An Admittedly Guilty Person Can't Escape Punishment Merely Because He Is Made A Witness: Karnataka High Court

Justice M Nagaprasanna held thus while allowing the petition filed by one S Muthaiah an accused in a 2011 illegal transportation of iron ore case, challenging a trial court order rejecting his application under Section 319 (Power to proceed against other persons appearing to be guilty of offence) CrPC seeking to make 23 forest officials who are named as prosecution witness, as accused in the case.

Referring to various judgments on the subject, the court said “Therefore, it is rudimentary that an accused cannot be a witness on behalf of the prosecution, and a person who is admittedly guilty cannot run away from punishment, merely because he has been arrayed as a witness. He cannot be in a position of prosecution witness if he is particeps criminis, except in accordance with law.”

The trial court vide its order dated 06-01-2025 had rejected the application on the ground that there was no reason to bring them as accused, as the Court has not treated them as hostile.

The high court said that the trial court rejected the petitioner's plea without even initiating process under Section 319 CrPC. It noted that  crime pertained to handing over of blank permits with their signature. The order notes that the forest officials have given their statements under Section 164 of the Cr.P.C, before the concerned Court, admitting that they had signed blank permits and those permits had been utilized by accused Nos. 1 to 5 for illegal transportation of iron ore. Even a departmental enquiry is initiated and charge sheets are issued against all the witnesses afore-quoted.

Then it said “The witness who is in a position of accomplice can always be dragged to the position of an accused, only by following due process of law.” Noting that these authorities were placed before the concerned court, however, "The concerned Court has rejected the application without even initiating the process under Section 319 of the Cr.P.C, and hearing those accused on the issue of such transposition.”

The petitioner argued that witnesses who are named and numbered in the application are all persons who had to be accomplices of the accused. They ought not to be shown as witnesses and examined against the petitioner. They are equal to the accused. They have admitted in the cross-examination that they have themselves signed on blank permits and given to the accused. Therefore, they are also guilty of the offence. Thus, the Court ought to have followed the procedure under Section 319 of the Cr.P.C, to bring in those witnesses as accused.

The CBI opposed the plea submitting that an accused cannot plead that some other person should be brought in as an accused. If at all there is evidence and if it is found necessary, the prosecution itself will file an application. That necessity has not yet arisen.

Findings:

The bench said that the trial court has "misdirected itself in considering that those witnesses have not sought pardon".

"If they have not sought pardon, they cannot be examined as accused. An accused can seek pardon and become an approver and depose against the other accused. It is ununderstandable as to how prosecution witnesses can seek pardon and depose against the other accused,” the court added.

It further said that in the present case these persons are "witnesses who are participants in the crime".

"Participants in the crime to some extent, as they have admitted signing blank documents. If they admit signing blank documents, then they become accomplices, along with other accused who could be charged with some of the offences,” the court added. 

Allowing the petition in part the court said “The application should have merited consideration and the procedure stipulated in law qua Section 319 of the Cr.P.C. ought to have been followed.” It directed the trial court to now answer the application under Section 319 of the Cr.P.C. in accordance with law.

Appearance: Senior Advocate Hashmath Pasha for Advocate Kariappa N A for Petitioner.

SPP P.Prasanna Kumar for Respondent.

Citation No: 2025 LiveLaw (Kar) 56

Case Title: S.MUTHAIAH AND State By CBI

Case No: CRIMINAL PETITION No.577 OF 2025

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