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Madhya Pradesh High Court · body

2011 DIGILAW 918 (MP)

Rajesh Jain v. State of M. P.

2011-08-10

M.C.GARG

body2011
JUDGMENT The petitioner, who is a Jeweler and running a Jewellery shop in Shujalpur was arrayed as a prosecution witness in Sessions Trial Case No. 166 of 09 (State Vs. Jamnaprasad) under Sections 302, 201 and 397 of the Penal Code. 2. The petitioner was examined as a prosecution witness as P.W. 15 in the aforesaid case on 15th April, 10. In his deposition he stated that on 1st March, 09 one Gangaram was brought to his shop by the Police. At his instance, one silver piece was taken into possession by the Police from his shop, vide Exh. P-21. He made the following statements :- xxxx    xxx 3. On the very next date, the learned Addl. Sessions Judge, who was trying this case, by exercising powers under Section 319, Cr.PC, issued a notice to the petitioner as well as Investigating Officer for impleading the petitioner as an accused for commission of offence under Section 411 of the Penal Code, as the property stolen in robbery was seized from him. A reply was filed by the petitioner to the aforesaid notice on 7-6-10, which reads as under :- xxx 4. A similar reply was also given by the prosecution. Despite that the learned Addl. Sessions Judge passed an order, dated 1 8-5- 10 to implead the petitioner for commission of an offence under Section 411 of the Penal Code. The relevant portion of the said order reads as under : - xxxx 5. It is against the aforesaid, petitioner has approached this Court. Petitioner has submitted that the impugned order passed by the learned Addl. Sessions Judge, is violative of the proviso to Section 132 of Evidence Act, which protect a witness from arrest or prosecution with respect to anything stated by him while being examined as a prosecution witness. Section 132 reads as under :- "132. Witness not excused from answering on ground that answer will criminate. Sessions Judge, is violative of the proviso to Section 132 of Evidence Act, which protect a witness from arrest or prosecution with respect to anything stated by him while being examined as a prosecution witness. Section 132 reads 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 to any criminal proceeding, except a prosecution for giving false evidence by such answer. Comments : Proviso to Section 132, clearly protects 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. Approver is absolutely protected from criminal prosecution on the basis of the evidence to be given by him when examined by the prosecution as an approver. ( AIR 1989 SC 598 )." 6. Learned petitioner's Counsel has also cited a judgment to support his contention delivered by the Division Bench of Kerala High Court in the case of M.P. Gangadharan Vs. State S.I. of Police, reported in 1989 Cri.LJ 2455. The relevant observations made by the Division Bench in Paras 4, 5, 6, 1 and 8 reads as under :- "4. Thomas, J. had occasion to consider these aspects in Kunhappan Vs. 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 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 Vs. 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. 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.PC 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 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 to 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 the destination of the rice was D.W. 1 shop. In the absence of any evidence connecting the petitioner with the defence 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.PC has to be very sparingly used. It can only be invoked for really compelling reasons. In Municipal Corporation of Delhi Vs. 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.PC has to be very sparingly used. It can only be invoked for really compelling reasons. In Municipal Corporation of Delhi Vs. Ram Kishan Rohtagi, (1983) 1 SCC 1 = 1983 Cri.LJ 159, it has been held that Section 319, Cr.PC is really an extraordinary 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 reasons is there to invoke the section 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 Nos. 1 and 2 in S.T. 2 of 1988, the impugned order cannot be sustained." 7. Thus, it is apparent that when a witness is summoned by the Court and answers a question, which may be of a nature incriminating the witness and make him accused of committing some offence, he cannot be prosecuted as he is protected under Section 132 of Evidence Act. 8. In view of aforesaid, the impugned order dated 18-5-10 passed by Addl. Sessions Judge, Shujalpur cannot be sustained. The same is hereby set aside. Consequently, the petitioner is acquitted of the charge framed against him. He is on bail. His bail bonds shall stand discharged. C.C. as per rules.