Co-Accused Can't Be Examined As Prosecution Witness Unless Made An Approver By Grant Of Pardon: Kerala High Court

The Kerala High Court recently held that a person arraigned as an accused can only be examined as a witness against the other accused in a trial relating to the same offence when the witness has been made an approver after granting pardon under Sections 306 or 307 of the Code of Criminal Procedure.

A Division Bench of Justices Vinod Chandran and Ziyad Rahman observed that it is only under Section 315 that an accused could be examined as a witness for the defence in the trial and disprove the charges against him. In that situation, the protection under Article 20(3) does not apply; since the accused voluntarily mounts the box as a witness and there is no element of compulsion.

However, it was also noted that Section 315 CrPC does not apply in the instant case as the disputed witness is not on trial and has already been convicted.

Anticipating that allowing to examine the accused-convict as a witness might deprive him of the protection available to them because of a threat or enticement neither contemplated in the Cr. P.C nor envisaged in the scheme of criminal trials, the Court noted,

"Law has provided a measure to the prosecution to meet a contingency where the assistance of one or more of the accused is necessitated for ensuring a successful prosecution, and that is the procedure contemplated under section 306 and 307 of Cr.P.C. Accordingly, they are not expected to adopt any other method than contemplated therein for achieving the said object."

Factual Background

The petitioner is the second accused in a case before the National Investigation Agency. The said application challenges an annexure to the order passed by the Special Court, allowing to examine an additional witness named Shahjahan, who is a co-accused to the petitioner. The said additional witness had been previously tried and convicted for the offences arising out of the same transaction as the present petitioner, punishable under sections 38, 39, and 40 of Unlawful Activities (Prevention) Act, 1967 and under sections 120B and 125 of Indian Penal Code.

The specific case of the prosecution is that a criminal conspiracy was entered into by all the accused, including Shajahan; they associated themselves with an illegal terrorist organization ISIS/Daish, intending to further its activities by waging war against Syria, raised funds for furthering the activities thereof and attempted to travel to Syria following the call of ISIS//Daish to perform "Hijra" and for indulging in violent jihad.

The prosecuting agency filed an application to examine Shahjahan as an additional witness, which was allowed by the impugned order by the Special Court.

Advocate Vipin Narayan, appearing for the petitioner, argued that: (a) allowing a co-accused of the same offence to be examined as a witness would be against the basic tenants of criminal justice, i.e., an accused cannot be a witness against himself; (b) that the accused and the disputed witnesses are accomplices, and thus he cannot be allowed to testify unless he is made an approver under Section 306 of the Indian Penal Code; (c) allowing a co-accused to testify will cause serious prejudice to the defence.

He brought the attention of the Court to Section 315 of Cr. P.C contemplates the circumstances under which an accused person can be permitted to be examined as a witness. The provision only contemplates an accused person to be a competent witness for the defence to disprove the prosecution case, and that too on the request of such accused in writing.

Praying for the dismissal of the said order, the petitioner relied on Article 20 (3) of the Constitution of India, arguing that it encompasses within its larger ambit, protection from the evidence of an accused being used against the co-accused, unless as specifically enabled under the Cr.P.C.

Additional Solicitor General P.Vijayakumar raised three contentions:

(a) the application is not maintainable as it is an appealable order under Section 21 of the NIA Act;

(b) Section 315 prohibits an 'accused' from being examined as a defence witness as the Special Court has convicted him;

(c) Article 20 (3) encompasses protection from the evidence of an accused being used against the co-accused.

Findings Of The Court

On examining the facts and rival submissions, the Court noted that the entire proceedings against the petitioner here are akin to a 'split-up' trial based on the very same charge sheet. In such a situation, a co-accused cannot be examined as a witness, even if he was tried and convicted before the instant trial.

Maintainability

According to the petitioner, there is an appeal contemplated under section 21 of the National Investigation Agency Act, 2008, which was supposed to be filed within a period of 30 days.

The appeal contemplated in the said provision is against a judgment, sentence or order, not being an interlocutory order ie: an order which has an element of finality to it.

The Court noted that in this case, what is impugned is an order by which an additional witness was permitted to be examined.

The same is an interlocutory order and hence, there cannot be any appeal as contemplated under section 21 of the NIA Act.

"The specific ground on which the impugned order is challenged is serious and grave prejudice caused in examining a co-accused as witness, without he being granted pardon and without satisfying the conditions of Section 315 of Cr.P.C. We find that this petition under section 482 of Cr.P.C is maintainable."

Not Covered By Section 306 or 307 & Section 315 of Cr. P.C

Observing that the disputed witness has already been tried and convicted, the Court noted that as pardon can be granted only before the final judgment is passed against the person sought to be examined, the case is not covered under Section 306 or 307 of Cr. P.C

It was also noted that Section 315 cannot be invoked, as the additional witness is not being tried, and there is no question of his giving evidence in his defence.

Section 315 allows the accused to speak in his defence voluntarily, which exercise of the option available, has to be in writing, to be availed for the sole purpose of disproving the charges against him.

The only exception available here are under Sections 306 and 307 Cr. P.C, coupled with section 132 of the Evidence Act, offers the prosecution a chance to bring home the guilt on the more serious offenders or to nail more offenders at the expense of one being let back into society.

The Court remarked,

"The entire scheme results in an inference that an accused cannot be called to the witness box by the prosecution in support of the charges if he is also accused of charges arising from the very same set of facts and in the course of the same transaction and this prohibition applies to even an accused tried earlier and convicted by the same or a different court."

Prohibition To Be Examined As A Witness Applicable To 'Accused' and 'Convict' Equally:

Negating the argument of the ASG, differentiating between an accused and a convict, the Court noted that merely because of the reason that allegations against the accused were found to be correct by the competent Court after trial, he would not cease to be an accused.

"Of course, finding of guilt would make him a convict, but we are of the view that the expression convict would include an accused as well. To be precise, a 'convict' can only be a person who was 'accused' and though an accused is not always a convict, a convict is always an accused who stood trial, in which his guilt was established."

Therefore, the Court noted that the prohibition applicable to an 'accused' for his examination as a witness would apply to a 'convict' with all its vigor as applicable to an accused before he is convicted.

Principles of Criminal Jurisprudence & Oaths Act, 1969

The Court warned that granting permission to examine the disputed witness may result in an opportunity to the prosecuting agency to misuse the same by manipulating one of the accused by compelling him to plead guilty or get the criminal proceedings split up to convict him and then either coerce or entice him with something short of a pardon to cite him as a witness against the other accused persons.

Noting that the disputed witness is lodged in a State facility, the Court also considered exertion of pressure or offering of inducement to aid the prosecution. The Court noted that this would run foul to the tenets of criminal jurisprudence as envisaged through Article 20(3) and Section 315 of Cr.P.C.

The Court observed that though a convict's evidence as a witness would not incriminate him further, it will permit the prosecution to do indirectly what is prohibited from doing directly.

Section 118 of the Indian Evidence Act says that all persons are competent to testify unless they are prevented from understanding the questions put to them for the reasons stated therein. However, the Court noted that provided under Section 118 is a general provision that has to concede to the special provision and the constitutional guarantee enshrined under Article 20(3) of the Constitution of India.

A reiteration of the mandate enshrined in Article 20(3) of the Constitution of India and Section 315 of Cr. The Courts found P.C under Section 7 of the Oaths Act, 1969. The said provision contemplates that omission to take oath as prescribed therein would not invalidate the evidence, nor would it affect the obligation of the witness to depose the truth. The Court, however, noted that it clearly postulates a restriction against the administration of oath to an accused in a criminal proceeding except as a defence witness.

Case Title: Abdul Razak v. Union of India