Report No. 69
VIII. Proviso-The Meaning of "Compulsion".
70.41. Recommendation as to spouse-Meaning of "Compelled"- Three views.-
The meaning of the word "compelled" as used in the proviso to section 132 also requires to be clarified. Judicial decisions on the subject disclose a controversy. Does the word "compelled" contemplate that the witness must have been forced to answer the question put by the court and must have made his unwillingness known to the court? Or, is the requirement indicated by that word satisfied even if the witness does not object to the question? On this point, there seems to be a conflict of decisions. Three views have been expressed on the above point, which may, for the sake of convenience, be described as the narrow view, the wide view, and the intermediate view.
70.42. Narrow view.-
The narrow view is taken in a Bombay Case. It was decided in Emperor v. Gunna, (1920) 22 Born LR 1271 approved in Bai Shanta v. Umrao, 1925 ILR 50 Born 162 (173) (FB), that unless a person objects to any question the answer to which is likely to incriminate him, he cannot be said to have been "compelled" to give such answer within the meaning of the proviso. Mr. Justice Hayward observed: "If a man voluntarily makes an incriminating statement, he must take the consequences for it. He can also plead protection if he has specifically declined to make the statement, and has been specifically compelled to do so by the Court". This was approved by a Full Bench in Bai Shanta's case.1
1. Bai Shanta v. Umrao, 1925 ILR 50 Born 162 (FB).
70.43. This view bases itself upon the fact that the words "which he is compelled to give" must be given some meaning: these words contemplate two situation.- (i) where the witness raises no objection, (ii) where he raises an objection. In the first case, he can be taken as having acted voluntarily, and is not "compelled". It is only in the second situation that he is "compelled" and can therefore claim the immunity provided in the proviso.
70.44. In an earlier Bombay case,1 there was a difference of opinion between two judges (on the one hand) and one judge on the other hand. The majority (Bayley Ag. C.J. and Persons J.) took the view that protection is afforded only to an answer to which the witness has objected. Birdwood J. held that the compulsion is operative whether or not the witness asks to be excused. This controversy, so far as Bombay is concerned, is now settled by Bai Shanta's case2 taking the narrow view as stated above.
1. Queen Empress v. Ganu, 1887 ILR 12 Born 440.
2. Bai Shanta v. Umrao, 1925 ILR 50 Born 162 (FB).
70.45. Wide view.-
This is one view of the matter. According to what may be called the wide view, there is compulsion, at least where the witness makes an objection expressly. Compulsion is implicit in the legislative scheme, according to this view. This view was strongly put by Muttuswami Aiyar J. in his dissenting judgment in the earliest Madras case1 on the subject. In that case, there was a difference of opinion between the majority (3 judges) and the minority (2 judges). While the majority took a narrow view, the minority (Kernan and Muttuswami Aiyar, JJ.), took a wide view. According to that view, a witness giving evidence on oath when summoned by the court is, in every case, protected, since the compulsion arises by law. This was also, in substance, the view of Walsh J. in Emperor v. Ganga Sahai, 1920 ILR 42 All 257: 18 ALJ 112, (an Allahabad case). He observed:
"that a witness in a civil suit cannot be prosecuted for defamation in respect of an answer made by him to a question asked by the Court". For this conclusion, he relied, inter alia, on section 132, proviso. He expressed disagreement with two judgments of his own Court, and held that the word "compelled" refers to the obligation under the law2 to answer questions. In that case the question was asked by the Court, but the judgment does not rest on that consideration."
1. Queen Empress v. Gopal Das, (1878-1881) ILR 3 Mad 271.
2. Emphasis supplied.
70.46. Intermediate view.-
One of the Madras judgments1 in a later case can be said to take the intermediate view. These are the pertinent observations:
"Whether the witness seeks the protection of the Court in a set form of words, or not2 if the witness is made to understand directly or indirectly that he had no option in the matter but to answer all the questions put to him, I conceive he would bring himself within the proviso to section 132. I am not prepared to hold that the proviso would only apply to witness who ask in so many words the protection of the Court under section 132. The words of the proviso should be understood in the ordinary sense and the word "compelled" means forcing or insisting upon a witness to answer the question.
The witness may not know that he should apply for protection; but any reasonable man ought to know that any statement defamatory of another would expose him to a charge of defamation. If he hesitates to answer and the court tells him he must answer the questions. I would hold that hesitation and the direction of the court to the witness to answer would bring the witness within the proviso". This view recognises that a claim to protection may be implied.
1. Peddappa v. Varada, AIR 1929 Mad 236 (239) (Devadoss, J.).
2. Emphasis supplied.
70.47. Allahabad Case.-
The intermediate view is also represented by an Allahabad case1. It was held that it would be too narrow an interpretation to say that the word "compelled" must involve the necessity of a formal objection to giving the answer. Whether there was or was not compulsion, depended on the facts of each case.
1. King Emperor v. Banarsi, AIR 1924 All 381 (Walan & Ryves, JJ.).
70.48. The Calcutta1 view is that section 132, proviso, does not, apply unless pressure is put upon a witness after he is in the box and when he asks to be excused from answering a question. In that case, with reference to the view expressed by Muthuswami Aiyar, J. in his dissenting judgment, in the Madras case2, it was stated that it is not correct to say that the Judge has nothing to say in the matter, or that it is a mere formality for the witness to seek protection. It was observed-"the Judge has to decide whether the question is relevant to the matter in issue and upon that determination partly depends the obligation to answer".
With great respect, this explanation does not satisfactorily or completely answer the principal query, namely, if the question is held to be relevant to the matter in issue, has the court a discretion to disallow the question on the ground that it would incriminate the witness? If so, what is the statutory provision constituting the authority for that discretion?
1. Moher Sheikh v. Queen Empress, 1894 ILR 21 Cal 392 (Trevelyan and Rampini, JJ.).
2. Queen Empress v. Gopal Das, 1878-81 ILR 3 Mad 271, (supra).
70.49. According to the later Madras view1, a witness who answers a question put to him by counsel without claiming the protection of this section is not entitled to any protection. With respect, however, one may point out that the section, as it stands, if construed literally, confers no "protection" in the main paragraph, and does not contemplate the seeking of a protection by the witness. In fact, the main paragraph denies a protection to the witness, because it begins with the negative provision-
"No witness shall be excused........"
1. Perdappa Reddy v. Varada Reddy, AIR 1929 Mad 236.
70.50. The narrow view stresses the relative clause beginning with the word "which" in the proviso. To this, answer has been given:1
"As to the relative clause in the proviso, it is neither superfluous nor inconsistent with the construction which I place upon the section. It is not superfluous, because the indemnify does not extend to voluntary affidavits. Nor is it material that the word "compel" refers to a compulsion by the Judge, since the Judge may be said to compel as much by issuing a process and placing a person in the position of a witnes.- in which he is compulsorily sworn and placed under the necessity of criminating himself-as by saying to a witness "you claim to be excused, but the law directs me not to excuse you".
"Further, section 148, which confers upon a witness the privilege of not answering a criminative question that is material only in so far as it injures his character, and thereby affect his credit, expressly gives power to the judge to warn the witness that he need not criminate himself until it is decided that the question must be answered. If it were intended by section 132 that the witness must decline to answer if he wishes to claim the indemnity, would not a power to warn the witness to that effect be expressly given?"
1. Cf. Queen v. Gopal Dass, 1876-81 ILR 3 Mad 279 (285) (FS), (Muttuswarni Aiyar, J.-dissenting judgment),
70.51. Need to remove conflict between main paragraph and proviso.-
It seems to us that this controversy must continue so long as the present wording of the section is not changed. There seems to be fundamental lacuna or want of logic in the section. This lacuna becomes apparent when one reads the main paragraph of the section in contrast with the proviso. In the main paragraph, the section enacts the rule that a witness shall not be excused from answering incriminating question.- we are concerned only with questions pertaining to matters relevant to the matters in issue. This negative provision implies that there is no immunity and a witness is bound to answer the question in every case.
The proviso, however, says that no such answer which a witness "shall be compelled to give" shall subject him to arrest or prosecution etc. The proviso creates the impression that there is a discretio.- vide the relative pronoun "which". But if there is no immunity, compulsion must follow,-unless the law gives a discretion to the court to allow or not to disallow the question. Hence, the relative expression "which" creates difficulty. The use of the word "which" suggests that there is a distinction between case and case, and that two alternative situations are contemplate.- one in which compulsion exists and another in which compulsion does not exist.
70.52. No provision for discretion.-
Unfortunately, however, the section does not contain any provision in express terms indicating that such a choice or discretion exists in the court. In this connection, reference may be made to the fact that in those sections of the Act where a discretion in the court is contemplated, there is an express provisio.- for example, sections 146(3), 147 and 148, which deal with the exercise of discretion in regard to questions intended to impeach the credit of a witness. If the provisions of section 132 had in express terms conferred such a discretion, then one can understand those judicial decisions which hold that the words "shall be compelled" in section 132 apply only where the court puts pressure on the witness and the witness in response makes a request for being excused for answering the question1.
Such is not the case and in the absence of an express provision conferring discretion, one cannot be over-critical of the view that the ordinary layman, unacquainted with the technical terms of the section, may reasonably be regarded as a person compelled to answer all questions that are put by counsel or by the court.2 The difficulty arising from the present scheme of the section was emphatically described by Muttuswami Aiyar, J. in his dissenting judgment in the Madras case3 where he observed:-
"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".
1. Moher Seikh v. Q.E. 1893 Mad 392 (400).
2. Emperor v. Banarasi, AIR 1924 All 381
3. Queen Empress v. Gopal Doss, 1878-1881 ILR 3 Mad 271 (284).
70.53. Need for change.-
Having taken into consideration all aspects of the matter, we are of the view that in the case of a witness compulsion1must be taken as arising by law, since a court has no power to excuse a witness. This is the only reasonable construction of the main paragraph. It is necessary that the proviso should be brought into line with this proposition enacted in the main paragraph.
1. Para 70.45, supra.
In the light of the above discussion, we recommend that section 132 should be revised as below:-
"132. (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 will expose, or tend directly or indirectly to expose, the accused or the spouse to a penalty or forfeiture of any kind.
(3) Where by virtue of the obligation imposed by sub-section (1) or sub-section (2), a witness or the accused is bound to answer a question, no answer which the witness or the accused gives to that question shall subject the witness, the accused or the spouse of the witness or the accused, as the case may be, to arrest or prosecution, or be proved against the witness or the accused or the spouse, as the case may be, in any criminal proceeding, except a prosecution for giving false evidence by such answer."