Witness Who Made Self-Incriminating Statements Can Be Summoned As Additional Accused Based On Other Materials: Supreme Court

The Supreme Court held that a witness who gives an incriminating statement cannot take a shield under proviso of Section 132 of the Evidence Act (“IEA”) to claim immunity from prosecution if there exists other substantial evidence or material against him proving his prima facie involvement in the crime.

The Court stated : "We hold that the qualified privilege under the proviso to Section 132 of the Act does not grant complete immunity from prosecution to a person who has deposed as a witness (and made statements incriminating himself)"

Section 132 of the Evidence Act states that witness is not excused from answering on the ground that the answer will incriminate. Its proviso states :

"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.”

The Court said though the proviso of Section 132 of IEA grants immunity to the person from prosecution, there shall not be a blanket immunity from the prosecution if there exists substantial material against the person.

“The proviso to Section 132 offers statutory immunity against self-incrimination providing 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 proceedings except a prosecution for giving false evidence by such answer. Thus, the only protection available is, a witness cannot be subjected to prosecution on the basis of his own statement. It nowhere provides that there is complete and unfettered immunity to a person even if there is other substantial evidence or material against him proving his prima facie involvement.”, the bench comprising Justices Prashant Kumar Mishra and Prasanna B Varale observed.

In essence, the Court said that if there exists cogent material against the witness apart from his statements, then there's no impediment to summon the witness under Section 319 CrPC for prosecution.

Arguments

The case arose out of a criminal complaint filed regarding the alleged interlopations made in fixed deposit receipts. When the complaint was filed, the appellant was examined as a witness of the respondent-bank wherein he admitted having changed the tenure of the Fixed Deposit from 3 years to 10 years and later on to 15 years. This statement was given at the pre-summoning stage.

During trial, a prosecution witness made a the statement that it was the appellant who made the interpolation in the Fixed Deposit document. After this statement, the bank submitted application under Section 319 Cr.P.C. for arraying the appellant as additional accused.

The trial court allowed the application and the High Court dismissed the appellant's challenge to it. Thus, the matter reached the Supreme Court.

It was contended by the appellant that he cannot be summoned under Section 319 Cr.P.C. based on the pre-summoning statements. Therefore, he claimed protection under proviso to Section 132 of the Evidence Act. Reference was made to the case of R. Dinesh Kumar alias Deena v. State represented by Inspector of Police and another (2015).

In R. Dinesh Kumar's case it was held that no prosecution can be launched against the maker of a statement falling within the sweep of Section 132 of the Act on the basis of the “answer” given by a person while deposing as a “witness” before a Court.

Opposing the accused contention, it was argued by the prosecution that the summon served to the accused cannot be disputed as the summon was not served to the accused based on his pre-summoning statements but on the testimony of the prosecution witness. He argued that there's no legal bar under the proviso to Section 132 IEA to prosecute the accused based on the other evidence available on record.

Issue

Whether a Court while trying an offence, is barred from initiating a process under Section 319 of the Cr. P.C, against a witness in the said proceeding on the basis of other material on record?

Observation

Rejecting the appellant's contention, the court observed that the summon was rightly served to the appellant and no error was committed while requiring the appearance of the appellant as an additional accused in the trial.

Although the court concurred with the judgment of R. Dinesh Kumar, it said that the present case raised a different question -whether the accused would still be protected under the proviso of Section 132 of the Act when there is other material against him for summoning as an accused.

The Court reasoned that if the proviso to Section 132 is interpreted in such a fashion that it puts a blanket embargo to call upon a person as an additional accused then it would be capable of abuse.

“In other words, if the privilege made available to a witness under the proviso to Section 132 of the Act is interpreted as a complete immunity, notwithstanding availability of other evidence, it is capable of abuse.”, the court said.

The Court described a scenario where the provision could be misused i.e., For instance “an investigating officer, under an honest mistake examines a man complicit of an offence as a witness in the case, the Court upon examining the other evidence, could conclude that the witness was complicit in the offence, the question then would be whether there would be complete bar on the Court to prosecute such witness for  the offence on the basis of such other material.”

Upon interpreting the proviso of Section 132 of IEA, the Court said that “the only protection available is, a witness cannot be subjected to prosecution on the basis of his own statement. It nowhere provides that there is complete and unfettered immunity to a person even if there is other substantial evidence or material against him proving his prima facie involvement.”

“If this complete immunity is read under the proviso to Section 132 of the Act, an influential person with the help of a dishonest Investigating Officer will provide a legal shield to him by examining him as a witness even though his complicity in the offence is writ large on the basis of the material available in the case.”, the Court added.

No absolute embargo to summon witness who made self-incriminating statements as an accused

The Court further held :

"There cannot be an absolute embargo on the Trial Court to initiate process under Section 319 Cr.P.C., merely because a person, who though appears to be complicit has deposed as a witness. The finding to invoke Section 319 Cr.P.C., must be based on the evidence that has come up during the course of Trial. There must be additional, cogent material before the Trial Court apart from the statement of the witness."

The test would be as to whether, even if the witness's statement is removed from consideration, the Court could have proceeded under Section 319 Cr.P.C on the basis of other incriminating material.

"An order for initiation of process under Section 319 Cr.P.C against a witness, who has deposed in the trial and has tendered evidence incriminating himself, would be tested on the anvil that whether only such incriminating statement has formed the basis of the order under Section 319 Cr.P.C. At the same time, mere reference to such statement would not vitiate the order. The test would be as to whether, even if the statement of witness is removed from consideration, whether on the basis of other incriminating material, the Court could have proceeded under Section 319 Cr.P.C."

On the facts of the present case, the Court found that since the appellant was served summons under Section 319 of CrPC not only on the basis of his pre-summoning statement but on the basis of the statement of another Prosecution Witness. Thus there exists a prima facie material for the exercise of power under Section 319 Cr.P.C.

Accordingly, the appeal was dismissed and the impugned orders were upheld.

Appearance:

For Petitioner(s) Mr. Vivek K Tankha, Sr. Adv. Ms. Kajal Sharma, AOR Mr. Rajiv Bakshi, Adv. Mr. Vipul Tiwari, Adv.

For Respondent(s) Mr. Saurabh Mishra, Sr. Adv. Mr. Abhinav Shrivastava, AOR Mr. Shivang Rawat, Adv. Ms. Amrita Kumari, Adv. Mr. Anoop George Chowdhary, Sr. Adv. Mrs. June Chowdhary, Sr. Adv. Mr. Sarvam Ritam Khare, AOR Mr. Akash Shukla, Adv.

Case Title: RAGHUVEER SHARAN VERSUS DISTRICT SAHAKARI KRISHI GRAMIN VIKAS BANK & ANR., CRIMINAL APPEAL NO(s). 2764 OF 2024

Citation : 2024 LiveLaw (SC) 686

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