Summary
The Supreme Court held that the proviso to Section 132 of the Evidence Act gives a witness only a qualified privilege: his own incriminating answers cannot be used to prosecute him, but he is not immune from being summoned under Section 319 CrPC on other evidence that emerges at trial. Because the bank cashier was summoned on a prosecution witness's testimony and not on his own pre-summoning statement, his summoning was upheld.
Issues
- Whether a person who gave a self-incriminating statement as the complainant's witness at the pre-summoning stage is protected by the proviso to Section 132 of the Evidence Act from being summoned as an additional accused under Section 319 CrPC.
- Whether the proviso to Section 132 grants complete immunity from prosecution even where other incriminating material against the witness exists.
- Whether there was prima facie material to summon the appellant under Section 319 CrPC.
Provisions considered
- Section 132 and proviso, Indian Evidence Act, 1872The proviso is a qualified privilege: a witness compelled to answer cannot be arrested, prosecuted or have the answer proved against him on the strength of that answer, except for giving false evidence. It is an extension of Article 20(3) but does not give blanket immunity where other material shows the witness's prima facie involvement. (¶¶ 10, 12, 13, 14, 20, 25)
- Section 319, Code of Criminal Procedure, 1973A court may proceed against a person who appears from the evidence at trial to have committed the offence. A witness may be summoned this way if there is additional cogent material apart from his own statement; the test is whether the order would stand with the witness's statement removed from consideration. (¶¶ 19, 22, 23, 24, 27)
- Article 20(3), Constitution of IndiaThe proviso to Section 132 was described as a corollary of the protection against self-incrimination in Article 20(3), extending statutory immunity to a witness who incriminates himself. (¶ 14)
Held
- The proviso to Section 132 of the Evidence Act replaced the absolute privilege against self-incrimination with a qualified one. A witness must answer, but the answer cannot be used against him except in a prosecution for false evidence. Its object is to bring all evidence before the court. (¶¶ 12, 13, 14, 15)
- The qualified privilege under the proviso does not give a person who deposed as a witness, and incriminated himself, complete immunity from prosecution. His own statement cannot be used for any purpose to bring him to trial, but he can be prosecuted on other material. Reading the proviso as blanket immunity would let complicit persons be shielded by being cited as witnesses. (¶¶ 18, 20, 25)
- There is no absolute bar on a trial court proceeding under Section 319 CrPC against a person who has deposed as a witness. The order must rest on evidence that came up during the trial and on additional cogent material apart from the witness's own statement. A mere reference to that statement does not vitiate the order; the test is whether the court could have proceeded on the other material with the statement excluded. (¶¶ 22, 23)
- R. Dinesh Kumar alias Deena v. State, which the Court agreed with, held that no prosecution can be launched on a witness's answer falling within Section 132. It did not examine whether a witness can be proceeded against on independent evidence, and so did not help the appellant. (¶¶ 16, 17, 26)
- The appellant was summoned on the trial testimony of PW-1 that the interpolations in the fixed deposit records were made under the appellant's initials and signatures, not on his own pre-summoning statement of 2016; otherwise he would have been summoned soon after that statement. This was prima facie material for exercising the power under Section 319. (¶¶ 24, 27)
Result
Criminal appeal dismissed, and the summoning of the appellant as an additional accused under Section 319 CrPC was upheld. The connected contempt petition was closed and the interim order in it vacated.