cr. P.C.? Whether reference to any
statement tendered by the witness would vitiate the
order under Section 319 Cr. P.C.?
29
22. There cannot be an absolute embargo on the
Trial Court to initiate process under Section 319 Cr. P.C.,
merely because a person, who though appears to be
complicit has deposed as a witness. The finding to invoke
Section 319 Cr. P.C., must be based on the evidence that
has come up during the course of Trial. There must be
additional, cogent material before the Trial Court apart
from the statement of the witness.
23. An order for initiation of process under
Section 319 Cr. P.C. against a witness, who has deposed
in the trial and has tendered evidence incriminating
himself, would be tested on the anvil that whether only
such incriminating statement has formed the basis of the
order under Section 319 Cr. P.C. At the same time, mere
reference to such statement would not vitiate the order.
The test would be as to whether, even if the statement of
witness is removed from consideration, whether on the
basis of other incriminating material, the Court could
have proceeded under Section 319 Cr. P.C."
(Emphasis supplied)
The Apex Court considers all the earlier judgments and answers the
question that the Court while trying an offence is not barred from
initiating process under Section 319 of the Cr.P.C., against a
witness in the said proceeding, on the basis of other material on
record. The Apex Court answers that it is a course permissible in
law, as Section 132 offers statutory immunity against self-
incrimination which a witness shall be compelled to keep. The
witness who is in a position of accomplice can always be dragged to
the position of an accused, only by following due process of law.
30
11. These authorities were placed before the concerned
Court. The concerned Court has rejected the application without
even initiating the process under Section 319 of the Cr.P.C., and
hearing those accused on the issue of such transposition. The
concerned Court answers as follows:
".... .... ....
33. Admittedly, in the present case, the aforesaid
witnesses had not sought any order of pardon from the hands of
this Court, but at the same time, that the forest officials are
deposing before the Court about the pressure exerted by
accused No.1 to affix their signature for signed blank permits.
Though it has been vehemently argued by the learned Senior
Counsel that issuance of signed blank permits by themselves
would indicate their active participation by the said witnesses
with other accused persons. Though the said submission seems
to be attractive at the first instance, the court is required to
consider the materials which are available on record in order to
summon any party as additional accused person. In the instant
case, the witnesses have deposed of exerting political pressure
by accused No.1 G.Janardhana Reddy who was the then District
in-charge Minister and also the role played by the other accused
persons i.e., accused No.7 Mahesh Patil, accused No.8
Ramamurthy, accused No.4 S. Muthaiah, who were all holding
coveted positions in the State Government and especially in the
Forest Department and Department of Mines and Geology.
Unless the court is satisfied with respect to the materials
available on record, which would indicate that the materials
available are on higher pedestal than that of the other accused
persons, the application cannot be allowed in a mechanical
manner. Even otherwise, at this juncture, only the evidence of
PW-18 to 20 has been commenced and in particularly, only chief
examination has been conducted. On the completion of chief -
examination of PW-18 Sanjeev Kumar Mahadev Agsar the cross
came to be deferred and whereas with respect to PW-19
Chethan the further cross-examination was deferred for
31
producing certain documents and whereas PW-20 Basanagouda,
the cross-examination was deferred on the request being made
by the learned counsel for accused persons. By considering the
aforesaid aspects, it is apparent that still there are not sufficient
materials to summon the aforesaid witnesses as additional
accused persons at this juncture. As laid down by the Hon'ble
Apex Court the degree of satisfaction at the time of summoning
additional accused persons should be much higher than the
ordinary circumstance. As such this court is of the opinion that
the application has been filed prematurely and the same is
devoid of merits at this juncture. It is made clear that if the
materials are available subsequently, the accused shall be at
liberty to file application under Section 319 of Cr.P.C if advised.
By pointing out the said aspects, the points for consideration is
answered in the Negative.
34. Point No.2: In view of my findings on point No.1, I
proceed to pass the following:
ORDER
The application filed by accused No.4 S.Muthaiah under Section 319 of Cr.P.C., is hereby dismissed.
For FDT, call on 9-01-2025."
The concerned Court has misdirected itself in considering that those witnesses have not sought pardon. If they have not sought pardon, they cannot be examined as accused. An accused can seek pardon and become an approver and depose against the other accused. It is ununderstandable as to how prosecution witnesses can seek pardon and depose against the other accused. But, in the case at hand they are witnesses who are participants in the crime. Participants in the crime to some extent, as they have admitted 32 signing blank documents. If they admit signing blank documents, then they become accomplice, along with other accused who could be charged with some of the offences. Therefore, it is rudimentary that an accused cannot be a witness on behalf of the prosecution, and a person who is admittedly guilty cannot run away from punishment, merely because he has been arrayed as a witness. He cannot be in a position of prosecution witness if he is particeps criminis, except in accordance with law. In that light, the concerned Court has fallen in error to have rejected the application. The application should have merited consideration and the procedure stipulated in law qua Section 319 of the Cr.P.C. ought to have been followed. Therefore, the order, impugned becomes unsustainable.
12. For the aforesaid reasons, the following:
ORDER
(i) Criminal Petition is allowed in part.
(ii) The order dated 06-01-2025 passed by the LXXXI Additional City Civil and Sessions Judge and Special Judge for Elected Representatives, MPs/MLAs, 33 Bangalore City in Special C.C.No.116 of 2012 is quashed.
(iii) The concerned Court shall now answer the application under Section 319 of the Cr.P.C. in accordance with law, bearing in mind the observations made in the course of the order.
(iv) The concerned Court is at liberty to regulate its procedure towards compliance with the order passed by this Court. Till the exercise as above gets over, the afore-named witnesses shall not be examined as prosecution witnesses.
_________SD/-________ JUSTICE M.NAGAPRASANNA Bkp CT:MJ