2015 (3) TMI 1417 - SC - Indian Laws

Murder - allegation is that the deceased was proceeding in his car, the assailants came in a white Ambassador car, intentionally dashed the said car against the car driven by the deceased - Section 319 of the Code of Criminal Procedure - whether on the facts mentioned earlier the Sessions Court is obliged to summon PW64 as an additional accused exercising the power Under Section 319 of the Code of Criminal Procedure? - HELD THAT - The Section authorizes the Court making any inquiry into or conducting the trial of an offence to proceed against any person (other than the accused facing trial) subject to two conditions (i) that from the evidence it appears to the Court that such a person has committed any offence , and (2) that such a person could be tried together with the accused. When could a person appearing to have committed an offence be tried together with the accused already facing trial? - HELD THAT - As rightly noticed by the High Court, the only clause if at all relevant for the purpose of the present case is Section 223(d) which stipulates that persons accused of different offences committed in the course of the same transaction could be charged and tried together - It is admitted on all hands that except the evidence of PW64 and his statement Under Section 164 Code of Criminal Procedure there is no other evidence on record of the Sessions Court to indicate that PW64 has committed any offence. Both the evidence and the statement Under Section 164 Code of Criminal Procedure of PW64 prima facie indicate a conspiracy to kill Vijayan to which conspiracy PW64 was a party at least at the initial stage. According to PW64, he developed cold feet after the initial stage and withdrew from the conspiracy and did not participate in the actual killing of Vijayan. Whether his assertions in this regard are true and, if true, would legally absolve him of guilt are questions with which we are not concerned for the purpose of this case. Therefore, if law permits the use of the content of either the evidence given at trial or the statement made Under Section 164 Code of Criminal Procedure by PW64, he could be tried for an offence punishable Under Section 120B Indian Penal Code. Because, on his own admission, PW64 agreed to kill Vijayan for a price and accepted money from A2 towards the part payment of such price and also drafted A3 into the conspiracy. Before this Court, the main argument was that Ethyl Wong could not be examined as a witness because (a) no oath could be administered to her as she was an accused person since Section 5 of the Indian Oaths Act bars such a course and (b) it was the duty of the prosecution and/or the Magistrate to have tried Ethyl Wong jointly with the Appellants. The breach of the last obligation vitiated the trial and the action was discriminatory. In the alternative, even if the trial was not vitiated as a whole, Ethyl Wong's testimony must be excluded from consideration and the appeal reheard on facts here or in the High Court . - In substance, this Court held that once the prosecution chose to examine Ethyl Wong as a witness she was bound to answer every question put to her. In the process, if the answers given by Ethyl Wong are self-incriminatory apart from being evidence of the guilt of the others she could not be prosecuted on the basis of her deposition in view of the proviso to Section 132 of the Evidence Act - This Court opined that the proviso to Section 132 of the Evidence 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. Though such a fundamental right is available only to a person who is an accused of an offence, the proviso to Section 132 of the Evidence Act 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. Section 132 existed on the statute book from 1872 i.e. for 78 years prior to the advent of the guarantee Under Article 20 of the Constitution of India. As pointed out by Justice Muttusami Ayyar in Gopal Doss, the policy Under Section 132 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 process 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 . The proviso to Section 132 of the Evidence Act is a facet of the rule against self incrimination and the same is statutory immunity against self incrimination which deserves the most liberal construction. Therefore, no prosecution can be launched against the maker of a statement falling within the sweep of Section 132 of the Evidence Act on the basis of the answer given by a person while deposing as a witness before a Court. The High Court rightly refused to summon PW64 as an accused to be tried alongwith the Appellant and others - Appeal disposed off.

Summary

Issues Involved:
1. Whether the Sessions Court was justified in declining to summon PW64 as an additional accused under Section 319 of the Code of Criminal Procedure.
2. Whether PW64 could be tried together with the other accused for the offence of conspiracy to kill Vijayan.
3. The applicability of the proviso to Section 132 of the Indian Evidence Act to the testimony of PW64.
4. The necessity of securing pardon under Section 306 of the Code of Criminal Procedure before examining PW64 as a prosecution witness.

Detailed Analysis:

1. Declining to Summon PW64 as Additional Accused:
The High Court held that PW64 could not be prosecuted by summoning him as an additional accused under Section 319 of the Code of Criminal Procedure in Sessions Case No. 73 of 2009 based on his evidence in the said Sessions Case. The proviso to Section 132 of the Indian Evidence Act created an embargo on such a course of action. However, the High Court noted that PW64 could be separately prosecuted for an offence under Section 120B of the Indian Penal Code read with Section 302 if independent evidence other than his statement under Section 164 of the Code of Criminal Procedure and his evidence in Sessions Case No. 73 of 2009 were available.

2. Joint Trial of PW64 with Other Accused:
The High Court concluded that PW64 could not be tried together with the other accused facing trial for the charge of murder of Vijayan. The High Court found that there were three different conspiracies involving different parties, which did not form part of the same transaction. Therefore, PW64 could not be tried along with the other accused under Section 223(d) of the Code of Criminal Procedure. However, the Supreme Court disagreed, stating that the High Court misread the principle laid down in Balbir v. State of Haryana and Anr. The Supreme Court opined that the offences were not wholly unconnected and could be tried together unless it caused embarrassment or difficulty to the accused in defending themselves. Since it was not the case of the accused that they would face difficulty, the Supreme Court concluded that PW64 could be tried along with the other accused.

3. Applicability of Proviso to Section 132 of the Indian Evidence Act:
The High Court held that the evidence of PW64 as a prosecution witness before the trial court amounted to compelled testimony falling within the sweep of Section 132 of the Evidence Act, thus protecting him from prosecution based on his testimony. The Supreme Court agreed, emphasizing that the proviso to Section 132 is a statutory immunity against self-incrimination, which deserves the most liberal construction. Therefore, no prosecution could be launched against PW64 based on his answers given while deposing as a witness.

4. Securing Pardon under Section 306 of the Code of Criminal Procedure:
The High Court noted that if PW64 were to be tried for the conspiracy along with A2 and A3, his examination as a prosecution witness without securing pardon under Section 306 of the Code of Criminal Procedure would be illegal. The Supreme Court, however, did not delve deeply into this issue but suggested that the trial court should grant pardon to PW64 after following the appropriate procedure of law and record his evidence afresh.

Conclusion:
The Supreme Court upheld the High Court's decision not to summon PW64 as an additional accused under Section 319 of the Code of Criminal Procedure. It agreed that PW64's testimony was protected under the proviso to Section 132 of the Indian Evidence Act. However, it disagreed with the High Court's conclusion that PW64 could not be tried along with the other accused, stating that the offences were not wholly unconnected. The Supreme Court directed the trial court to grant pardon to PW64 and record his evidence afresh.