Witness who made self-incriminating statements can be summoned as additional defendant based on other documents: Supreme Court

The Supreme Court held that a witness who gives an incriminating statement cannot invoke immunity from prosecution under Section 132 of the Evidence Act (“IEA”) if there is other substantial evidence or material against him which clearly establishes his involvement in the crime.

The court found: “We consider that the qualified privilege provided for in section 132 of the Act does not provide complete immunity from prosecution to a person who has given evidence as a witness (and made statements incriminating himself).”

Section 132 of the Evidence Act states that a witness cannot be excused from giving evidence merely because the answer might be incriminating. The proviso is:

“Provided that such an answer which a witness is compelled to give shall not result in arrest or prosecution, or be capable of being proved against him in any criminal proceeding, except in a prosecution for making a false statement by making such an answer.”

The Court stated that while the proviso to section 132 of the IEA grants immunity from prosecution to the person, there is no blanket immunity from prosecution if there is substantial evidence against the person.

“The proviso to Section 132 provides statutory immunity from self-incrimination and states that such an answer which a witness is compelled to give shall not expose him to arrest or prosecution or be proved against him in any criminal proceeding except in a prosecution for making false statement by such an answer. So the only protection available is that a witness cannot be prosecuted on the basis of his own testimony. It is nowhere laid down that a person enjoys complete and unqualified immunity even if there is other substantial evidence or material against him which prima facie proves his involvement.”the bank consisting of Justices Prashant Kumar Mishra and Prasanna B Varale observed.

In essence, the court stated that if there is cogent material against the witness apart from his statements, there is no bar to summoning the witness under Section 319 CrPC for prosecution.

Arguments

The case arose out of a criminal complaint filed for alleged tampering with fixed deposit notes. When the complaint was filed, the complainant was examined as a witness for the defendant bank, where he admitted to changing the tenure of the fixed deposit from 3 years to 10 years and later to 15 years. This statement was made at the summons stage.

During the trial, a prosecution witness made a statement that it was the accused who had made the interpolation in the fixed deposit document. Following this statement, the bank filed an application under Section 319 Cr.PC to include the accused as an additional accused.

The Court of First Instance allowed the application and the High Court dismissed the appellant's objections thereto. The matter therefore went to the Supreme Court.

The appellant argued that on the basis of the statements made before summons, he could not be summoned under Section 319 Cr.PC. Therefore, he claimed protection under Section 132 of the Evidence Act. Reference was made to the case of. R. Dinesh Kumar alias Deena v. The State, represented by the Inspector of Police and another (2015).

In R. Dinesh Kumar In this case, it was held that no prosecution can be initiated against the author of a statement falling within the ambit of Section 132 of the Act on the basis of the ‘answer’ given by a person in the course of giving evidence in court.

The prosecution contested the accused's contention and argued that the summons served on the accused could not be challenged because the summons was not served on the accused on the basis of his statements prior to the summons but on the basis of the testimony of the prosecution witness. He argued that as per the prosecution's provision of section 132 of the IEA, there was no legal bar to prosecuting the accused on the basis of the other evidence available on the record.

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Is it prohibited for a court trying an offence to initiate proceedings under Section 319 of the Criminal Procedure Code against a witness in the said proceedings on the basis of other materials on record?

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The Court rejected the appellant's contention and found that the summons had been properly served on the appellant and that no error had been committed in requiring the appellant to appear as another defendant at the hearing.

Although the court agreed with the judgment of R. Dinesh Kumar, It was said that the present case raised a different question – namely, whether the accused was still protected by the provision of Section 132 of the Act even if there was other evidence against him justifying his being summoned as an accused.

The court ruled that the provision of Section 132 could be misused if it was interpreted to constitute a blanket prohibition on summoning a person as an additional accused.

“In other words, if the privilege granted to a witness under Section 132 of the Act is interpreted as complete immunity, regardless of the availability of other evidence, it can be abused.”the court explained.

The Court described a scenario in which the provision could be abused, e.g. “If an investigating officer, through a well-intentioned error, interviews a man who was involved in a crime and appears as a witness in the case, the court, after considering the other evidence, might conclude that the witness was involved in the crime. The question would then be whether the court would be completely precluded from charging that witness with the crime on the basis of that other evidence.”

In interpreting the clause in Section 132 of the IEA, the Court stated: “The only protection available is that a witness cannot be prosecuted on the basis of his own testimony. Nowhere is it provided that a person enjoys complete and unconditional immunity even if there is other strong evidence or materials against him which prima facie prove his involvement.”

“If this complete immunity is read with the proviso to Section 132 of the Act, an influential person with the help of a dishonest investigating officer can obtain legal protection for the latter by examining him as a witness even though his complicity in the offence is clearly established on the basis of the material available in the case.”the court added.

No absolute ban on summoning witnesses who have made self-incriminating statements as defendants

The Court further stated:

“There cannot be an absolute embargo on the court from initiating proceedings under Section 319 Cr.PC merely because a person appearing as an accomplice has given evidence as a witness. The decision to apply Section 319 Cr.PC must be based on the evidence which has emerged during the trial. The court must have before it other cogent material besides the testimony of the witness.”

The question to be considered is whether the court could have proceeded on the basis of other incriminating material under Section 319 Cr.PC even if the statement of the witness had been ignored.

“An order for initiating proceedings under Section 319 Cr.PC against a witness who has testified in the trial and produced evidence incriminating himself would be scrutinised to see whether that incriminating statement alone formed the basis of the order under Section 319 Cr.PC. At the same time, a mere reference to that statement would not invalidate the order. The question would be whether the court, even if the testimony of the witness is not taken into account, could have proceeded on the basis of other incriminating materials under Section 319 Cr.PC.”

On the facts of the instant case, the Court found that the appellant was served with summons under Section 319 of the Prosecution Act not only on the basis of his statement before the summons but also on the basis of the statement of another prosecution witness. Thus, there is a prima facie case of exercise of power under Section 319 of the Prosecution Act.

Accordingly, the appeal was dismissed and the contested orders were confirmed.

Look:

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

For the 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. Ms. June Chowdhary, Sr. Adv. Mr. Sarvam Ritam Khare, AOR Mr. Akash Shukla, Adv.

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

Quote: 2024 LiveLaw (SC) 686

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