Balasaheb @ Ramesh
Laxman Deshmukh Vs State of Maharashtra & ANR.
JUDGMENT
CHANDRAMAULI KR.
PRASAD, J.
1.
The
short but important question of law which falls for our determination in the
present appeal is as to whether protection under Article 20(3) of the
Constitution is available to the appellant, who though not an accused in the
police casein which he has been asked to depose as a witness but figures as an
accused in the complaint case filed later on in relation to the same incident.
2.
Bereft
of unnecessary details, the facts necessary for determination of the aforesaid
question are that informant Charudatta Pawar is alleged to have been assaulted
by four persons in a Hotel in the night between 25th and 26th of April,1996 and
on the basis of the report given by him CRNo.102/1996 was registered at
Chalisgaon Police Station. During the investigation the appellant figured as a
witness and his statement was recorded under Section 161 of the Code of Criminal
Procedure. After investigation Chalisgaon Police Station submitted charge sheet
against 4 accused persons named in the first information report on 24.5.1997.
The said case, hereinafter referred to as the police case, is pending fo rtrial
before Judicial Magistrate, First Class, Chalisgaon. In regard to the same
incident which is the subject matter of the trial in the aforesaid Police case,
a complaint was filed impleading the appellant herein besides five other persons
as accused. Appellant figures as accused No.6 in the complaint case and
according to the allegation he conspired with other accused in commission of a
crime. In this case, here in after referred to as the complaint case the
Judicial Magistrate took cognizance of the offence and issued process by order
dated2nd February, 1998 against the four accused who were already charge sheeted
in the police case and three other accused including the appellant herein. By
an order of the Bombay High Court dated 26th April, 1999 both the criminal
cases i.e. police case and complaint case were directed to be tried and decided
simultaneously. The Bombay High Court further directed the Magistrate in se sin
of the trial to conclude the trial within stipulated time.
3.
The
appellant filed an application before the learned Magistrate in se sin of the
Police case objecting his examination as witness, inter alia, contending that
in view of the Constitutional protection guaranteed under Article 20(3) of the Constitution
of India, he cannot be compelled to be a witness in the case as he himself is
an accused in relation to the same incident in the complaint case. The learned
Magistrate by its order dated 5th September, 2000 allowed the application and observed
that the prosecution cannot examine the appellant as a witness in the Police
case. The State of Maharashtra aggrieved by the aforesaid order filed Criminal
Revision Application No.268 of 2000 before the Bombay High Court which by its
order dated 27th April, 2001 allowed the application and set aside the order of
the learned Magistrate, inter alia, observing that no such blanket protection
can be given to the appellant. Relevant portion of the judgment of the High
Court reads as follows: "To sum up, witness Balasaheb @ Ramesh Laxman
Deshmukh is not an accused in CC NO. 97/96 in spite of accusations against him
in the deposition of complainant Charudatta (Esh.142) and admission of
complainant dated 26.4.1996 (Exh.143) which are pieces of evidence relevant in C.C.No.3/98,
since he is not charged by the charge framed in that case. Therefore, even if
he is compelled to depose as a witness in C.C. No. 97/96 that can not be said
to be compulsion to give evidence against himself. Moreover, by virtue of proviso
to Section 132 of Indian Evidence Act, he is protected from use of self
incriminating statements against him, in any other proceeding including C.C. No.3/98.
The blanket protection granted by Magistrate vide his order dated 5.9.2000 can
do, therefore, be sustained."
4.
Mr.
M.Y. Deshmukh, learned Counsel appearing on behalf of the appellant contends
that the appellant being an accused in the complaint case cannot be compelled
to give evidence against himself in the Police case. It is pointed out that
Article 20(3) of the Constitution contemplates that no person, accused of any
offence, shall be compelled to be a witness against himself. It is emphasized
that the appellant is not an accused in the Police case but in relation to the
same incident in the complaint case he figures as an accused and, therefore, he
is entitled to the protection under Article 20(3) of the Constitution. In
support of the submission reliance has been placed on a decision of this Court
in the case of Ramanal Bhogilal Shah & Another vs. D.K. Guha &Others,
(1973) 1 SCC 696, and our attention has been drawn to paragraph 22 of the
judgment which reads as follows: "22. The Additional Solicitor-General
says that the petitioner had not been specifically named as accused in the
first information report and, therefore, he is not entitled to the protection
under Article 20(3). We are unable to agree with him in this respect. The
petitioner was the General Manager of the United Commercial Bank and it was alleged
in the grounds of arrest that the petitioner was in charge of, or was
responsible to the United Commercial Bank Ltd. for the conduct of the business
of the said Bank, and that he failed to prove in course of his statements made
under Section 19-F before Shri D.K. Guha, Deputy 6 Director of Enforcement that
the contravention took place without his knowledge or that he exercised all due
diligence to prevent the aforesaid contravention, as required under Section
23-C of the Exchange Act."
5.
At
the first blush we were inclined to accept this submission but on a deeper
scrutiny we find no substance in it and the decision relied on instead of
supporting his case, goes against him. Protection under Article 20(3) of the Constitution
does not extend to any kind of evidence but only to self-incriminating
statements relating to the charges brought against an accused. In order to
bring the testimony of an accused within the prohibition of constitutional
protection, it must be of such character that by itself it tend to incriminate
the accused. Appellant is not an accused in the Police case and in fact a
witness, whose statement was recorded under Article 161 of the Criminal
Procedure Code, and, therefore, not entitled to a blanket protection. However, in
case of trial in the Police case answer to certain question if tends to
incriminate the appellant he can seek protection at that stage. Whether answer
to a question is incriminating or otherwise has to be considered at the time it
is put. Reference in this connection can be made to a decision of this Court in
the case of State of Bombay vs. Kathi Kalu Oghad, AIR1961 SC 1808, wherein it
has been held as follows: "In order that a testimony by an accused person
may be said to have been self-incriminatory the compulsion of which comes
within the prohibition of the constitutional provision, it must be of such a
character that by itself it should have the tendency of incriminating the
accused, if not also of actually doing so. In other words, it should be a
statement which makes the case against the accused person at least probable,
considered by itself."
6.
We
are of the opinion that for invoking the constitutional right under Article
20(3) a formal accusation against the person claiming the protection must
exist. Simply because the appellant figures as the accused in the complaint
case, a blanket protection as claimed by him cannot be granted. Reference in
this connection can be made to a decision of this Court in the case of Raja
Narayanlal Bansilal v. Maneck Phiroz Mistry and Another, AIR 1961 SC 29,
wherein it has been held as follows:
"The effect of
this decision thus appears to be that one of the essential conditions for
invoking the constitutional guarantee enshrined in Article 20(3) 8 is that a
formal accusation relating to the commission of an offence, which would
normally lead to his prosecution, must have been levelled against the party who
is being compelled to give evidence against himself; and this conclusion, in our
opinion, is fully consistent with the two other decisions of this Court to
which we have already referred.
7.
Referring
to the decision of this Court in the case of Ramanlal Bhogilal Shah (supra),
relied on by the appellant, the same in spite of supporting his case goes
against him which would be evident from the following paragraph of the said
judgment: "24. Although we hold that the petitioner is a person accused of
an offence within the meaning of Article 20(3), the only protection that
Article 20(3) gives to him is that he cannot be compelled to be a witness
against himself. But this does not mean that he need not give information
regarding matters which do not tend to incriminate him.
8.
Mr.
Deshmukh, then contends that the protection under Article 20(3) goes beyond the
complaint case but shall cover the Police case also because appellant is an
accused in relation to the same incident and the trial is pending in the said
case. Reliance has been placed on a decision of this Court in the case of
Nandini Satpathy vs. P.L. Dani & Another, (1 78) 2 SCC 424, and our
attention has been drawn to paragraph 57 of the judgment which reads as
follows:
"57. We hold
that Section 161 enables the police to examine the accused during
investigation. The prohibitive sweep of Article 20(3) goes back to the stage of
police interrogation -- not, as contended, commencing in court only. In our
judgment, the provisions of Article 20(3) and Section 161(1) substantially
cover the same area, so far as police investigations are concerned. The ban on
self- accusation and the right to silence, while one investigation or trial is
under way, goes beyond that case and protects the accused in regard to other offences
pending or imminent, which may deter him from voluntary disclosure of
criminatory matter. We are disposed to read "compelled testimony" as evidence
procured not merely by physical threats or violence but by psychic torture,
atmospheric pressure, environmental coercion, tiring interrogative prolixity,
overbearing and intimidator methods and the like -- not legal penalty for violation.
So, the legal perils following upon refusal to answer, or answer truthfully,
cannot be regarded as compulsion within the meaning of Article 20(3). The
prospect of prosecution may lead to legal tension in the exercise of a
constitutional right, but then, a stance of silence is running a calculated risk.
On the other hand, if there is any mode of pressure, subtle or crude, mental or
physical, direct or indirect, but sufficiently substantial, applied by the
policeman for obtaining information from an accused strongly suggestive of
guilt, it becomes "compelled testimony", violative of Article
20(3)." We do not find any substance in this submission of the learned
Counsel and the decision relied on is clearly distinguishable.
1.
2.
3.
4.
5.
6.
7.
8.
9.
As
observed earlier the appellant is not an accused in the Police case and in fact
a witness whose statement was recorded during the course of investigation under
Section 161of the Code of Criminal Procedure. In the Police case he utmost can
be asked to support the case of the prosecution but no question in tented to
incriminate him can be asked and in case it is done the protection under
Article 20(3) of the Constitution shall spring into action. What question shall
be put to this appellant when he appears as a witness is a matter of guess and
on that basis he does not deserve the blanket protection under Article 20(3) of
the Constitution? Even at the cost of the repetition we may observe that in the
Police case when he appears and asked to answer question, the answer where of
tends to incriminate him, he can refuse to answer the same pleading protection under
Article 20(3) of the Constitution. In such eventuality the Court would decide
the same. Therefore, at this stage the blanket protection sought by the
appellant is not fit to be granted.
10.
As
regards the authority of this Court in the case of Nandini Satpathy (supra) the
same has no bearing in the facts and circumstances of this case. There the
question was as to whether the protection under Article 20(3) of the Constitution
shall apply at the stage of Police interrogation and in answer thereto this
Court held that it shall go back to the stage of Police interrogation and not
in Court only.11. As the trial is pending since long, the learned Magistrate in
se sin of the trial shall make endeavour to dispose of the same expeditiously,
preferably within a period of six months from the date of receipt of a copy of
this order.12. In the result, we do not find any merit in the appeal and it is
dismissed accordingly with the observation aforesaid.
................................................J
[HARJIT SINGH BEDI]
................................................J
[CHANDRAMAULI KR. PRASAD]
NEW
DELHI
DECEMBER
7, 2010.
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