Witness cannot be added as an accused even if his statements are inculpatory : Supreme Court [Read the Judgment]

In a landmark judgment, a two judge bench of the Supreme Court comprising of Justice J Chelameshwar and Justice C Nagappan has held that a prosecution witness cannot be prosecuted u/s 319 CrPC even though his statements were self incriminatory. The bench speaking through Justice Chelameshwar held that Sec 132 of the Evidence Act drafts a statutory infirmity for the same in consonance with Article 20(3) of the Constitution.

The brief facts of the case can be uncurtained as that the deceased was murdered and 7 accused are being tried by the Sessions Court at Chennai. 71 witnesses have been examined and all have been cross examined except PW64. 3 months before the act of murder, PW 64 was approached by Accused No. 2 (A2) to kill the deceased in exchange of Rs 5 lakhs for which 50,000 was paid as advance. PW64 contacted Accused No. 3 (A3) for the same and paid him 10,000. However, after this PW 64 being afraid did not do anything till he read in newspapers about the abovesaid murder. He then contacted A3 who confessed doing it and asked him to keep his shut. Accused No. 5 (A5), after Examination in Chief of PW64 filed a petition u/s 319 CrPC seeking to summon him as an additional accused to be tried together with other accused. This petition was dismissed and the revision petition was subsequently dismissed in the impugned judgment by the High Court holding that PW64 cannot be prosecuted by summoning him as an additional accused, however he can be separately prosecuted u/s 120B r.w. 302 IPC.

The Supreme Court dealt with following questions -

1. Whether on the facts mentioned, the Sessions Court is obliged to summon PW64 as an additional accused exercising power u/s 319? [Para 8]
2. When Could a person appearing to have committed an offence 'be tried together with the accused' already facing trial? [Para 9]
3. If it is legally possible to try PW64 for such an offence, whether he could be tried along with other accused? [Para 16]
4. Whether the offence said to have been committed by PW64 and the offence for which appellant and other accused are being tried were 'committed in the course of same transaction'? [Para 17]
5. Whether requirements of Sec 319 are satisfied warranting summoning of PW64? [para 27]
6. Whether the deposition of PW64 can be treated as evidence within the ambit of Sec 319 CrPC?[para 29]
7. Whether PW64 could have been examined as a witness without securing pardon u/s 306 CrPC?[para 49]

It was held that the expression recorded by the High Court allowing separate prosecution u/s 120B was totally uncalled for. Sec 223 CrPC provides for joint trial of different accused in certain circumstances. There were 3 conspiracies i.e. A2 & PW64, between PW64 & A3 and between A2 and other accused. The High Court was found wrong [para 19] in declaring that PW64 could not be tried along with other accused as the 3 conspiracies did not form part of the same transaction. Justice Chelameshwar relied on Ganeshwar Rao case to assert that where several persons are alleged to have committed several separate offences which however are not wholly unconnected, then there may be a joint trial unless such joint trial is likely to cause either embarrassment or difficulty to the accused in defending themselves.[para 22] It cannot be said that these offences are so wholly unconnected that they cannot be tried together. [Para 25] However, Sec 132 of the Evidence Act drafts a statutory bar on such trial. Placing reliance on Gopal Doss's case, it held that Sec 132 & Art 20(3) go hand in hand & no prosecution can be launched against maker of such statement and the High Court was right in refusing to summon PW64. [para 29,32,47,48] The High Court also recorded that examination of PW64 without securing pardon u/s 306 CrPC is illegal was also considered and pardon was granted by the Supreme Court.

Read the Judgment here.