Report No. 185
Section 132
The Section refers to the subject 'Witness not excused from answering on ground that answer will criminate'. It reads as follows:
"132. A witness shall not be excused from answering any question as to any matter relevant to the matter in issue in any suit or in any civil or criminal proceeding, upon the ground that the answer to such question will criminate, or may tend directly or indirectly to criminate, such witness, or that it will expose, or tend directly or indirectly to expose, such witness to a penalty or forfeiture of any kind:
Provided that no such answer, which a witness shall be compelled to give, shall subject him to any arrest or prosecution, or 381 be proved against him in any criminal proceeding, except a prosecution for giving false evidence by such answer."
The principle here is that the right against self-incrimination is available only to a person who is 'accused of' an 'offence' and not to a witness except that when he is an accused, his answer which incriminated him cannot be used against him either for arrest, prosecution or in any criminal proceeding. The sole exception is a criminal proceeding for punishing him for 'perjury'.
The provisions of Article 20(3) of the Constitution of India against selfincrimination do not apply unless the person is one accused of an offence in the criminal case. An accused person has the right to silence and the burden of proving guilt beyond reasonable doubt is on the prosecution. But, when a person is examined in a case where he is not accused of an offence, he does not have the protection. 'Offence' is defined in Section 3(38) of the General Clause Act, as an act punishable under the Indian Penal Code or any special or local law.
The 69th Report was submitted in 1977 and by that date there were three judgments of the Supreme Court, two in 1968 and one in 1971. After 1971, there are two, one in 1980 and another in 1989. These decisions concern various aspects of Section 132 and also interpret Article 20(3) of the Constitution of India. As we shall show, these judgments have a bearing on the recommendations made in the 69th Report because of the Supreme Court's interpretation of Article 20(3) and Section 132.
Now Article 20(3) is a protection against self-incrimination of a person 'accused' of an 'offence' and the protection in the proviso to Section 132 is and has been held to be on the same lines. The word 'compelled' is used in the proviso to Section 132 (but not in the main part). Questions have arisen in High Courts, as discussed in the 69th Report, as to whether a person who volunteers a statement gets the protection of the proviso to Section 132 or whether a person who refuses to answer but is compelled by the court, should alone get the protection or whether every person duly summoned under statutory powers should be treated as 'compelled' to give evidence. Before we deal with the High Court judgments, we shall first refer to the Supreme Court judgments because the interpretation of the word 'compelled' is something common to Article 20(3) and Section 132.
In Laxmipat Choraria v. State of Maharashtra, AIR 1968 SC 938, the appellants were convicted under Section 120B of the Penal code and Section 167 of the Sea Customs Act. The case involved smuggling of gold into India. In that case, PWI an employee of Air India was an accomplice but not an accused. She was examined and her statements were recorded under Section 171A of the Sea Customs Act in which she spoke against the accused but also spoke about her own role in sharing part of the gold. The Supreme Court held that under Section 118 of the Evidence Act, she was a competent witness.
Under Section 132 she was bound to answer even if the questions incriminated her but the Section gave protection if she later became an accused. Hidayatullah J (as he then was) observed that "In India, the privilege of refusing to answer has been removed so that temptation to tell a lie may be avoided but it was necessary to give this protection (i.e. under proviso to Section 132). The protection is further fortified by Article 20(3) which 383 says that no person accused of any offence shall be compelled to be a witness against himself. This Article protects a person who is accused of an offence and not those questioned as witnesses." He then clarified:
"A person who voluntarily answers questions from the witness box waives the privilege which is against being compelled to be a witness against himself because he is then not a witness against himself but against others. Section 132 of the Indian Evidence Act sufficiently protects him since his testimony does not go against himself. In this respect the witness is in no worse position than the accused who volunteers to give evidence on his own behalf or on behalf of a coaccused. There too the accused waives the privilege conferred on him by the Article since he is subjected to cross-examination and may be asked questions incriminating him. The evidence of Elthyl Wong (PWI) cannot, therefore be ruled out as that of an incompetent witness. her evidence is accomplice evidence."
"Elthyl Wong (PWI) was protected by Section 132 (proviso) of the Indian Evidence Act even if she gave evidence incriminating herself. She was a competent witness. The same expression is used in the proviso to Section 132 of the Indian Evidence Act and there it means a criminal trial and not investigation."
We shall then move to Tukaram G. Gaokar v. R.N. Shukla, AIR 1968 SC 1050. Here the appellant had sought a writ of prohibition against penalty being imposed on him pursuant to a notice under Section 112 of the Customs Act as also for confiscation pursuant to a notice under Section 111 of the said 384 Act. The notices issued under Section 111 and Section 112 were questioned as violating Article 20(3) of the Constitution. A regular criminal case was also pending against him in regard to gold smuggling under Section 120B of IPC and Section 135 of Sea Customs Act. In para 6 of the judgment, it was accepted that the appellant was an 'accused person'.
It was however observed: "But, it is not possible at this stage to say that he is compelled to be a witness against himself. There is no compulsion on him to enter the witness box. He may, if he chooses, not appear as a witness in the proceedings under ss. 111 and 112. The necessity to enter the witness box for substantiating his defence is not such a compulsion as would attract the protection of Article 20(3). Even in a criminal trial, any person accused of an offence is a competent witness for the defence under Section 342A of the Criminal Procedure Code (1898) and may give evidence on oath in disproof of the charges made against him.
It may be very necessary for the accused person to enter the witness box for substantiating his defence. But this is no reason for saying that the criminal trial compels him to be a witness against himself and is in violation of Article 20(3). Compulsion in the conduct of Article 20(3) must proceed from another person or authority. The appellant is not compelled to be a witness if he voluntarily gives evidence in his defence." (Section 342A of the old Code corresponds to Section 315(1) of the 1973 Code). The Supreme Court then added:
"Different considerations may arise if he is summoned by the Customs authorities under Section 108 to give evidence in the proceedings under ss. 111 and 112. But he has not yet been summoned to give evidence in those proceedings. We express no 385 opinion on the question, whether in the event of his being summoned he can claim the protection under Article 20(3) and whether in the event of his being then compelled to give incriminating answers he can invoke the protection of the proviso to Section 132 of the Indian Evidence Act against the case of those answers in the criminal proceedings.
It may be noted that counsel for the Customs authorities gave an undertaking in the High Court that they would not use in any criminal proceedings the statement, if any, that might be made by the appellant during the course of the adjudication proceedings."
This judgment makes it clear that though a person is an accused in a criminal case but before the trial therein, in a separate proceeding under the Customs Act, if he has to show cause to notices for penalty or confiscation, it cannot be said that he is asked to be a 'witness' against himself. This is not a proceeding asking him to come before the authority to give 'evidence'. Hence, Article 20(3) does not apply.
Even where an accused is on trial, if he volunteers to give evidence, he loses the protection against selfincrimination under present Section 315(1) of the Code of 1973. The question whether if he is summoned to give evidence in the penalty proceedings or confiscation proceedings, when he comes as a witness, he will have protection of Article 20(3) or of the proviso to Section 132 was not decided in the above case.
We shall now refer to the case in Hira H. Advani v. State of Maharashtra, AIR 1971 SC 44. In that case, appellants were prosecuted under Section 167 of the Sea Customs Act and Section 5 of the Import and Exports (Control) Act, 1947. They were, therefore, accused persons. The admissibility of earlier statements under Section 171A by the accused before the Customs authorities fell for consideration. In para 30, reference was made to Section 171A and the power of customs officers to summon any person, reference was made to subSection (3) thereof which requires all persons so summoned to 'state the truth'.
It was argued that the proceedings before the Customs authorities were 'judicial proceedings' to which Section 132 applied. Reliance was placed on Section 171A(4) which stated that the inquiry shall be deemed to be a judicial proceeding within the meaning of ss. 193 and 228 of the Indian Penal Code. This plea was rejected holding that proceeding before the Customs authorities were not judicial for purposes of Section 132 of the Evidence Act. Even though the statements under Section 171A(4) were made under oath, the provision of the Oaths Act did not make those proceedings judicial proceedings.
It was also observed (see para 36, p. 54) that Section 171A(3) does not compel a person to make a statement but that, if he makes a statement, he must speak the truth. "He is not a witness giving evidence in a court". In para 38, the Supreme Court considered the plea that though Section 132 was not applicable, the principle behind it applied to Customs authorities. There is no question of applying the principle unless the case was within the four corners of Section 132.
The above judgment makes it clear that Section 132 main part which refers to the principle that a witness may be compelled to incriminate, is applicable in proceedings to which Evidence Act applies and not to processes before the Customs authorities. Such prior statements before Customs authorities containing incriminating material are admissible in a subsequent criminal prosecution.
In Raghbir Singh Gill v. Gurcharan Singh Tohra, AIR 1980 SC 1362, the special exception in Section 94 of the Representation of People's Act (1951) which precludes any witness from being required to state for whom he voted at an election was held to be an exception to the main part of Section 132 of the Evidence Act. After referring to Article 20(3) and Section 132, it was held that but for Section 44, a witness would have been liable to disclose to whom he voted because Section 95 of the Act and Section 132 of the Evidence Act would have led to that result.
In State (Delhi Administration) v. Jagjit Singh, AIR 1989 SC 598, an accused became an approver and was pardoned under Section 306(4) of the Code of Criminal Procedure, 1973. The approver would have to be examined in the Committal Court as well as at the trial. But, once he became an approver, he would cease to be an accused. Once he ceased to be an accused, he would lose the protection against self-incrimination. He can be questioned under Section 132. Though, he may make a statement which could incriminate him, still Section 132 proviso would protect him against prosecution. The court relied upon Laxmipat Choraria v. State of Maharashtra, AIR 1968 SC 938.
Summarising the position, the following principles can be gathered:
(1) In a criminal trial where a person is accused of an offence (offence as defined in the General Clause Act refer to offences under the Penal Code or Special Acts) under Article 20(3), the accused cannot be put questions which will incriminate him. He cannot be compelled to answer such questions. This is a prohibition against being questioned.
(2) In a criminal trial, it is open to the accused to waive the privilege by volunteering to give evidence under Section 315 and in that event, he will lose the protection under Article 20(3).
(3) A person who is accused in a criminal case, if he opts to become an approver, he ceases to be an accused. If he is not in the position of an accused, he is in the position like any other witness who is not an accused and does not have the protection of Article 20(3).
(4) All witnesses (who are not accused) can under Section 132 of Evidence Act be put questions which incriminate them but such answers cannot be used, in view of the proviso to Section 132, to arrest the witness or to prosecute him or to impose a penalty or forfeiture.
(5) An accomplice who is not an accused can be asked incriminating questions and such statements can be used against other accused. But so far as the accomplice is concerned , such statements cannot be used, in view of proviso to section 132, to arrest him or her or prosecute him or her or levy any penalty of forfeiture. L. Choraria v. State of Maharashtra was a case of an accomplice who volunteered to give evidence and it was held that she still had the protection under the proviso to section 132. This case was followed in the case of an approver, who volunteered to give evidence i.e., State v. Jagjit Singh, 1989 SC 598. These tow decisions show that protection under proviso to section 132 is available even if a witness volunteered to give evidence and was put incriminating questions.
Having summarized the law on the basis of the rulings of the Supreme Court, we shall now refer to the problem discussed in the 69th Report as to whether the protection of the proviso to Section 132 is available only to a witness who objects to an incriminating question and answer to it or to others who answer an incriminating question because of the statutory directive in the main part of Section 132?
The controversy has arisen because the main part of Section 132 which requires every witness to answer questions which incriminate him does not use the word 'compelled' while the protection in the proviso against arrest, prosecution etc. is given only to those witnesses who are 'compelled' to answer incriminating questions.
The case-law here goes back to 1878 when Queen Empress v. Gopal Das: (1878) ILR 3 Mad 271. (FB) where the majority took the narrow view that the protection in the proviso applies only to such witnesses who raised objection and then answered (i.e. compelled) while Muthuswami Aiyer J gave a wider interpretation to the word 'compelled' as including any witness who felt he has to comply with the mandate in the main clause of Section 132, and who did not object to the question.
The 69th Report elaborately considered the views of various High Courts and felt that the directive in the main clause that every witness was bound to answer incriminating question must be deemed to be the compulsion in law and no other factual compulsion need be proved and, in our view, rightly accepted the view of Muthuswami Aiyer J who stated as follows:
"It seems to me incongruous that the Legislature should have directed the judge never to excuse a witness from answering a criminative question relevant to the matter in issue, and at the same time commanded the witness to ask the judge to excuse him from answering such a question."
The 69th Report observed in para 70.53 that, in the case of witness 'compulsion', it must be taken to have arisen by force of law (i.e. the statutory directive in the main part of Section 132, where a court has no power to excuse a witness). This in our view is the only reasonable construction.
We may add that if the main part of Section 132 is indeed mandatory and the court has no power to excuse a witness from answering an incriminating question, an objection by witness is absolutely futile and if that be so, the distinction between a witness who objected and another who had not objected but felt bound by the main part of Section 132 loses significance. For this additional reason also, we agree with the 69th Report that the main part of Section 132 must be treated as a statutory compulsion.
We also agree with the 69th Report that the duty to answer applies to questions incriminating the witness or his spouse but the protection must extend to the witness as well as his spouse.
Another important aspect concerns an accused who volunteers to give evidence on oath under Section 315 CrPC. He waives the protection so far as the particular charge is concerned. But, if he is compelled to answer any incriminating questions not related to the charge, then such evidence cannot 391 be used against him in any criminal proceedings relating to other charges, except a prosecution for giving false evidence by such answer.
The proposal in the 69th Report is as follows. The main part of Section 132 is redesignated as subSection (1) and extends to the spouse also. SubSection (2) as proposed relating to the compellability of an accused who volunteers under Section 315 CrPC. There is no difficulty about subSection (2). In subSection (3) as proposed, the words "obligation imposed by subSections (1) and (2)" are used to refer to the directive in the main part of Section 132 and covering a witness and an accused who volunteers under Section 315 CrPC.
This is intended to show that main part of Section 132 (proposed Section 132(1)) contains a statutory compulsion. Another aspect is that in subSection (3), it is said that the evidence can be used in 'any criminal proceeding' i.e. the words in the proviso are repeated. But now the new subSection (3) wIllustration apply not only to a witness but also to an accused who has volunteered under Section 315 CrPC. In the case of the witness, the word 'criminal proceeding' refers to a latter proceeding.
But, in the case of the accused who has volunteered under Section 315 CrPC, the language of proposed subSection (3) is likely to give an impression that the incriminating evidence cannot be used even in so far as it related to the charge in the case in which he waived his privilege under Section 315. Surely, that is not the idea.
In the light of this, we are of the view that Section 132 as proposed in the 69th Report be further revised as follows:
"132. Witness or accused not excused from answering on ground that answer will criminate.- (1) A witness shall not be excused from answering any question as to any matter relevant to the matter in issue in any suit or in any civil or criminal proceeding, upon the ground that the answer to such question will criminate, or may tend directly or indirectly to criminate, such witness or the spouse of the witness or that it will expose, or tend directly or indirectly to expose, such witness or spouse to a penalty or forfeiture of any kind.
(2) An accused person who offers himself as a witness under Section 315 of the Code of Criminal Procedure, 1973, shall not be excused from answering any question as to any matter relevant to the matter in issue in the prosecution, on the ground that the answer to such question will criminate or may tend directly or indirectly to criminate the accused or the spouse of the accused; or that it wIllustration expose, or tend directly or indirectly to expose, the accused or the spouse to a penalty or forfeiture of any kind.
(3) Where any witness or accused is bound or feels bound to answer a question, under the provisions of this Section whether he has objected to it or not, no such answer which-
(a) the witness gives to that question shall subject the witness or the spouse of the witness, as the case may be, to arrest or prosecution or be proved against them
(b) the accused gives to that question shall, save as otherwise provided in sub-Section (2), subject the accused or the spouse of the accused , as the case may be, to arrest or prosecution or be proved against them in any criminal proceeding,
Provided that nothing contained in this sub-Section shall apply to any answer which may amount to giving of false evidence."
Provided that nothing contained in this sub-Section shall apply to any answer which may amount to giving of false evidence."
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