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Punjab High Court · body

2016 DIGILAW 2022 (PNJ)

HARDEV SINGH v. STATE OF PUNJAB

2016-08-09

M.JEYAPAUL, SNEH PRASHAR

body2016
JUDGMENT : 1. Petitioners Hardev Singh and Kultar Singh have challenged the order passed by the trial Court under Section 319 Cr.P.C. summoning the petitioners as additional accused to face the trial of the case in FIR No.244 of 2004, Police Station C-Division, Amritsar. 2. The first information report in this case was registered on 31.10.2004, the investigation was completed on 18.12.2004 and the charge was framed by the trial Court on 9.2.2005 under Sections 306 and 388 IPC. On the basis of the application filed under Section 319 Cr.P.C. during the pendency of trial, petitioners Hardev Singh and Kultar Singh were ordered to be summoned as additional accused. The trial Court having considered the materials on record including the evidence of petitioner Hardev Singh who was examined as PW24 and DW1 Sarabjit Singh and the FSL reports submitted by the investigating agency decided to summon the petitioners. 3. Learned Single Judge having formulated the following questions of law referred the matter to the Larger Bench for hearing:- "1. Whether for the purpose of exercising power under Section 319 Cr.P.C, a person who has deposed as prosecution witness can be summoned to face trial as additional accused on the basis of his own statement? 2. Whether such an exercise would be against the provision of Section 132 of the Evidence Act and would amount to self incrimination? 3. Whether trial court was right in placing reliance upon certain deposition of defence witness (DW/1) and the FSL reports while summoning petitioners to face trial? 4. Whether in the facts and circumstances of the case, the summoning order is within the ambit of parameters laid down in Hardeep Singh v. State of Punjab, 2014 (3) SCC 92 ?" 4. These two revisions which are connected with each other have been listed before us after getting appropriate orders from the Hon'ble the Acting Chief Justice. In the above facts and circumstances, lets us take up jointly first and second questions of law formulated for determination. 5. Learned senior counsel appearing for petitioner Hardev Singh vehemently submitted referring to a decision of Hon'ble Supreme Court in R. Dineshkumar @ Deena v. State Rep. through Inspector of Police and others, 2015(2) RCR (Criminal) 297, that there is no scope for summoning the witness under Section 319 Cr.P.C. based on self-incriminating evidence adduced by him. 5. Learned senior counsel appearing for petitioner Hardev Singh vehemently submitted referring to a decision of Hon'ble Supreme Court in R. Dineshkumar @ Deena v. State Rep. through Inspector of Police and others, 2015(2) RCR (Criminal) 297, that there is no scope for summoning the witness under Section 319 Cr.P.C. based on self-incriminating evidence adduced by him. It is his submission that there is a privileged protection for such a witness from prosecution under Section 132 of the Evidence Act. It is relevant to incorporate the following provision under Section 132 of the Evidence Act:- "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." 6. Under Section 132 of the Evidence Act a witness shall not be excused from answering as to any question relevant to the matter in issue in any criminal proceeding on the ground that answer to such question will incriminate or may tend directly or indirectly to expose him to a penalty or forfeiture of any kind. No answer given by a witness in terms of the above statutory compulsion would expose him to any arrest or prosecution. It cannot also be proved against him in any criminal proceeding except prosecution for giving a false evidence by such answer. The privilege of refusal to answer by a witness is no longer available in India. That was the reason why such a protection has been contemplated under Section 132 of the Indian Evidence Act. 7. A question may arise as to whether a witness who voluntarily deposed before the Court is privileged to have the protection provided from criminal prosecution provided therein. In Emperor v. Chatur Singh and Ors., (1921) ILR 433 All. That was the reason why such a protection has been contemplated under Section 132 of the Indian Evidence Act. 7. A question may arise as to whether a witness who voluntarily deposed before the Court is privileged to have the protection provided from criminal prosecution provided therein. In Emperor v. Chatur Singh and Ors., (1921) ILR 433 All. 92, it has been held as follows :- "I personally have no doubt whatsoever that the accused persons in the present case were compelled within the meaning of the law to answer the questions put to them when they entered the witness box. A voluntary statement by a witness may stand on a totally different footing to an answer given by him as a witness on oath to a question put to him either by the court or counsel on either side, specially when the question is on a point which is relevant to the case, It would be too much to ask of an ordinary layman that he should know all the terms of Section 132 of the Indian Evidence Act and that he should be prepared to protest against every question put to him in order to protect himself under that section. I think, if a common sense meaning be given to the word "compelled" in Section 132, it is clear that in the present case these five persons were compelled to answer. They were under the direct compulsion of the law and of the court and in my opinion they were protected by that section." 8. Petitioner Hardev Singh who was examined as PW 24 was summoned by the Court as a witness on the side of the prosecution. It was not a voluntary statement that he has made during the course of chief-examination. He was confronted with volley of questions. During the course of cross-examination, he had answered all the questions put, as they were relevant to the matter in issue. He cannot lawfully withhold the answers on the ground that his answer to the question would incriminate him. In other words, he was under compulsion of law and of the Court in the light of the provision of Section 132 of the Evidence Act to unfold his answer. Therefore, it is construed that petitioner Hardev Singh was under compulsion in terms of Proviso to Section 132 of the Evidence Act to offer answers during the cross-examination. 9. In other words, he was under compulsion of law and of the Court in the light of the provision of Section 132 of the Evidence Act to unfold his answer. Therefore, it is construed that petitioner Hardev Singh was under compulsion in terms of Proviso to Section 132 of the Evidence Act to offer answers during the cross-examination. 9. Similar issue arose for determination before the Hon'ble Supreme Court R. Dineshkumar @ Deena (supra), wherein it has been held as follows:- "42. Dealing with the immunity conferred under Section 132, this Court held thus: "Now there can be no doubt that Ethyl Wong was a competent witness. Under Section 118 of the Indian Evidence Act all persons are competent to testify unless the court considers that they are prevented from understanding the questions put to them for reasons indicated in that section. Under Section 132 a witness shall not be excused from answering any question as to any matter relevant to the matter in issue in any criminal proceeding (among others) upon the ground that the answer to such question will incriminate or may tend directly or indirectly to exposes him to a penalty or forfeiture of any kind. The safeguard to this compulsion is that no such answer which the witness is compelled to give exposes him to any arrest or prosecution or can 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. 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 Indian Evidence Act sufficiently protects him since his testimony does not go against himself. In this respect the witness is in no worse position than the accused who volunteers to give evidence on his own behalf or on behalf of a co-accused. There too the accused waives the privilege conferred on him by the article since he is subjected to cross-examination and may be asked questions incriminating him." xxxxxxxxxxxxxxxxxxxx 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 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". We are in complete agreement with the view of Justice Ayyar on the interpretation of Section 132 of the Evidence Act. 47. 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." 10. 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." 10. The Hon'ble Supreme Court has categorically held in the above decision that a witness who has got statutory immunity against self-incrimination due to the compulsion of law and of the Court cannot at all be summoned under Section 319 Cr.P.C. and prosecuted. In other words, the question of summoning a witness to face the trial as additional accused under Section 319 Cr.P.C. on the basis of the answers supplied by him on compulsion of law or of Court does not survive for legal scrutiny. Such an exercise is totally against the statutory immunity provided under Proviso to Section 132 of the Evidence Act. The first and second questions of law formulated by the learned Single Judge are answered accordingly. Let us now take up the 3rd and 4th questions of law formulated by the learned Single Judge for determination. 11. It is pertinent to advert to the following provision of Section 319 Cr.P.C. before taking a decision on this issue:- "319. Power to proceed against other persons appearing to be guilty of offence.- (1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed. (2) Where such person is not attending the Court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid. (3) Any person attending the Court, although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed. (3) Any person attending the Court, although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed. (4) Where the Court proceeds against any person under sub-section (1), then- (a) the proceedings in respect of such person shall be commenced afresh, and the witnesses re-heard; (b) subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced." 12. In Hardeep Singh v. State of Punjab and others, 2014 (1) RCR (Criminal) 623, the Hon'ble Supreme Court has held as follows:- "69. Ordinarily, it is only after the charges are framed that the stage of recording of evidence is reached. A bare perusal of Section 227 Cr.P.C. 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 Cr.P.C. 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 Cr.P.C., 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 Cr.P.C. xxxxxxxxxxxxxxxxxxxx 77. 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 utilize 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. xxxxxxxxxxxxxxxxxxxx 79. The word "evidence" therefore has to be understood in its wider sense both at the stage of trial and, as discussed earlier, even at the stage of inquiry, as used under Section 319 Cr.P.C. The court, therefore, should be understood to have the power to proceed against any person after summoning him on the basis of any such material as brought forth before it. The duty and obligation of the court becomes more onerous to invoke such powers cautiously on such material after evidence has been led during trial. 80. In view of the discussion made and the conclusion drawn hereinabove, the answer to the aforesaid question posed is that apart from evidence recorded during trial, any material that has been received by the court after cognizance is taken and before the trial commences, can be utilised only for corroboration and to support the evidence recorded by the court to invoke the power under Section 319 Cr.P.C. The `evidence' is thus, limited to the evidence recorded during trial." 13. In view of the above dictum, all the materials produced by the investigating official can be used as a corroboration for the evidence recorded during the course of trial to enable the Court to exercise power under Section 319 Cr.P.C. for the purpose of summoning a person as an additional accused to face the trial. The trial Court should bear in mind while invoking the provision under Section 319 Cr.P.C. that much stronger evidence is available to summon a person to face the trial. In other words, neither mere probability of his complexity or simple prima facie case made out against him will not expose a person to the rigors of Section 319 Cr.P.C. 14. In the instant case, the evidence adduced on the side of the defence and the FSL reports would squarely fall under the category of Evidence during trial as contemplated under Section 319 Cr.P.C. But it should appear to the Court from such evidence that a person sought to be summoned has also committed the offence. The 3rd question of law is thus answered by us. 15. The 3rd question of law is thus answered by us. 15. As regards the 4th question of law, having highlighted the parameters in Hardeep Singh's case (supra), we leave it to the wisdom of the learned Single Judge to decide whether the summoning order under challenge falls squarely under the dictum laid in the aforesaid case. 16. We direct the Registry to post both the criminal revisions for final disposal before the learned Single Judge in the light of the determination of reference made to us. 17. The reference is answered accordingly.