CRL RC/1795/2003 of HARIHARAN Vs STATE BY DEPUTY SUPERINTENDENT on 16 December 2003

:O R D E R

Criminal Revision Case No.1795 of 2003 has been filed by one Hariharanwho is A-2 in the Sessions Case No.87 of 2003 on the file of the AdditionalDistrict and Sessions Judge (Fast Track Court No.1), Chennai and AccusedNos.11, 16 and 17 in the above S.C.No.87/2003 viz., one Sampath, Gunasekaran @Guna and Naraimudi Ganesan @ Ganesan have filed Criminal Revision Case No.1796of 2003.

2. The above four revision petitioners and 14 others are facingtrial before the Additional District and Sessions Judge (Fast Track CourtNo.1) Chennai in S.C.No.87 of 2003. The charges framed against the saidaccused persons in the above case are as follows:

------------------------------------------------------------------------------------------------ Charge No. and against whom Offences

------------------------------------------------------------------------------------------------1.A1 to A18 120B IPC2.A4,A7,A10,A11,A14,A15, A16 and A17 365 IPCA1,A12,A3,A5,A6,A8,A9,A13 and A19 365 r/w 109 IPC3.A1 to A11, A14 to A18 387 IPC4.A-12 419, 420 and 387 r/w109 IPC5.A3,A4,A6 to A8, A10,A11, A14 to A18 302 IPC6.A3 to A11, A13 to A18 347 and 364 IPCA1,A2 & A12 347 r/w 109 &364 r/w 109 IPC7.A3,A5 to A8, A10,A11 &A13 to A18 201 IPC

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The trial of the case started and witnesses P.W.1 to P.W.9 have been examined.P.W.10 Venugopal was examined by the prosecution in chief. According to thepetitioners, a plain reading of the chief examination of P.W.10 Venugopalclearly established that he participated in the alleged crime from thebeginning to the end and thereafter he absconded for nearly four months andsubsequently he appeared on 1.5.2001 before the respondent who in turnrecorded his statement under Section-161 Cr.P.C. As per his evidence inCourt, he was fully aware of the object of the conspiracy and other alliedoffences committed by himself and other persons. His evidence further revealsthat he procured the premises for the commission of the crime, provided hishousehold articles in the premises for commission of the crime, gave his caron hire to the accused persons, financed to the alleged accused persons,witnessed the deceased who was chained in that premises, witnessed the body ofthe deceased, booked rooms in his name in the hotels for stay of the accusedpersons and paid the hotel bills which will categorically establish that PW10Venugopal is a "particepes criminis" ( a partner in crime). The respondent isfully aware that PW10 Venugopal is one of the co-accused in the alleged crimebut for the reasons best known to them, he was not arrayed as an accused inthe case. The respondent relied upon the said witness's self-incriminatingstatement recorded under sections 161 and 164 Cr.P.C., and cited him aswitness in the charge sheet. If the respondent wanted to examine the saidperson as a witness, the respondent ought to have given a requisition to theChief Metropolitan Magistrate, Chennai to record his confession underSection-164 Cr.P.C., and take him as an approver as contemplated undersections 306 and 308 Cr.P.C., But the respondent himself has acted as a Courtand tendered pardon to the said person Venugopal and cited him as aprosecution witness to prove the case against the petitioners herein andothers. In such circumstances, the petitioners filed petitions underSection-319 of Cr.P.C., before the learned Judge to implead witness P.W.10Venugopal as accused in this case.

3. The respondent filed a counter wherein the respondent contended as follows: Whatever PW-10 has done in this case, he has done itfor commission or to oblige A9 to get some big post in ADMK , that there areno materials as of now to hold tha one of the coconspirators or activelyparticipated with any mensrea. According to the respondent since P.W.10 isonly a witness, there is no need to follow the procedure under Sections 305 to308 Cr.P.C., Because of the proviso to Sec.132 of the Indian Evidence Act,Section 319 Cr.P.C., cannot be resorted to placing a man on trial on his ownevidence which is contrary to the traditions of justice in criminal courts.There is no other evidence as on date to show that PW10 is a co-conspirator orpartner in crime, as the answers given by PW10 is protected under the provisoto Section 132 of the Indian Evidence Act and the same cannot be used as anitem of evidence against him. These petitions have been filed only toprotract the proceedings.

4. The learned trial Judge dismissed the said petitions on the

4. The learned trial Judge dismissed the said petitions on the ground that PW10 cannot be treated as a co-conspirator or active partner inthe crime and his evidence is protected by the proviso to Sec.132 of theIndian Evidence Act. Aggrieved against the said order, the petitioners hereinhave preferred these Criminal Revision Cases.

5. Mr.N.Natarajan learned Senior Counsel appearing for the petitioners would contend that the overt acts committed by P.W.10 Venugopal asdisclosed in the chief examination of the said witness, indicate an agreementto do certain things in pursuance of the conspiracy with the other co-accusedand that he has neither reported to the police about the illegal actscommitted by the co-accused nor did he disassociate from them. According tothe learned senior counsel, P.W.10 himself is a co-conspirator and aconspirator need not know all the material facts of the conspiracy from top tobottom and he could not be taken as a witness without the interference of ajudicial mind and therefore he should also be arrayed as a co-accusedalongwith the other 18 accused in the trial as contemplated under Section 319Cr.P.C.,

6. A perusal of the deposition in Chief Examination of P.W.10

would reveal that he procured the premises, a Semiya Company, in which he wasa partner, for the commission of the crime, provided his household articles inthe said premises to facilitate the commission of the crime, gave his car onhire to the accused persons, paid Rs.1,10,000/- to the accused persons,witnessed the deceased being chained in that premises, witnessed the body ofthe deceased being carried from the upstairs to the` ground and having bookedrooms in his name in the hotels for the stay of the accused persons before andafter the commission of the offence, all of which according to the learnedsenior counsel, would be sufficient to arraign him as partner in the crime. Aperusal of his evidence would show that till his meeting with A3 Manickam, whodeclared that they are going to kidnap M.K.Balan the former MLA, he might haveacted innocently to help a friend. But, after the declaration by A3 that theyare going to kidnap M.K.Balan to extract money and after seeing A3 givingmoney of Rs.100/- to purchase a chain to tie the deceased in his premises andafter the declaration by A3 that they have already kidnapped M.K.Balan and after himself seeing the deceased tied to the cot by chain and also after hearranged hotels for the stay of some of the accused A1, A2 and A12 (wife ofA2), for which he has paid Rs.15,000/- in cash and also Rs.15,000/- by cheque,he could not be called as a mute spectator, but atleast a tool in the hands bythe accused.

7. P.W.10 had no motive towards the deceased or expected any wrongful gain from the deceased. The motive for acting as a tool in the handsof the accused may be that he wanted to get some big post in the ruling partyeither through A3 or A9. The acts mentioned above may not be in pursuance ofa conspiracy hatched earlier. However, it is open to the trial court to cometo the conclusion after his evidence is completed by cross examination of thesaid witness, whether P.W.10 had any role to play in the conspiracy orabetment of the crime or partner to the crime itself.

8. Therefore, now the point to be considered is whether P.W.10

should be added as an accused under section 319 Cr.P.C., or not.

9. The Point:

Sec.319 of Cr.P.C. reads as follows:

"319. Power to proceed against other persons appearing to beguilty 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 hascommitted any offence for which such person could be tried together with theaccused, the Court may proceed against such person for the offence which heappears to have committed.

(2) Where such person is not attending the Court, he may be arrestedor summoned, as the circumstances of the case may require, for the purposeaforesaid.

(3) Any person attending the Court, although not under arrest or upona 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 commencedafresh and the the witness re-heard:

(b) subject to the provisions of clause (a), the case may proceed asif such person had been an accused person when the Court took cognizance ofthe offence upon which the inquiry or trial was commenced."

Old Section-351 of Cr.P.C. has been included as Section 319 (3)&(4) of thePresent Code. The fact that any new person can be arrayed as accusedalongwith the accused facing trial, if the court comes to the conclusion thatthe said person also might have committed the offence is not in dispute. But,such a procedure has to be sparingly used in extraordinary circumstances onlysince Section-319 Cr.P.C., is really an extraordinary power conferred on thecourt. There is no dispute of this aspect between both the sides.

10. Now, the point to be considered is, whether P.W.10 is protected by proviso to Sec.132 of the Indian Evidence Act and whether P.W.10

should be added as an accused by invoking Section 319 of Cr.P.C., The judicialopinions were not unanimous with regard to the protection to be given to awitness under the proviso to Section-132 of the Indian Evidence Act.Section-132 of the Evidence Act reads thus:"132.Witness not excused from answering on ground that answer willcriminate- A witness shall not be excused from answering any question as toany matter relevant to the matter in issue in any suit or in any civil orcriminal proceeding, upon the ground that the answer to such question willcriminate, or may tend directly or indirectly to criminate, such witness, orthat it will expose, or tend directly or indirectly to expose, such witness toa penalty or forfeiture of any kind:

Proviso- Provided that no such answer, which a witness shall be compelled togive, shall subject him to any arrest or prosecution, or be proved against himin any criminal proceeding, except a prosecution for giving false evidence bysuch answer."

The decisions reported in-

1) In Re.Gopal Das (1881) ILR 3 Madras 2712) Padabba Reddi Vs. Iyyala Yarada Reddi(AIR 1929 Madras 236, (1929)(3) Crl.LJ 613)3) Emperor Chaptur Singh ILR 43 All 92 (AIR All 362) 4)Shree Kumaran Lal Vs. Bandi Prasad (AIR 1943 Patna 17 (1943)(44)Crl.L.J.391) and5) Bai Shanta Vs. Umraq Amir (AIR 1926 Bombay 1926(27) Crl.L.J.423) FB)

would show that the judicial opinions were not unanimous with regard to theprotection of witnesses under the proviso of Sec.132 of the Indian EvidenceAct. The controversy has been set at rest by the decision of the SupremeCourt reported in Delhi Administration Vs.Jagit Singh (AIR 1989 SC 598 (1989Crl.L.J.986), the Supreme Court has held as follows:"Therefore, a witness is legally bound to answer any question which isrelevant to the matter in issue even if the answer to such question is likelyto criminate him directly or indirectly. Proviso to S.132 expressly providesthat such answer which a witness is compelled to give shall not subject him toany arrest or prosecution nor the same can be proved against him in anycriminal proceeding except prosecution for giving false evidence by suchanswer. The provisions of proviso to S.132. Evidence Act, clearly protect awitness from being prosecuted on the basis of the answers given by him in acriminal proceeding which tend to criminate him directly or indirectly."

Earlier to that decision, in the decision reported in Kunappan Vs. State ofKerala (1987 (2) Kerala L T 222), Thomas,J., (As His Lordship then was) heldthat- " a voluntary statement made by a witness may stand on a differentfooting and the answers given by a witness either to questions put up by thecourt or by the counsel on either side cannot be said to be voluntarystatements made by him and that it is immaterial whether he objects to thequestion or not. In a case where a party to a civil litigation givesevidence. It is possible to presume that he gives the evidence on his ownaccording similarly. If then accused in a criminal case offers himself to beexamined 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 evidencegiven by a witness summoned by the court. The answer given by a witn ess in acourt either by issuance of summons or by other means can not be equated withthe answer given by a party in a civil litigation or the statement of anaccused as a witness, in a criminal case. The answer given by such a witnesscannot be characterized as a mere voluntary statement and without anycompulsion. Petitioner has not voluntarily adduced evidence before the court.Only on summons he appeared and testified. This is a case where he has beencompelled to answer the question. Left to himself, he would not have comebefore the court to depose. A situation in which a witness is placed when heis examined before a court of law cannot be lost sight of. When a person isexamined as a witness his natural feeling is that he has to answer thequestions. If during the course of the testimony he gives answer criminatinghimself, he can really look forward to the protection under the proviso."

The said Judgement of the Supreme Court has been followed in a Division BenchJudgement reported in M.P.Gandharan Vs. State-S.I of Police (1989

Crl.L.J.2455) wherein the Division Bench has also held that a witness who wassummoned as D.W.1 who gave incriminating answers is clearly protected underthe proviso to Sec.132 of the Evidence Act.

11. In the decision reported in L.Chordia Vs. State of Maharastra ( AIR 1968 SC 938) it has been held as follows:

"Where a person, who acted as a carrier in a conspiracy to smuggle gold inIndia, admitted her role in the statements made to the Customs Officialsinvestigating the case under the Sea Customs Act but, instead of beingincluded in the array of accused and sent up for trial, was examined as awitness against her former associates and that, there could be, no doubt, thatshe was a competent witness. Being selfconfessed criminal, her evidence wasaccomplice evidence and, if subjected to scrutiny and the usual checks forcorroboration, must be held to be received with due caution."

And that,

"No pardon could be tendered to such a witness because the pertinentprovisions of Criminal P.C.did not apply. Nor could she be prevented frommaking a disclosure, if she was so minded. The prosecution was not bound toprosecute her, if they thought that her evidence was necessary to break asmugglers' ring. She was protected by Sec.132( proviso) of the Evidence Acteven if she gave evidence incriminating herself. She was a competent witnessalthough her evidence could only be received with the caution necessary in allaccomplice evidence."

Therefore it is clear that a person who gave incriminating answers whenexamined as witness on the summons from court, cannot be prosecuted on his ownevidence unless there are other evidence to show that he is a partner in thecrime.

12. The decisions referred to by the petitioner reported in-

(1) Smt.Rukhsana Khatoon Vs. Sakhawas Hussain (2002

(2) Crimes 5 5 (SC) and

(2) Rakesh Vs. State of Haryana (2001 (3) Crimes 330 (SC)

are cases in which the person or persons who were named as accused in FIR were not charge sheeted, but during the trial there appeared sufficient evidenceindicating involvement of such accused and on that score they were arrayed asaccused by the trial court.

13. The decision reported in Jai Prakash Vs. State of U.P. (1985

(1) 229, is also a case which deals with the power of the court forapplication of the proviso to Sec.319 Cr.P.C. and deals with the questionwhether the court can take cognizance of the offences without resorting toSec.193 and 209 of Cr.P.C. after committal to the court of Sessions. I havealready mentioned that Sec.351 Cr.P.c., of the old Code has now beenincorporated in Sec.319 Cr.P.C.

14. In the decision reported in Bhagat Dolia Vs. State (1977

Crl.L.J.617) such a situation is dealt with, in which this court held asfollows:(Para4&5)

"4. Mr.C.K.Venkatanarasimhan, the learned counsel for the petitionerinvited my attention to several portions of the evidence of Srinivasan wherehe has admitted that he had signed several tenders in the names of otherpersons and those tenders were eventually sent to the Ennore Thermal SchemeAuthorities for consideration alongwith the Tenders submitted by thepetitioners. The learned counsel, therefore, says that on his own admission,the witness stands self-condemned and, therefore, the Special Judge shouldhave unhesitatingly treated him as a conspirator and an offender and rangedhim along with the other accused in exercise of his powers under Section 351(1)of the Criminal Procedure Code. Appealing as the argument sounds, I amafraid the contention of the petitioners cannot be accepted. Section 351 hasbeen provided in the Code with a design and purpose and for effectiveadministration of justice. The framers of the Code did not want the court tofeel helpless when it found that the prosecution had laid chargesheet onlyagainst some persons concerned in an offence and had left out some otherseither intentionally or unintentionally. To deal with such a situation, theLegislature has given powers to the Court under Section 351 to set rightmatters and bring to trial all persons who appeared to have a hand in thecommission of the offence. Therefore, the question of exercising its powersunder Section 351 of the Code is purely on the Court and in order to exercisethe powers, it is the Court which will have to objectively satisfy itself thatthe evidence or the circumstances in a case warrant a person not brought upfor trial also being detained and made to face the trial. It is in thatperspective the contention of the petitioners in the instant case has to beconsidered. No doubt, Srinivasan has admitted in several places in hisevidence that he had signed bogus tenders in the names of several persons.But on that score alone, it cannot be said that he must also be treated on thesame footing as the other accused in case. Srinivasan's evidence read as awhole makes it appear that he was not a co-conspirator with the other accusedbut on the other hand, he was only a tool in the hands of the firstpetitioner. As such, he cannot be said to have had any part in the commissionof offences under Sections 120-B, 420 and 471, Indian Penal Code. At leastthe charge that can be levelled against him is that he committed an offence offorgery punishable under Section 465, Indian Penal Code. But even for chargeof forgery it must be proved that the false document was made with aparticular animus, ie., to cause damage or injury to the public or to any

peson, or to support any claim or title, or to cause any person to part withproperty etc., etc., Unless, therefore, the evidence disclose that Srinivasanhad signed the several bogus tenders with dishonest and thereby had necessarymens rea, it is not possible to hold that he had committed even the offence offorgery. Whatever it be, it is for the Court to feel satisfied about thecircumstances of the case and conclude that the interests of justice requireaction being taken against a witness or any other person under Section 351,Criminal Procedure Code. Merely because the petitioners contend that theevidence given by Srinivasan stamps him unmistakably as a co-accused, theCourt is not bound to accede for their request and take action under Section351, Criminal Procedure Code.

5. There is also another aspect which has to be borne in mind.

The object of Section 351 is to see that all persons concerned in an offenceof which cognizance had been taken by the Judge or magistrate are effectivelydealt with and no one is allowed to escape the long arm of law merely becausethe prosecution had failed to array him as an accused. While doing so, theCourt must also see that in its anxiety to effectively administer justice, itdoes not indirectly contribute to the obliteration of evidence against themain offenders in the case. In the instant case, if Srinivasan is also to bearrayed as an accused, then it is quite likely that the prosecution may nothave any other evidence against the petitioners and the other two accused asregards the preparation of false tenders and the dishonest treatment of thosetenders as genuine by accused 1 and 2. In P.Sirajuddin Vs. The State ofMadras, AIR 1971 SC 520 (at p.529) = (1971 Crl LJ 523) it was observed by theSupreme Court as follows:

"In our view, if it be a fact that it was the appellant who was the head of the department actively responsible for directing the commission ofoffence by his subordinates in a particular manner, he cannot be allowed totake the plea that unless the subordinates were also joined as co-accused withhim the case should not be allowed to proceed."

Therefore, the Court while exercising its powers under Section 351, has a dutyto see that in its attempt to bring all offenders to justice, its action doesnot become a self-defeating one."

In the said case, the action of the Magistrate in refusing to transpose P.W.12Srinivasa on giving evidence incriminating himself that he prepared tenders inthe name of different concerns and he signed some of those tenders to make itappear that the tenders have been signed by the proprietors or managers ofthose respective concerns, as accused in that case was upheld by this court.

15. In the decision reported in A.R.Antulay Vs. R.S.Nayak (AIR1988 SC 1531), a Constitution Bench of the Supreme Court has held asfollows:(Para-120)

"120. Before going into these challenges, it is necessary to saysomething on the merits of the order under appeal itself. An accused personcannot assert any right to a joint trial with his co-accused. Normally it isthe right of the prosecution to decide whom it prosecutes. It can decline toarray a person as a co-accused and, instead examine him as a witness for theprosecution. What weight is to be attached to that evidence, as it may smackof the testimony of a guilty partner in crime, is a different matter.Prosecution can enter Nolle prosequi against any accused-person. It can seekto withdraw a charge against an accused person. These propositions are too well settled to require any further elaboration. Suffice it to say that thematter is concluded by the pronouncement of this Court in Laxmipat Choraria v.State of Maharashtra, (1969) 2 SCR 624 : (AIR 1968 SC 938) whereHidayatullah,J. referred to the argument that the accomplice, a certain EthylWong in that case, had also to be arrayed as an accused and repelled it,observing (at p.942-943 of AIR) :

" ... Mr.Jethmalani's argument that the Magistrate should have promptly put her in the dock because of her incriminating answers overlooksS.132 (proviso) ".

" .... The prosecution was not bound to prosecute her, if theythought that her evidence was necessary to break a smugglers' ring. EthylWong was prosecuted by S.132 (proviso) of the Indian Evidence Act even if shegave evidence incriminating herself. She was a competent witness although herevidence could only be received with the caution necessary in all accompliceevidence .... "

16. As far as this case is concerned, if the alleged selfincriminating evidence of P.W.10 who is sought to be arraigned as accusedis eschewed, there is no other evidence to connect him with the crime. Moreso, if his evidence is eschewed, there may not be any acceptable evidence asagainst the other accused who are facing trial. It is also pertinent to notethat if P.W.10 is joined alongwith the other accused to face trial, the wholecase may fall for lack of evidence. No-one should be allowed to escape thelong arm of law merely because the prosecution has failed to array one personas an accused. While doing so, the Court must also see that in its anxiety toeffectively administer justice, it does not indirectly contribute to theobliteration of evidence against the main offenders in the case. In theinstant case, if P.W.10 is also to be arrayed as an accused, then it is quitelikely that the prosecution may not have any other evidence against thepetitioners and the other accused as regards the perpetration of the crime.Therefore, the court while exercising its powers under Section-319 Cr.P.C.,has a duty to see that in its attempt to bring all offenders to justice, itsaction does not become a self-defeating one.

17. Normally a person who has a part in the crime is tendered pardon and treated as an approver by resorting to the provisions of Section302 and 308 of Cr.P.C., An approver is a man of worst character, who hasthrown to wolves his erstwhile friends and associates for the purpose ofsaving his own skin and he is a criminal who has purchased liberty bybetrayal. Whether P.W.10 was a partner of the crime or was only a tool in thehands of the other accused, has to be decided by the trial court after hiscross examination is over and the evidence of the other witnesses iscompleted. If the trial court feels that he has taken an active part in thecommission of the offence, then his evidence will stand the same footing asthat of an approver and as rightly held in the decision reported in L.ChordiaVs. State of Maharastra (AIR 1968 SC 938), the evidence of P.W.10 should bereceived with caution necessary in all accomplice evidence. To sum up, theincriminating evidence of P.W.10 is protected under the proviso to Section-132of the Indian Evidence Act, and if the trial court after completion of theevidence feels that he is also a co-conspirator or a partner of the crime, then his evidence should be viewed with usual caution as in the case of theevidence of an approver. Hence, the above revisions are liable to bedismissed. Accordingly both the revisions are dismissed.

Index:Yes.Internet:Yes.

To

1. Additional District & Sessions Judge,(Fast Tract Court-I), Chennai.2. Deputy Superintendent of PoliceCB CID, Metro Wing, ChennaiE5 Crime No.986 of 2001

3. The Public Prosecutor, High Court of Madras, Chennai-104.