TMI Blog2015 (3) TMI 1417X X X X Extracts X X X X X X X X Extracts X X X X ..... lates 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 kil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. - CRIMINAL APPEAL NO. 454 OF 2015 (ARISING OUT OF SLP (CRIMINAL) NO. 9928 OF 2014) - - - Dated:- 16-3-2015 - JASTI CHELAMESWAR AND C. NAGAPPAN, JJ. For the Appellant : A. Sharan, Sr. Adv., Chandra Shekharan, Amit Anand Tiwari, Shakun Sharma, Abhinandan Banerjee, Advs. For the Respondent : M. Karpaga Vinayagam, Sr. Adv., Mayilsamy K., G. Ananda Selvam, Ram Sankar, V.S. Lakshmi, Mehoobu, Kumaran, Muthu Krish ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herein is as follows: Some three months after the death of Vijayan the 2nd Respondent herein L. Venkatesh (who was examined as PW64 and for the sake of convenience hereinafter referred to as PW64 ) was examined by the Police on 11.09.2008 and his statement Under Section 161 Code of Criminal Procedure was recorded. Subsequently, on 26.09.2008, his statement was recorded Under Section 164 Code of Criminal Procedure by the learned Metropolitan Magistrate, George Town, Chennai. Finally, the second Respondent was examined as PW64 in the trial of the abovementioned case. The tenor of all the three statements of PW64 is said to be broadly consistent. (We say so because we have not scrutinized the statements nor we wish to scrutinize the same and record any conclusion as the trial of the criminal case is still pending and it would be inappropriate to record any definite finding at this stage of any matter connected with the said case.) The translated copies of all the three statements of PW64 are placed on record. The substance of the statements is that sometime in November 2007, one Karuna, the second accused had offered to pay PW64 an amount of Rs. 5 lakhs if PW64 killed Vijayan. P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion will be at liberty to approach the court to tender pardon to the 2nd Respondent Under Section 306 of Code of Criminal Procedure and then to examine him as a prosecution witness in order to prove the said conspiracy, if need be. 6. In substance the High Court held that PW64 cannot be prosecuted by summoning him as an additional accused Under Section 319 Code of Criminal Procedure in Sessions Case No. 73 of 2009 on the basis of his evidence in the said Sessions Case as the proviso to Section 132 of the Indian Evidence Act, 1872 (hereinafter referred to as the Evidence Act ) creates an embargo upon such a course of action. However, the High Court held that PW64 could be separately prosecuted for an offence Under Section 120B of the Indian Penal Code, 1860 (hereinafter referred to as Indian Penal Code ) read with Section 302 Indian Penal Code if independent evidence other than the statement Under Section 164 Code of Criminal Procedure of PW64 and his evidence in Sessions Case No. 73 of 2009 are available to prosecute him along with A2 and A3. 7. In our opinion, the second conclusion recorded by the High Court contained in para 64 extracted above is really uncalled for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , property possession of which is alleged to have been transferred by any such offence committed by the first named persons, or of abetment of or attempting to commit any such last-named offence; (f) persons accused of offences Under Sections 411 and 414 of the Indian Penal Code (45 of 1860), or either of those sections in respect of stolen property the possession of which has been transferred by one offence; (g) persons accused of any offence under Chapter XII of the Indian Penal Code (45 of 1860) relating to counterfeit coin and persons accused of any other offence under the said Chapter relating to the same coin, or of abetment of or attempting to commit any such offence; and the provisions contained in the former part of this Chapter shall, so far as may be, apply to all such charges: Provided that where a number of persons are charged with separate offences and such persons do not fall within any of the categories specified in this section, the Magistrate or Court of Session may, if such persons by an application in writing, so desire, and if he or it is satisfied that such persons would not be prejudicially affected thereby, and it is expedient so to do, try al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... illegal act or an act which is not illegal through illegal means. 13. In Major E.G. Barsay v. State of Bombay AIR 1961 SC 1762, this Court held thus: The gist of the offence is an agreement to break the law. The parties to such an agreement will be guilty of criminal conspiracy, through the illegal act agreed to be done has not been done. 14. In State (NCT of Delhi) v. Navjot Sandhu alias Afsan Guru (2005) 11 SCC 600, this Court after analyzing the history of the offence of conspiracy held as follows: 88. Earlier to the introduction of Sections 120A and 120-B, conspiracy per se was not an offence under the Penal Code except in respect of the offence mentioned in Section 121A. However, abetment by conspiracy was and still remains to be an ingredient of abetment under clause secondly of Section 107 Indian Penal Code. The punishment therefor is provided under various sections viz. Sections 108 to 117. Whereas Under Section 120A, the essence of the offence of criminal conspiracy is a bare agreement to commit the offence, the abetment Under Section 107 requires the commission of some act or illegal omission pursuant to the conspiracy. A charge Under Sections 107/109 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are being tried were committed in the course of the same transaction . The High Court examined this question and came to the conclusion that there were three different conspiracies; (i) between A-2 and PW64, (ii) between PW64 and A-3, (iii) between A-2 and A-3 to A-7 and recorded a conclusion; Therefore, I hold that the conspiracies committed by A2 and the 2nd Respondent/P.W. 64 and the conspiracy between the 2nd Respondent/P.W. 64 and A3 have got nothing to do with the subsequent conspiracy hatched between A2, A3 and the rest of the accused. 18. After such a conclusion, the High Court placing reliance on Balbir v. State of Haryana and Anr. (2000) 1 SCC 285 and another judgment of the Gauhati High Court in M.L. Sharma and Ors. v. Central Bureau of Investigation 2008 Crl. L.J. 1725 reached the conclusion that PW64 could not be tried together with the other accused already facing trial in Sessions Case No. 73 of 2009, as the said three conspiracies do not form part of the same transaction From these judgments, it is crystal clear that there is a vast difference between the expression in respect of the same subject-matter and in the course of the same transaction. Here, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cted together as to form are not repeated after the words same transaction in Section 239. What has to be ascertained then is whether these words are also to be read in all the clauses of Section 239 which refer to the same transaction. Section 235(1), while providing for the joint trial for more than one offences, indicates that there must be connection between the acts and the transaction. According to this provision there must thus be a connection between a series of acts before, they could be regarded as forming the same transaction. What is meant by same transaction is not defined anywhere in the Code. Indeed, it would always be difficult to define precisely what the expression means. Whether a transaction can be regarded as the same would necessarily depend upon the particular facts of each case and it seems to us to be a difficult task to undertake a definition of that which the Legislature has deliberately left undefined. We have not come across a single decision of any Court which has embarked upon the difficult task of defining the expression. But it is generally thought that where there is proximity of time or place or unity of purpose and design or continuity of ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e trials. But here, again, if those offences are alleged not to be wholly unconnected but as forming part of the same transaction the only consideration that will justify separate trials would be the embarrassment or difficulty caused to the accused persons in defending themselves. We entirely agree with the High Court that joint trial should be founded on some principle. [Emphasis supplied] (v) This Court recorded a final conclusion that the Andhra Pradesh High Court was wrong in setting aside the conviction on the ground that there was a misjoinder of the charges and held; 33. ...Merely because the accused persons are charged with a large number of offences and convicted at the trial the conviction cannot be set aside by the appellate court unless it in fact came to the conclusion that the accused persons were embarrassed in their defence with the result that there was a failure of justice. For all these reasons we cannot accept the argument of learned Counsel on the ground of misjoinder of charges and multiplicity of charges. 22. According to us, the principle enunciated in Ganeswara Rao case is that where several persons are alleged to have committed several ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ess, this Court referred to Ganeswara Rao case and extracted certain passages. 24. In our opinion, the reference to Ganeswara Rao case in Balbir case is not really necessary. Ganeswara Rao case was a case falling Under Section 223(d) (Section 239 of old Code of Criminal Procedure) which contemplates different offences committed by different persons. In Balbir case, the offence is only one. It is the murder of Om Prakash. Different persons are accused not collectively but individually of having committed the murder of Om Prakash. Therefore, Section 223(d) would have no application to Balbir case. 25. At any rate, the reliance placed on Balbir case by the High Court in the case on hand, in our opinion, is wholly misplaced. It is not a case of either the prosecution or PW64 that the murder of Vijayan was committed by the persons other than the accused facing the trial. PW64 only gave evidence as to the genesis of the conspiracy to kill Vijayan of which various accused and also PW64 are parties at different points of time. Going by the test laid down in Ganeswara Rao case, assuming the correctness of the conclusion recorded by the High Court that there are three different con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... directly 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. of the Evidence Act, the content of PW64's deposition is not evidence within the meaning of Section 319 of the Code of Criminal Procedure to form the basis for summoning of PW64 as an accused to be tried along with the other accused. 31. The High Court on an elaborate consideration of the various authorities and the legal position came to the conclusion; 63. In view of all the above discussions, I hold that the evidence of the 2nd Respondent, as a prosecution witness before the trial court, and the incriminating answers given by him amount to compelled testimony falling within the sweep of Section 132 of the Evidence Act and thus, he is protected by the proviso to Section 132 of the Evidence Act. (Emphasis supplied) 32. The learned Counsel for the App ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idavit and deposition were admissible evidence, whereas two Judges held that only affidavit was admissible, but not the deposition. (Dissenting opinion was written by Justice Muttusami Ayyar with whom Justice Kernan agreed.) (iii) Insofar as the deposition of Vallaba Das in the summary suit, the basic issue was whether the compulsion contemplated Under Section 132 is compulsion of law arising out of a statutory obligation or compulsion by the presiding Judge by not excusing the witness from answering any particular question put to him. 35. Chief Justice Turner commenced from the premise that Under Section 14 of the Indian Oaths Act, 1873 (corresponding to Section 8 of the Oaths Act, 1969), every person giving evidence on any subject before any court (or a person authorized to administer oaths and affirmations) shall be bound to state the truth of such subject and the Court was the authority to either compel or excuse the witness from complying with the requirement of the above-mentioned rule. Turner, CJ examined the scheme of Sections 121 to 132 of the Evidence Act and held that the expressions compelled and permitted employed in those sections are so used as to pre- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ness should go through the form of asking and being refused to be excused. 38. Coming to the question of the admissibility of the affidavit of Vallaba Doss, (a) Justice Ayyar opined that since the affidavit given in the summary suit was given by Vallaba Doss in his capacity as a party (but not as a witness) to the suit with a view to obtaining leave to defend the suit, it was a voluntary statement made by Vallaba Doss without any compulsion (either from the Judge or of law) within the meaning of Section 132 of the Evidence Act, and therefore, admissible evidence against Vallaba Doss, the subsequent prosecution. (b) Justice Kernan agreed fully with the views of Justice Ayyar. (c) Turner, CJ held: If I am right in the construction I have put on the language of Section 132, it follows that the affidavit on which the accused obtained leave to defend was also admissible. 39. The scope of Section 132 of the Evidence Act fell for consideration of this Court in Laxmipat Choraria and Ors. v. State of Maharashtra (1968) 2 SCR 624. Three Appellants (brothers) were convicted for the offence Under Section 120B of the Indian Penal Code and Section 167(81) of the Sea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich the witness is compelled to give exposes him to any arrest or prosecution or can it be proved against him in any criminal proceeding except a prosecution for giving false evidence by such answer. In other words, if the customs authorities treated Ethyl Wong as a witness and produced her in court, Ethyl Wong was bound to answer all questions and could not be prosecuted for her answers. Mr. Jethmalani's argument that the Magistrate should have promptly put her in the dock because of her incriminating answers overlooks Section 132 (proviso). In India the privilege of refusing to answer has been removed so that temptation to tell a lie may be avoided but it was necessary to give this protection. The protection is further fortified by Article 20(3) which says that no person accused of any offence shall be compelled to be a witness against himself. This article protects a person who is accused of an offence and not those questioned as witnesses. A person who voluntarily answer questions from the witness box waives the privilege which is against being compelled to be a witness against himself, because he is then not a witness against himself but against others. Section 132 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 161(2) and opined that ..... we are inclined to the view, terminological expansion apart, the Section 161(2) of the Code of Criminal Procedure is a parliamentary gloss on the constitutional clause . This Court also recognised that protection afforded by Section 161(2) is wider than the protection afforded by Article 20(3) in some respects. ...The learned Advocate General, influenced by American decisions rightly agreed that in expression Section 161(2) of the Code might cover not merely accusations already registered in police stations but those which are likely to be the basis for exposing a person to a criminal charge. Indeed, this wider construction, if applicable to Article 20(3), approximates the constitutional clause to the explicit statement of the prohibition in Section 161(2). This latter provision meaningfully uses the expression 'expose himself to a criminal charge'. Obviously, these words mean, not only cases where the person is already exposed to a criminal charge but also instances which will imminently expose him to criminal charges. In Article 20(3), the expression 'accused of any offence' must mean formally accused in praesenti not in futuro-not e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny offence. and 26 Section 26. Confession by accused while in custody of police not to be proved against him.--No confession made by any person whilst he is in the custody of a police officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person.Explanation.--In this section Magistrate does not include the head of a village discharging magisterial functions in the Presidency of Fort St. George or elsewhere, unless such headman is a Magistrate exercising the powers of a Magistrate under the Code of Criminal Procedure, 1882 (10 of 1882). of the Evidence Act which make a confession made to a police officer or a confession made while in the custody of the police inadmissible in evidence. (iii) The proviso to Section 132 of the Evidence Act, in our opinion, embodies another facet of the rule against self-incrimination. 46. 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 (supra), the policy Under Section 132 appears to be to secure the evidence from whatever sources it i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... annot be tried together with the rest of the accused in one and the same trial on the ground that these offences have not been committed in the course of the same transaction, then, there is nothing illegal in examining the 2nd Respondent as a witness for the prosecution without pardon Under Section 306 of Code of Criminal Procedure. In other words, suppose, the trial of A2 and A3 is conducted in respect of the offence of conspiracy, allegedly committed by them along with the 2nd Respondent, in that trial, if the 2nd Respondent is to be examined as a prosecution witness, certainly, pardon Under Section 306 Code of Criminal Procedure is mandatory and without such pardon, he cannot be examined as a prosecution witness. Thus, the crux of the issue involved in this case is whether the 2nd Respondent could be tried together with the rest of the accused in the present trial. 52. The High Court recorded the conclusion that the examination of PW64 as a prosecution witness without securing pardon Under Section 306 Code of Criminal Procedure is illegal if PW64 is a party to the conspiracy alongwith A2 and A3 without assigning any reason in support of such a conclusion. 53. The ques ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he was a competent witness although her evidence could only be received with the caution necessary in all accomplice evidence. 134. On this point, really, Appellant cannot be heard to complain. of the so called co-conspirators some have been examined already as prosecution witnesses; some others proposed to be so examined; and two others, it would appear, had died in the interregnum. The appeal on the point has no substance and would require to be dismissed. We must now turn to the larger issue raised in the appeal. 55. 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. 56. Unfortunately before us, except asserting the proposition no clear submissions are made in this regard. In the circumstances, we do not propose to examine the proposition in the present case. However, in view of the fact Section 307 Code of Criminal Procedure autho ..... X X X X Extracts X X X X X X X X Extracts X X X X
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