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Wednesday, March 18, 2015

whether the prosecution has a liberty to examine any person as a witness in a criminal prosecution notwithstanding that there is some material available to the prosecuting agency to indicate that such a person is also involved in the commission of the crime for which the other accused are being tried requires a deeper examination. 56. Unfortunately before us, except asserting the proposition no clear submissions are made in this regard. In the circumstances, we do not propose to examine the proposition in the present case. However, in view of the fact Section 307 Cr.P.C. authorizes even a Court conducting trial to tender pardon to such a person, we believe that the ends of justice in this case would be met by directing the trial Court to grant pardon in favour of PW64 after following the appropriate procedure of law and record his evidence afresh. 57. We order accordingly. The appeal stands disposed of.

                                                                  Reportable


                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                      CRIMINAL APPEAL NO.  454 OF 2015
               (Arising out of SLP (Criminal) No.9928 of 2014)

R. Dineshkumar @ Deena                       ...Appellant

Versus

State
Rep. by Inspector of Police & Others               ...Respondents






                               J U D G M E N T


Chelameswar,  J.

1.    Leave granted.

2.    One Vijayan @ Vijayakumar was killed on 4th June 2008 in the  city  of
Chennai.  It appears from  the  judgment  under  appeal  that  the  incident
occurred in the following manner:
"At the time of occurrence, the deceased was proceeding  in  his  car.   The
assailants came in a white Ambassador car,  intentionally  dashed  the  said
car against the car driven by the deceased.  As a result, the car driven  by
the deceased came to a halt.  Some  people  suddenly  emerged  and  brutally
attacked  Vijayan  @  Vijayakumar  and  he   succumbed   to   the   injuries
instantaneously."

3.    A case in Crime No.618 of 2008 came to be registered with  respect  to
the said incident at Abiramapuram Police Station, Chennai.  A  final  report
came to be filed against seven accused persons of whom the appellant  herein
is one (A-5).  All the seven accused  are  facing  trial  in  Sessions  Case
No.73 of 2009 on the file of the Principal Sessions  Judge,  Chennai.   From
the judgment[1] under appeal, it appears:
"The trial Court has framed charges under Sections 147,  148,  302  &  120-B
IPC.  As many as 71 witnesses  were  cited  in  the  final  report.   During
trial,  already  65  witnesses  have  been  examined  on  the  side  of  the
prosecution and all such witnesses have been cross examined by  the  counsel
appearing for the respective accused, except PW64.   PW64  is  one  Shri  L.
Venkatesh, the 2nd respondent in this revision petition.   After  the  chief
examination of PW64 (the 2nd respondent herein)  was  over,  the  petitioner
herein filed a petition in Crl.M.P. No.4188 of 2014  under  Section  319  of
Cr.P.C. seeking to summon the 2nd respondent/PW64 as an  additional  accused
so as to be tried together with the rest of the  accused,  who  are  already
facing trial.  That petition was dismissed  by  the  trial  court  by  order
dated 10.03.2014.  Challenging the same, the petitioner/A5  is  before  this
court with this criminal revision petition."


4.    The factual background in which application under Section 319  of  the
Code of Criminal Procedure (for short "Cr.P.C.") came to  be  filed  by  the
appellant herein is as follows:

Some three months after the death of Vijayan the 2nd  respondent  herein  L.
Venkatesh (who was  examined  as  PW64  and  for  the  sake  of  convenience
hereinafter referred to as "PW64") was examined by the Police on  11.09.2008
and his statement under Section 161 Cr.P.C. was recorded.  Subsequently,  on
26.09.2008, his statement was recorded under  Section  164  Cr.P.C.  by  the
learned Metropolitan Magistrate, George Town, Chennai.  Finally, the  second
respondent was examined as PW64 in the trial  of  the  abovementioned  case.
The tenor of all the  three  statements  of  PW64  is  said  to  be  broadly
consistent.  (We say so because we have not scrutinized the  statements  nor
we wish to scrutinize the same and record any conclusion  as  the  trial  of
the criminal case is still pending and it would be inappropriate  to  record
any definite finding at this stage of any matter  connected  with  the  said
case.)  The translated copies of  all  the  three  statements  of  PW64  are
placed on record.  The substance of  the  statements  is  that  sometime  in
November 2007, one Karuna, the second accused had offered  to  pay  PW64  an
amount of Rs.5 lakhs if PW64 killed Vijayan.  PW64  accepted  the  proposal.
Karuna made an initial payment of Rs.50,000/- to PW64 on his  accepting  the
proposal.  Thereafter, PW64 contacted the third accused  and  disclosed  the
proposal whereupon the  third  accused  agreed  to  join  PW64.   The  third
accused was paid an amount of Rs.10,000/- by PW64.   However,  subsequently,
PW64 developed cold feet and started maintaining a distance from the  second
accused Karuna. But according to PW64, the  second  accused  and  the  third
accused were in contact with each other.  After coming  to  know  about  the
murder of Vijayan through newspapers, PW64 contacted the third  accused  and
enquired about the matter upon which the third accused  informed  PW64  that
the third accused along with three other named persons had murdered  Vijayan
and collected an amount of Rs. 4 lakhs from the second accused.   The  third
accused further threatened PW64 that he would be "finished" if  he  revealed
the information to anybody.

5.    By the impugned  judgment,  the  High  Court  dismissed  the  criminal
revision.  The operative portion of the judgment reads as follows:
"63.  In view of all the above discussions, I hold that the evidence of  the
2nd respondent, as a prosecution witness before the  trial  court,  and  the
incriminating answers given by him amount  to  compelled  testimony  falling
within the sweep of Section  132  of  the  Evidence  Act  and  thus,  he  is
protected by the proviso to Section 132 of the Evidence Act.  In  such  view
of the matter, solely on the basis of his evidence as PW64 before the  trial
court, he cannot be prosecuted either by  summoning  him  as  an  additional
accused in the present case or in a separate trial.

64.   At the same time, for the offence of  conspiracy  allegedly  committed
by A2 and A3 and the 2nd respondent herein, there can be a  prosecution  for
offence under Section 120(B) r/w 302 of IPC.  But, such prosecution  against
the 2nd respondent cannot be based on his statement made under  Section  164
of Cr.P.C. in this case and his evidence as PW64 before the trial  court  in
the present sessions case. If there are  other  materials  collected  during
investigation by which the said conspiracy  could  be  proved  against  him,
there can be no legal impediment to  prosecute  the  2nd  respondent  herein
along with A2 and A3  for  the  said  offence  of  conspiracy  by  filing  a
separate police report. After such prosecution, the prosecution will  be  at
liberty to approach the court to tender pardon to the 2nd  respondent  under
Section 306 of Cr.P.C. and then to examine him as a prosecution  witness  in
order to prove the said conspiracy, if need be."


6.    In substance the High Court held that PW64  cannot  be  prosecuted  by
summoning him  as  an  additional  accused  under  Section  319  Cr.P.C.  in
Sessions Case No. 73 of 2009 on the  basis  of  his  evidence  in  the  said
Sessions Case as the proviso to Section 132  of  the  Indian  Evidence  Act,
1872 (hereinafter referred to as "the  Evidence  Act")  creates  an  embargo
upon such a course of action.  However, the High Court held that PW64  could
be separately prosecuted for an offence under Section  120B  of  the  Indian
Penal Code, 1860 (hereinafter referred to as "IPC") read  with  Section  302
IPC if independent evidence other  than  the  statement  under  Section  164
Cr.P.C. of PW64 and  his  evidence  in  Sessions  Case  No.73  of  2009  are
available to prosecute him along with A2 and A3.

7.    In our opinion, the second  conclusion  recorded  by  the  High  Court
contained in para 64 extracted above is really uncalled for in  the  context
of the issue before the High Court.  The question before the High Court  was
whether the Sessions Court was justified in  declining  to  summon  PW64  in
exercise of its authority under Section 319 of the Cr.P.C. as an  additional
accused in Sessions Case No.73 of 2009.  We, therefore,  will  examine  only
the question whether on the facts mentioned earlier the  Sessions  Court  is
obliged to summon PW64 as an additional accused exercising the  power  under
Section 319 of the Cr.P.C.

8.    Section 319 of the Cr.P.C. insofar as it is relevant for  the  purpose
of the present case reads as follows:
"Section 319. Power to proceed against other persons appearing to be  guilty
of offence.-(1) Where, in the course of any inquiry into, or  trial  of,  an
offence, it appears from the evidence that any person not being the  accused
has committed any offence for which such  person  could  be  tried  together
with the accused, the Court may proceed against such person for the  offence
which he appears to have committed."

The Section authorizes the Court making any inquiry into or  conducting  the
trial of an offence to "proceed" against any person (other than the  accused
facing trial) subject to two conditions (i)  that  from  the  "evidence"  it
appears to the Court that such a person "has  committed  any  offence",  and
(2) that such a person "could be tried together with the accused."

9.    We shall first consider  the  question  as  to  when  could  a  person
appearing to have committed an offence "be tried together with the  accused"
already facing trial?
10.   Section 223[2]  of  the  Cr.P.C.  provides  for  the  joint  trial  of
different  accused  in  certain  circumstances.   It  enumerates   different
contingencies in which different persons may be charged and tried  together.
As rightly noticed by the High Court, the only clause  if  at  all  relevant
for the purpose of the present case is Section 223(d) which stipulates  that
persons accused of different offences committed in the course  of  the  same
transaction could be charged and tried together.

11.   It is admitted on all hands that except the evidence of PW64  and  his
statement under Section 164 Cr.P.C. there is no other evidence on record  of
the Sessions Court to indicate that PW64 has committed  any  offence.   Both
the evidence and the statement under  Section  164  Cr.P.C.  of  PW64  prima
facie indicate a conspiracy to kill Vijayan to which conspiracy PW64  was  a
party at least at the initial stage.  According to PW64, he  developed  cold
feet after the initial stage and withdrew from the conspiracy  and  did  not
participate in the actual killing of Vijayan.   Whether  his  assertions  in
this regard are true and, if true, would legally absolve him  of  guilt  are
questions with which we are not concerned for the purpose of this case.   We
only take note of the evidence on record as it exists to  indicate  that  as
of today there is no evidence to prosecute PW64 for any offence  other  than
the one punishable under Section 120B of IPC.

12.   It is the settled legal position that an offence of  conspiracy[3]  is
complete the moment two or more persons agree  to  do  an  illegal  act,  or
agree to do an act which is not illegal in itself but by  illegal  means  or
in the alternative if two or more persons agree  to  cause  to  be  done  an
illegal act or an act which is not illegal through illegal means.

13.   In Major E.G. Barsay v. State of Bombay, AIR 1961 SC 1762, this  Court
held thus:
"The gist of the offence is an agreement to break the law.  The  parties  to
such an agreement  will  be  guilty  of  criminal  conspiracy,  through  the
illegal act agreed to be done has not been done."

14.   In State (NCT of Delhi) v. Navjot Sandhu alias Afsan Guru,  (2005)  11
SCC  600,  this  Court  after  analyzing  the  history  of  the  offence  of
conspiracy held as follows:
88. Earlier to the introduction of Sections 120-A and 120-B, conspiracy  per
se was not an offence under the Penal Code except in respect of the  offence
mentioned in Section 121-A. However, abetment by conspiracy  was  and  still
remains to be an ingredient of abetment under  clause  secondly  of  Section
107 IPC. The punishment therefor is provided  under  various  sections  viz.
Sections 108 to 117.  Whereas  under  Section  120-A,  the  essence  of  the
offence of criminal conspiracy is a bare agreement to  commit  the  offence,
the abetment under Section 107  requires  the  commission  of  some  act  or
illegal omission  pursuant  to  the  conspiracy.  A  charge  under  Sections
107/109 should therefore be  in  combination  with  a  substantive  offence,
whereas the charge  under  Sections  120-A/120-B  could  be  an  independent
charge.

89. In the Statement of Objects and Reasons to the Amendment  Bill,  it  was
explicitly stated that the new provisions (120-A and 120-B)  were  "designed
to assimilate the provisions of the Penal  Code  to  those  of  the  English
Law....". Thus, Sections 120-A  and  120-B  made  conspiracy  a  substantive
offence and rendered the mere agreement to  commit  an  offence  punishable.
Even if an overt act does not take place pursuant to the illegal  agreement,
the offence of conspiracy  would  still  be  attracted.  The  passages  from
Russell on Crimes, the House of Lords decision in Quinn v. Leathem  and  the
address of Willes, J. to the Jury in Mulcahy v. R. are often quoted  in  the
decisions of this Court. The passage in Russell on  Crimes  referred  to  by
Jagannatha Shetty, J. in Kehar Singh case (SCC  at  p.  731,  para  271)  is
quite apposite:

"The gist of the offence of conspiracy then lies, not in doing the  act,  or
effecting the purpose for which the conspiracy is formed, nor in  attempting
to do them, nor in inciting others to do them, but in  the  forming  of  the
scheme or agreement  between  the  parties.  Agreement  is  essential.  Mere
knowledge, or even discussion, of the plan is not, per se, enough."

This passage brings out the legal position succinctly."


15.   Therefore, if law permits  the  use  of  the  content  of  either  the
evidence given at trial or the statement made under Section 164  Cr.P.C.  by
PW64, he could be tried for an offence punishable under  Section  120B  IPC.
Because, on his own admission, PW64 agreed to kill Vijayan for a  price  and
accepted money from A2 towards the part  payment  of  such  price  and  also
drafted A3 into the conspiracy.

16.   If it is legally possible  to  try  PW64  for  such  an  offence,  the
further question would be whether he could be tried  along  with  the  other
accused facing trial for the charge of murder of Vijayan.  We  have  already
noticed that Section 223(d) of Cr.P.C.  authorizes  the  trial  of  "persons
accused  of  different  offences  committed  in  the  course  of  the   same
transaction".

17.   That leads us to a further question whether the offence said  to  have
been committed by PW64 and the offence for which  the  appellant  and  other
accused in Sessions Case No.73 of 2009 are being tried  were  "committed  in
the course of the same transaction".  The High Court examined this  question
and came to the conclusion that there  were  three  different  conspiracies;
(i) between A-2 and PW64, (ii) between PW64 and A-3, (iii) between  A-2  and
A-3 to A-7 and recorded a conclusion;
"Therefore, I hold that  the  conspiracies  committed  by  A2  and  the  2nd
respondent/P.W. 64 and the conspiracy between  the  2nd  respondent/P.W.  64
and A3 have got  nothing  to  do  with  the  subsequent  conspiracy  hatched
between A2, A3 and the rest of the accused."


18.   After such a conclusion, the High Court placing reliance on Balbir  v.
State of Haryana & Another (2000) 1 SCC 285  and  another  judgment  of  the
Gauhati  High  Court  in  M.L.  Sharma  &  Others  v.  Central   Bureau   of
Investigation 2008 Crl. L.J. 1725 reached the  conclusion  that  PW64  could
not be tried together  with  the  other  accused  already  facing  trial  in
Sessions Case No. 73 of 2009, as the said three conspiracies  "do  not  form
part of the same transaction"[4].

19.   We find it difficult to agree with  the  conclusion  recorded  by  the
High Court.  In our opinion, the High Court misread the principle laid  down
in Balbir case.

20.   The legal position regarding the joint trial of various  accused  fell
for  the  consideration  of  this  Court  in  State  of  Andhra  Pradesh  v.
Cheemalapati Ganeswara Rao & Another, AIR 1963 SC 1850.

21.   The facts,  the  question  and  the  decision  (insofar  as  they  are
relevant for our purpose) in the case of Ganeswara Rao are as follows.   Two
of the respondents therein along with two  others  were  tried  for  various
offences under the Indian Penal Code.  Both the respondents  were  convicted
for offences under Section 120B and 409 of the IPC.

(i)   The High Court set aside the convictions on various  grounds;  one  of
them being that the joint trial  of  two  or  more  persons  in  respect  of
different offences committed by each of them is illegal.  According  to  the
Andhra Pradesh High Court, Section 239[5] (of the Old Cr.P.C.  corresponding
to Section 223 of the Code of Criminal Procedure, 1973) did not permit  such
a procedure.

(ii)  Examining the correctness of the conclusion  recorded  by  the  Andhra
Pradesh High Court, this Court held:-
".....The question is whether for the purposes of s. 239(d) it is  necessary
to ascertain any thing more than  this  that  the  different  offences  were
committed in the course of the same transaction or whether it  must  further
be ascertained  whether  the  acts  are  intrinsically  connected  with  one
another.   Under s. 235(1)  what  has  to  be  ascertained  is  whether  the
offences arise out of acts  so  connected  together  as  to  form  the  same
transaction, but the words "so  connected  together  as  to  form"  are  not
repeated after the words "same transaction"  in  s.  239.  What  has  to  be
ascertained then is whether these words are also  to  be  read  in  all  the
clauses of s. 239 which refer to  the  same  transaction.   Section  235(1),
while providing for the joint trial for more than  one  offences,  indicates
that there  must  be  connection  between  the  acts  and  the  transaction.
According to this provision there  must  thus  be  a  connection  between  a
series  of  acts  before,  they  could  be  regarded  as  forming  the  same
transaction. What is meant by "same transaction" is not defined anywhere  in
the Code.   Indeed, it would always be difficult to  define  precisely  what
the expression means.  Whether a transaction can be  regarded  as  the  same
would necessarily depend upon the particular  facts  of  each  case  and  it
seems to us to be a difficult task to undertake a definition of  that  which
the Legislature has deliberately left undefined. We have not come  across  a
single decision of any Court which has embarked upon the difficult  task  of
defining the expression.  But it is generally thought that  where  there  is
proximity of time or place or unity of purpose and design or  continuity  of
action in respect of a series of acts, it may  be  possible  to  infer  that
they form part of the same transaction.  It is, however, not necessary  that
every one of  these  elements  should  co-exist  for  a  transaction  to  be
regarded as the same. But if several acts  committed  by  a  person  show  a
unity of purpose or design that would be a strong circumstance  to  indicate
that those acts form part of the same transaction.  The  connection  between
a series of acts seems to us to be an essential ingredient  for  those  acts
to constitute the same transaction and, therefore, the mere absence  of  the
words "so connected together as to form" in cl. (a), (c) and (d) of  s.  239
would make little difference.


(iii) This Court after taking  note  of  the  fact  that  the  clause  "same
transaction" is not defined under the Cr.P.C. opined  that  the  meaning  of
the clause should depend upon the facts of each case.  However,  this  Court
indicated that where there is a proximity of  time  or  place  or  unity  of
purpose and design or continuity of action in respect of a series  of  acts,
it is possible to infer that they form part of the same  transaction.   This
Court also cautioned that every one of  the  above-mentioned  elements  need
not co-exist for a transaction to be regarded as the "same transaction".

(iv) This Court approved a decision of Allahabad High Court in T.B.  Mukerji
v. The State, AIR 1954  All  501  insofar  as  it  dealt  with  the  general
principles of the joint and separate trials and held as follows:
"No doubt, as has been rightly pointed out in this case, separate  trial  is
the normal rule and joint trial is an exception.   But while this  principle
is easy to appreciate and follow where one person alone is the  accused  and
the interaction or intervention of the acts of more persons  than  one  does
not come in, it would, where the same act is committed by  several  persons,
be not only inconvenient but injudicious to  try  all  the  several  persons
separately.    This  would  lead  to  unnecessary  multiplicity  of   trials
involving  avoidable  inconvenience   to   the   witnesses   and   avoidable
expenditure of public time and money.   No corresponding  advantage  can  be
gained by the  accused  persons  by  following  the  procedure  of  separate
trials.    Where,  however,  several  offences  are  alleged  to  have  been
committed by several accused persons it may be  more  reasonable  to  follow
the normal rule of separate trials.   But here,  again,  if  those  offences
are alleged not to be wholly unconnected but as forming  part  of  the  same
transaction the only consideration that will justify separate  trials  would
be the  embarrassment  or  difficulty  caused  to  the  accused  persons  in
defending themselves.   We entirely agree with the  High  Court  that  joint
trial should be founded on some principle."
                                                         [emphasis supplied]


(v)   This Court recorded a final conclusion that the  Andhra  Pradesh  High
Court was wrong in setting aside the conviction on  the  ground  that  there
was a misjoinder of the charges and held;
"33. ...Merely because the accused persons are charged with a  large  number
of offences and convicted at the trial the conviction cannot  be  set  aside
by the appellate court unless it in fact came to  the  conclusion  that  the
accused persons were embarrassed in  their  defence  with  the  result  that
there was a failure of justice.  For all these reasons we cannot accept  the
argument of learned counsel on the  ground  of  misjoinder  of  charges  and
multiplicity of charges."

22.   According to us, the principle enunciated in  Ganeswara  Rao  case  is
that where several persons are alleged to have  committed  several  separate
offences, which, however, are not wholly unconnected, then there  may  be  a
joint trial unless such joint trial is likely to cause either  embarrassment
or difficulty to the accused in defending themselves.

23.   Coming to Balbir case (supra), the  facts  are  as  follows.   One  Om
Prakash was killed.   On the basis of a report made to  the  police  by  the
nephew of the deceased accusing two brothers Balbir and Rajinder to  be  the
assailants, police registered a crime and investigated.   On  the  basis  of
investigation, eventually, the police filed a chargesheet under Section  302
IPC against one Guria but not against the two accused mentioned in the  FIR.
  The  nephew  of  the  deceased  lodged  a  private  complaint  before  the
magistrate accusing Balbir and Rajinder of the murder  of  Om  Prakash.   It
was alleged therein that the police had  deliberately  suppressed  the  case
against the real culprits and filed  a  chargesheet  against  Guria.   As  a
consequence, two  sessions  cases  were  registered  and  tried  separately.
Guria was acquitted and his acquittal became  final.   Whereas,  Balbir  and
Rajinder were  convicted  by  the  Sessions  Court.   Their  conviction  was
confirmed by the High Court.   It  was  argued  before  this  Court  by  the
convicts that such separate trials were uncalled  for  and  both  the  cases
must have been consolidated and tried jointly  invoking  Section  223(a)  of
the Cr.P.C.  This Court rejected the submission:
"16.  .....for  both  versions  here  are  diametrically  divergent  without
anything in common except that the murdered person was  the  same.  In  such
cases the most appropriate procedure to be  followed  by  a  Sessions  Judge
should be the same as followed in the present case i.e. the two trials  were
separately conducted one after the other by the same court before  the  same
Judge and judgments in both cases were separately  pronounced  on  the  same
day.  No doubt the Sessions Judge should take care  that  he  would  confine
his judgment in one case only to the evidence  adduced  in  that  particular
case."


Both Guria on one hand and Balbir  and  Rajinder  on  the  other  hand  were
independently accused of murdering Om Prakash.  It does  not  appear  to  be
either the case of the police or the  private  complainant  that  all  three
accused acted in concert and killed Om Prakash.  Therefore, this Court  held
that the application of  Section  223(a)  is  clearly  ruled  out.   In  the
process, this Court referred to Ganeswara Rao  case  and  extracted  certain
passages.

24.   In our opinion, the reference to Ganeswara Rao case in Balbir case  is
not really necessary. Ganeswara Rao case was a case  falling  under  Section
223(d) (Section 239 of old Cr.P.C.) which  contemplates  different  offences
committed by different persons.  In Balbir case, the offence  is  only  one.
It is  the  murder  of  Om  Prakash.   Different  persons  are  accused  not
collectively but individually of having committed the murder of Om  Prakash.
 Therefore, Section 223(d) would have no application to Balbir case.

25.   At any rate, the reliance placed on Balbir case by the High  Court  in
the case on hand, in our opinion, is wholly misplaced.  It is not a case  of
either the prosecution or PW64 that the murder of Vijayan was  committed  by
the persons other than  the  accused  facing  the  trial.   PW64  only  gave
evidence as to the genesis of  the  conspiracy  to  kill  Vijayan  of  which
various accused and also PW64 are  parties  at  different  points  of  time.
Going by the test laid down in Ganeswara Rao case, assuming the  correctness
of the conclusion recorded by the High Court that there are three  different
conspiracies between different parties as explained earlier,  it  cannot  be
said that these offences are so  wholly  unconnected  that  they  cannot  be
tried together.  Then the only other consideration which  might  preclude  a
joint trial is that such a joint trial would either cause  embarrassment  or
difficulty to the accused in defending themselves.

26.   It is  not  the  case  of  the  accused  that  they  would  have  some
difficulty in defending themselves if PW64 is also tried alongwith them  for
the offence of conspiracy to kill Vijayan.  On the other  hand,  it  is  the
case of the accused that  not  trying  PW64  along  with  them  would  cause
prejudice to their defence.

27.   Therefore, in our view, the High Court is clearly wrong in  concluding
that PW64 could not be tried alongwith  the  other  accused  under  Sessions
Case No.73 of 2009.  But that does not  solve  the  problem.   The  question
whether the other requirements of Section 319 are satisfied  warranting  the
summoning of PW64 under Section  319  of  Cr.PC  is  still  required  to  be
examined.

28.   The second requirement under  Section  319  Cr.P.C.  for  a  court  to
summon a person is that it must appear from the evidence that such a  person
has committed an offence.  It is not necessary for us to  analyse  the  full
amplitude of the expression "evidence" occurring under Section 319,  but  it
is axiomatic that the deposition made by a witness during the course of  the
trial of a sessions case is certainly evidence within the  meaning  of  that
expression as defined under Section 3 of the Evidence Act.

29.   Having regard to the content of the deposition of PW64  at  the  trial
of Sessions Case No.73 of 2009, whether his deposition  can  be  treated  as
evidence within the meaning of that expression occurring in Section  319  of
the Cr.P.C. in order to summon him as an accused to be tried along with  the
appellant herein and other accused already facing trial?

30.   It was argued before the High Court as well  as  this  Court  that  in
view of the proviso to Section 132[6] of the Evidence Act,  the  content  of
PW64's deposition is not evidence within the meaning of Section 319  of  the
Cr.P.C. to form the basis for summoning of PW64 as an accused  to  be  tried
along with the other accused.
31.    The  High  Court  on  an  elaborate  consideration  of  the   various
authorities and the legal position came to the conclusion;
"63.  In view of all the above discussions, I hold that the evidence of  the
2nd respondent, as a prosecution witness before the  trial  court,  and  the
incriminating answers given by him amount  to  compelled  testimony  falling
within the sweep of Section  132  of  the  Evidence  Act  and  thus,  he  is
protected by the proviso to Section 132 of the Evidence Act."
(emphasis supplied)


32.   The learned  counsel  for  the  appellant  argued  that  PW64  is  not
entitled to the benefit of  the  immunity  provided  under  the  proviso  to
Section 132 of the Evidence  Act  as  such  evidence  of  PW64  is  evidence
voluntarily given by him before the Court and not evidence  which  PW64  was
"compelled to give".  The learned counsel submitted that  having  regard  to
the language of the proviso, it is only  those  answers  (whose  content  is
incriminatory) which a witness is compelled to give that  cannot  be  proved
against  such  witness  in  any   criminal   proceeding.    But,   if   such
incriminatory statements are made by a witness at the trial of  a  civil  or
criminal proceeding voluntarily without there  being  any  compulsion,  then
the protection under the proviso to Section 132 is not available to  such  a
person.  The learned counsel placed heavy reliance  on  a  decision  in  the
case of The Queen v. Gopal  Doss  &  Another,  ILR  3  Mad.  271  and  other
judgments of the various High Courts which either followed or  are  in  tune
with Gopal Doss (supra) in support of his submission.

33.    The  scope  of  Section  132  of  the  Evidence  Act  fell  for   the
consideration of Madras High Court as early as in 1881 in the case of  Gopal
Doss.

34.   A Bench of five Judges heard the matter.  The facts are as follows.

(i)   A suit for summary recovery  of  an  amount  of  Rs.1000/-  was  filed
against Gopal Doss and his son Vallaba Doss.  It  was  a  suit  under  Order
XXXIX of Code of Civil Procedure 1859, corresponding to Order XXXVII of  the
CPC 1908 based on a promissory note allegedly signed by Gopal Doss  and  his
son.  Both the father and son sought leave of the Court to defend the  suit,
which was granted.   Gopal Doss denied his signature on the suit  promissory
note whereas his son "swore that he wrote both signatures on the  promissory
note according  to  the  instructions  of  the  plaintiff"  for  a  monetary
consideration.  The suit was decreed against the son.   Subsequently,  Gopal
Doss prosecuted his son and the plaintiff for  forgery  and  other  charges.
The plaintiff was acquitted and Vallaba Doss was  convicted.   The  question
was - whether (a) the affidavit filed by Vallaba Doss in  the  summary  suit
in support of  his  claim  for  leave  to  defend  the  suit,  and  (b)  his
deposition at the trial of the said suit  are  admissible  evidence  against
Vallaba Doss in the criminal case.

(ii)  The matter was heard by a Bench of five Judges.  Three  of  them  held
both the affidavit and deposition  were  admissible  evidence,  whereas  two
Judges held that only affidavit was  admissible,  but  not  the  deposition.
(Dissenting opinion  was  written  by  Justice  Muttusami  Ayyar  with  whom
Justice Kernan agreed.)

 (iii)      Insofar as the deposition of Vallaba Das in  the  summary  suit,
the basic issue was whether the compulsion contemplated  under  Section  132
is compulsion of law arising out of a statutory obligation or compulsion  by
the  presiding  Judge  by  not  excusing  the  witness  from  answering  any
particular question put to him.

35.   Chief Justice Turner commenced from the premise that under Section  14
of the Indian Oaths Act, 1873 (corresponding to Section 8 of the Oaths  Act,
1969), every person giving evidence on any subject before any  court  (or  a
person authorized to administer oaths and affirmations) shall  be  bound  to
state the truth of such subject and the Court was the  authority  to  either
compel or excuse the witness from complying  with  the  requirement  of  the
above-mentioned rule.   Turner, CJ examined the scheme of  Sections  121  to
132 of the Evidence Act  and  held  that  the  expressions  "compelled"  and
"permitted" employed in those sections "are so  used  as  to  pre-suppose  a
public officer having authority to compel or to permit and exercising it  at
the time, the necessity when such compulsion  or  permission  arises".    He
further  held  that  ".....  implies  an  inquiry  and   decision   on   the
circumstances which excuse or prohibit  the  compulsion  or  permission  and
action on the  part  of  the  authority  presiding  at  the  examination  in
pursuance of its decision".   In  substance,  Turner,  CJ  opined  that  the
compulsion is not by virtue of an obligation arising under law  but  imposed
by the Judge.

36.   On the other hand, both Justice Ayyar and Justice Kernan  opined  that
the compulsion is the obligation arising out of law, but not the  compulsion
imposed by the Judge.
"It seems to me that  the  Legislature  in  India  adopted  this  principle,
repealed the law of privilege, and thereby obviated  the  necessity  for  an
inquiry as to how the answer to a  particular  question  might  criminate  a
witness, and gave him an indemnity by  prohibiting  his  answer  from  being
used in evidence against him and thus secured the benefit of his  answer  to
the cause of justice, and the benefit of the rule,  that  no  one  shall  be
compelled to criminate himself, to the witness when  a  criminal  proceeding
is instituted against him.  The conclusion I come to  is  that  Section  132
abolishes the law of privilege and creates an obligation  in  a  witness  to
answer every question material to the issue, whether  the  answer  criminate
him or not, and gives him a right, as correlated  to  that  duty,  to  claim
that the answer shall not be admitted in evidence against him in a  criminal
prosecution."  (per Muttusami Ayyar, J.)
                                                         [emphasis supplied]

37.   Logic of Justice Ayyar for coming to such a conclusion was:
"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.

... Under the law of privilege, it is necessary to set it up because  it  is
only an excuse which the Judge may or may not recognize as good, and  it  is
his decision that either accords the privilege or withholds  it;  but  under
Section 132 it is not in the power of the Judge to  excuse  a  witness  from
answering if the question is relevant to the issue.  Such  being  the  case,
it is not clear to me why a witness should go through  the  form  of  asking
and being refused to be excused."

38.   Coming to the question  of  the  admissibility  of  the  affidavit  of
Vallaba Doss,
(a)   Justice Ayyar opined that since the affidavit  given  in  the  summary
suit was given by Vallaba Doss in his capacity as a  party  (but  not  as  a
witness) to the suit with a view to obtaining leave to defend the  suit,  it
was a voluntary statement  made  by  Vallaba  Doss  without  any  compulsion
(either from the Judge or of law) within the meaning of Section 132  of  the
Evidence Act, and therefore, admissible evidence against Vallaba  Doss,  the
subsequent prosecution.

(b)   Justice Kernan agreed fully with the views of Justice Ayyar.

(c)   Turner, CJ held:
"If I am right in the construction I have put on  the  language  of  Section
132, it follows that the affidavit on which the accused  obtained  leave  to
defend was also admissible."


39.   The scope of Section 132 of the Evidence Act  fell  for  consideration
of this Court in Laxmipat Choraria & Others v. State of Maharashtra,  (1968)
2 SCR 624.  Three appellants  (brothers)  were  convicted  for  the  offence
under Section 120-B of the Indian Penal Code and Section 167(81) of the  Sea
Customs Act, 1878.  Briefly stated the facts are that the  three  appellants
before  this  Court  were  part   of   an   international   gold   smuggling
organization. The kingpin of the organization was a Chinese  citizen  living
in Hong Kong.  One Ethyl Wong, an Air  Hostess  of  Air  India  was  also  a
member of the abovementioned  organization  and  carried  gold  on  "several
occasions".  She was examined as a prosecution witness  in  the  case.  "She
gave a graphic account of  the  conspiracy  and  the  parts  played  by  the
accused and her own share in the transaction.   Her  testimony  was  clearly
that of an accomplice."

40.   Before this Court, the main argument was that "Ethyl  Wong  could  not
be examined as a witness because (a) no oath could be  administered  to  her
as she was an accused person since Section 5 of the Indian  Oaths  Act  bars
such a course and (b)  it  was  the  duty  of  the  prosecution  and/or  the
Magistrate to have tried  Ethyl  Wong  jointly  with  the  appellants.   The
breach of the  last  obligation  vitiated  the  trial  and  the  action  was
discriminatory.  In the alternative, even if the trial was not  vitiated  as
a whole, Ethyl Wong's testimony must be excluded from consideration and  the
appeal reheard on facts here or in the High Court".

41.   Dealing  with  the  question  whether  Ethyl  Wong  should  have  been
prosecuted along with other accused, this Court opined:
"The prosecution was not bound to prosecute her, if they  thought  that  her
evidence was necessary to break a smugglers' ring. Ethyl Wong was  protected
by s. 132 (proviso) of the Indian Evidence Act even  if  she  gave  evidence
incriminating herself. She was a competent witness...."

42.   Dealing with the immunity conferred  under  Section  132,  this  Court
held thus:
"Now there can be no doubt that Ethyl Wong was a  competent  witness.  Under
Section 118 of the Indian Evidence Act all persons are competent to  testify
unless the court considers that they are prevented  from  understanding  the
questions put to them for reasons indicated in that section.  Under  Section
132 a witness shall not be excused from answering any  question  as  to  any
matter relevant to the matter in issue in  any  criminal  proceeding  (among
others) upon the ground that the answer to such  question  will  incriminate
or may tend directly or indirectly to expose him to a penalty or  forfeiture
of any kind. The safeguard to this compulsion is that no such  answer  which
the witness is compelled to give exposes him to any  arrest  or  prosecution
or can it be  proved  against  him  in  any  criminal  proceeding  except  a
prosecution for giving false evidence by such answer.  In  other  words,  if
the customs authorities treated Ethyl Wong as a witness and produced her  in
court, Ethyl Wong was bound  to  answer  all  questions  and  could  not  be
prosecuted for her answers. Mr. Jethmalani's argument  that  the  Magistrate
should have promptly put her  in  the  dock  because  of  her  incriminating
answers overlooks Section 132 (proviso). 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.  The  protection  is  further
fortified by Article 20(3) which 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.
A person who voluntarily answer 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  co-accused.  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."
                                                         [emphasis supplied]


43.   In substance, this Court held  that  once  the  prosecution  chose  to
examine Ethyl Wong as a witness she was bound to answer every  question  put
to her.  In the process, if the  answers  given  by  Ethyl  Wong  are  self-
incriminatory apart from being evidence of  the  guilt  of  the  others  she
could not be prosecuted on the basis  of  her  deposition  in  view  of  the
proviso to Section 132 of the Evidence Act.  This Court's  conclusions  that
"in India the privilege of refusing to answer has been  removed  ....."  and
that "the safeguard to this compulsion" in our opinion, are clearly in  tune
with the dissenting opinion expressed by Ayyar, J.  in  Gopal  Doss's  case.
This Court opined that the proviso to Section 132 of the Evidence Act  is  a
necessary corollary to the principle enshrined under Article  20(3)  of  the
Constitution of India which confers a  fundamental  right  that  "no  person
accused of any offence shall be compelled to be a witness against  himself."
 Though such a fundamental right is available only to a  person  who  is  an
accused of an offence, the proviso  to  Section  132  of  the  Evidence  Act
creates a statutory immunity in favour of a witness who in  the  process  of
giving evidence in any suit or in any civil or criminal proceeding  makes  a
statement which criminates himself.  Without such  an  immunity,  a  witness
who is giving evidence before a Court to enable the Court to  reach  a  just
conclusion (and thus assisting the process of  law)  would  be  in  a  worse
position than an accused in a criminal case.

44.   The sweep of Article 20  fell  for  consideration  of  this  Court  in
Nandini Satpathy v. P.L. Dani & Another, (1978) 2  SCC  424.   Justice  V.R.
Krishna Iyer spoke for the bench. (i)  It was a case  where  a  crime  under
the Prevention of Corruption  Act  and  certain  other  offences  under  the
Indian Penal Code came to be registered  against  Nandini  Satpathy,  former
Chief Minister of Orissa.

(ii)  This Court examined the scheme of Article  20(3)  and  Section  161(2)
and  opined  that  ".....  we  are  inclined  to  the  view,  terminological
expansion apart, the Section 161(2) of the CrPC is a parliamentary gloss  on
the constitutional clause".   This Court  also  recognised  that  protection
afforded by Section 161(2) is wider than the protection afforded by  Article
20(3) in some respects.  "...The learned  Advocate  General,  influenced  by
American decisions rightly agreed that in expression Section 161(2)  of  the
Code might  cover  not  merely  accusations  already  registered  in  police
stations but those which are likely to be the basis for  exposing  a  person
to a criminal charge.   Indeed, this wider construction,  if  applicable  to
Article 20(3),  approximates  the  constitutional  clause  to  the  explicit
statement of the prohibition in  Section  161(2).    This  latter  provision
meaningfully uses the expression 'expose  himself  to  a  criminal  charge'.
Obviously, these words mean, not only cases  where  the  person  is  already
exposed to a criminal  charge  but  also  instances  which  will  imminently
expose him to criminal charges.   In Article 20(3), the expression  'accused
of any offence' must mean formally accused in praesenti not in futuro -  not
even imminently as decisions now stand."

(iii) This Court opined that there is "cluster of  rules"  commonly  grouped
under the term 'privilege against self-incrimination'.  The origins of  such
privilege against self-incrimination are traceable to a  sharp  reaction  to
the practice of the court of Star Chamber which  readily  convicted  persons
on the basis of self-incrimination.  Such  a  rule  of  the  common  law  is
embodied in Article 20(3) of the Constitution of India.


(iv)  This Court opined that the protection of Article  20(3)  is  available
not only to a person who is facing trial for an offence before  a  Court  of
law but even to a person embryonically accused by being brought into  police
diary.  In other words, 'suspects'  but  'not  formally  charged'  are  also
entitled for the protection of Article 20(3).

45.   The rule against self-incrimination found  expression  in  Indian  law
much before advent of the  Constitution  of  India  [under  Article  20(3)].
Facets of such rule are seen in (i) Section 161 Cr.P.C., 1898.   Sub-section
(1) authorised a police officer investigating a case to examine  any  person
"supposed to be acquainted with the facts and circumstances  of  the  case".
Sub-section (2) exempted such person from  answering  the  questions  "which
would have a tendency to expose him to a criminal charge or to a penalty  or
forfeiture".  Section 161 of the Cr.P.C., 1973 corresponds  to  Section  161
of the Cr.P.C., 1898.  Sub-sections (2) of both the old  and  new  Code  are
substantially identical[7].

(ii)  Another facet of the rule against self-incrimination finds  expression
in Sections 25[8] and 26[9] of the Evidence  Act  which  make  a  confession
made to a police officer or a confession made while in the  custody  of  the
police inadmissible in evidence.

(iii) The proviso to Section 132  of  the  Evidence  Act,  in  our  opinion,
embodies another facet of the rule against self-incrimination.

46.   Section 132 existed on the statute book from 1872 i.e.  for  78  years
prior to the advent of the guarantee under Article 20  of  the  Constitution
of India.  As pointed out by Justice Muttusami Ayyar in Gopal Doss  (supra),
the policy under Section 132 appears to  be  to  secure  the  evidence  from
whatever sources it is available for doing justice in a case brought  before
the Court.  In the process of securing such evidence, if a  witness  who  is
under obligation to state the truth because of the Oath taken by  him  makes
any statement which will criminate or tend to expose such  a  witness  to  a
"penalty or forfeiture of any kind etc.", the  proviso  grants  immunity  to
such a witness by declaring that "no such answer given by the witness  shall
subject him to any arrest or prosecution or be proved  against  him  in  any
criminal proceeding".  We  are  in  complete  agreement  with  the  view  of
Justice Ayyar on the interpretation of Section 132 of the Evidence Act.

47.   The proviso to Section 132 of the Evidence Act is a facet of the  rule
against self incrimination and the same is statutory immunity  against  self
incrimination which deserves the most liberal construction.   Therefore,  no
prosecution can be launched against the maker of a statement falling  within
the sweep of Section 132 of the Evidence Act on the basis  of  the  "answer"
given by a person while deposing as a "witness" before a Court.

48.   In the light of our above discussion, we are of the opinion  the  High
Court rightly refused to summon PW64 as an accused  to  be  tried  alongwith
the appellant and others.

49.   Before we part with this case, we  must  also  place  on  record  that
during the argument and in the written submission filed  on  behalf  of  the
appellant, a point is sought to be  made  that  PW64  could  not  have  been
examined as a witness without securing pardon under Section 306 Cr.PC.

50.   In the application filed under Section  319  Cr.PC  before  the  trial
Court in this regard, it is stated as follows:
"The petitioner submits that if the prosecution wants him to be  a  witness,
he should have been made as an Approver and  tender  of  pardon  proceedings
should have been taken up."


51.   It is not very clear  from  the  judgment  under  appeal  as  to  what
exactly was the submission made in support of the above mentioned plea,  but
the High Court recorded at para 20:
"............ If it is so held, then the 2nd  respondent  is  liable  to  be
tried along with the other accused in the  present  case,  undoubtedly,  the
examination of the 2nd respondent/P.W.64 as a  prosecution  witness  without
there being an order of pardon is illegal.  But, for any reason,  if  it  is
so held tha the 2nd respondent/P.W.64 cannot  be  tried  together  with  the
rest of the accused in one and the same  trial  on  the  ground  that  these
offences have not been committed in the  course  of  the  same  transaction,
then, there is nothing illegal in examining the 2nd respondent as a  witness
for the prosecution without pardon under Section 306 of  Cr.P.C.   In  other
words, suppose, the trial of A2 and  A3  is  conducted  in  respect  of  the
offence of conspiracy, allegedly  committed  by  them  along  with  the  2nd
respondent, in that trial, if the 2nd respondent is  to  be  examined  as  a
prosecution  witness,  certainly,  pardon  under  Section  306  Cr.P.C.   is
mandatory and without such pardon, he cannot be examined  as  a  prosecution
witness.  Thus, the crux of the issue involved in this case is  whether  the
2nd respondent could be tried together with the rest of the accused  in  the
present trial."


52.   The High Court recorded the conclusion that the  examination  of  PW64
as a prosecution witness without securing pardon under Section 306 Cr.PC  is
illegal if PW64 is a party to the conspiracy alongwith  A2  and  A3  without
assigning any reason in support of such a conclusion.

53.   The question whether prosecution could have  examined  somebody  as  a
witness against whom there is some material indicating his participation  in
a crime fell for the  consideration  of  this  Court  on  two  occasions  in
Laxmipat Choraria & Others v. State of Maharashtra,  AIR  1968  SC  938  and
A.R. Antulay v. R.S. Nayak & Another, (1988) 2 SCC 602.

54.   We have already taken note of the relevant facts and the  decision  of
this Court in Choraria case.  The relevant facts of A.R.  Antulay  case  are
as follows.  Before the "trial Court" it was contended by Antulay  that  the
examination  of  some  of  his  alleged  co-conspirators  as  witnesses  and
proposal to examine some more of them is legally not tenable and  they  must
be arrayed as accused.  Such a contention was negated by  the  trial  Judge.
Aggrieved by the same, Antulay carried the matter in appeal to  this  Court.
Unfortunately, the majority judgment did not consider this  aspect.   It  is
only  Justice  Venkatachaliah,  as  His  Lordship  then  was,  who  in   his
dissenting judgment considered this aspect and held as follows:
"133.  ......... An accused person cannot assert any right to a joint  trial
with his co-accused. Normally it is the right of the prosecution  to  decide
whom it prosecutes. It can decline to array a person as  a  co-accused  and,
instead, examine him as a witness for the prosecution. What weight is to  be
attached to that evidence, as it may smack of  the  testimony  of  a  guilty
partner, in crime, is  a  different  matter.  Prosecution  can  enter  Nolle
proseque against any accused-person.  It  can  seek  to  withdraw  a  charge
against an accused person.  These  propositions  are  too  well  settled  to
require any further elaboration. Suffice  it  to  say  that  the  matter  is
concluded by the pronouncement of this Court in Laxmipat Choraria  v.  State
of  Maharashtra:  1968CriLJ1124  where  Hidayathullah  J  referred  to   the
argument that the accomplice, a certain Ethyl Wong in that  case,  had  also
to be arrayed as an accused and repelled it, observing:

Mr. Jethmalani's argument that the Magistrate should have promptly  put  her
in the dock because of  her  incriminating  answers  overlooks  Section  132
(proviso).


...The prosecution was not bound to prosecute her, if they thought that  her
evidence was necessary to break a smugglers' ring. Ethyl Wong was  protected
by Section 132 (proviso) of  the  Indian  Evidence  Act  even  if  she  gave
evidence incriminating herself. She was a  competent  witness  although  her
evidence  could  only  be  received  with  the  caution  necessary  in   all
accomplice evidence.


134.  On this point, really, appellant cannot be heard to complain.  Of  the
so called co-conspirators some have been  examined  already  as  prosecution
witnesses; some others proposed to be so examined; and two others, it  would
appear, had died in  the  interregnum.  The  appeal  on  the  point  has  no
substance and would require to be dismissed. We must now turn to the  larger
issue raised in the appeal."


55.   In the light of the above two decisions, the proposition  whether  the
prosecution has a liberty to examine any person as a witness in  a  criminal
prosecution notwithstanding that there is some  material  available  to  the
prosecuting agency to indicate that such a person is also  involved  in  the
commission of the  crime  for  which  the  other  accused  are  being  tried
requires a deeper examination.

56.   Unfortunately before us, except asserting  the  proposition  no  clear
submissions are made in this  regard.   In  the  circumstances,  we  do  not
propose to examine the proposition in the present case.   However,  in  view
of the fact Section 307 Cr.P.C. authorizes even a Court conducting trial  to
tender pardon to such a person, we believe that the ends of justice in  this
case would be met by directing the trial Court to grant pardon in favour  of
PW64 after following  the  appropriate  procedure  of  law  and  record  his
evidence afresh.

57.   We order accordingly.  The appeal stands disposed of.


                                       ...................................J.
                                                      (J. Chelameswar)


                                       ...................................J.
                                        (C. Nagappan)
New Delhi;
March 16, 2015

-----------------------
[1]    Judgment dated 13.11.2014 passed by the High Court of Madras in Crl.
R.C. No.425 of 2014
[2]    Section 223. What persons may be charged  jointly.  -  The  following
persons may be charged and tried together, namely:-

      (a)   persons accused of the same  offence  committed  in  the  course
same transaction;
      (b)   persons accused of an offence and persons  accused  of  abetment
of, or attempt to commit, such offence;
      (c)   persons accused of more than  one  offence  of  the  same  kind,
within the meaning of section 219  committed  by  them  jointly  within  the
period of twelve months;
      (d)   persons accused of different offences committed  in  the  course
of the same transaction;
      (e)   persons accused of an offence which includes  theft,  extortion,
cheating, or criminal misappropriation, and persons accused of receiving  or
retaining,  or  assisting  in  the  disposal  or  concealment  of,  property
possession of which is alleged to have been transferred by any such  offence
committed by the first named persons, or of abetment  of  or  attempting  to
commit any such last- named offence;
      (f)   persons accused of offences under sections 411 and  414  of  the
Indian Penal Code (45 of 1860 ). or either of those sections in  respect  of
stolen property  the  possession  of  which  has  been  transferred  by  one
offence;
      (g)   persons accused of any offence under Chapter XII of  the  Indian
Penal Code (45 of 1860) relating to counterfeit coin and persons accused  of
any other offence under the said Chapter relating to the same  coin,  or  of
abetment of or attempting to commit any such  offence;  and  the  provisions
contained in the former part of this Chapter shall, so far as may be,  apply
to all such charges:

      Provided that where a number of  persons  are  charged  with  separate
offences and  such  persons  do  not  fall  within  any  of  the  categories
specified in this section, the Magistrate or Court of Session may,  if  such
persons by an application in  writing,  so  desire,  and  if  he  or  it  is
satisfied that such persons would not  be  prejudicially  affected  thereby,
and it is expedient so to do, try all such persons together.

[3]     120A. Definition of criminal conspiracy.-When two  or  more  persons
agree to do, or cause to be done,-

      (1)   an illegal act, or
      (2)   an act which is not illegal by illegal means, such an  agreement
is designated a criminal conspiracy: Provided that no  agreement  except  an
agreement to commit an offence shall amount to a criminal conspiracy  unless
some act besides the agreement is done  by  one  or  more  parties  to  such
agreement in pursuance thereof.

      Explanation.-It is immaterial whether the illegal act is the  ultimate
object of such agreement, or is merely incidental to that object.

[4]    From these judgments, it is  crystal  clear  that  there  is  a  vast
difference between the expression in respect of the same subject-matter  and
in the course of the same transaction.   Here,  again,  as  I  have  already
concluded, though all the conspiracies relate to  the  same  subject-matter,
they do not form part of  the  same  transaction.    Therefore,  I  have  no
hesitation to hold that in the present  case,  the  2nd  respondent/P.W.  64
cannot be tried together with the accused,  who  are  presently  facing  the
prosecution.

[5]     Section 220(1) and 223(d) employ the clause "the same  transaction".
It may  be  mentioned  here  that  while  Section  220(1)  of  the  Criminal
Procedure Code, 1973 deals with the joint trial of  more  than  one  offence
committed by the same person, Section 223 deals  with  the  joint  trial  of
different  offences   committed   by   different   persons   under   certain
circumstances.

[6]     132. Witness not excused from answering on ground that  answer  will
criminate.-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.
      Proviso - Provided that no such  answer,  which  a  witness  shall  be
compelled to give, shall subject him to any arrest  or  prosecution,  or  be
proved against him in any criminal  proceeding,  except  a  prosecution  for
giving false evidence by such answer."

[7]    Section 161(2) of CrPC 1973. - Such person shall be bound  to  answer
truly all questions relating to such case put to him by such officer,  other
than questions the answers to which would have a tendency to expose  him  to
a criminal charge or to a penalty or forfeiture.
      Section 161(2) of Cr.P.C. 1898.  -  Such  person  shall  be  bound  to
answer all questions relating to such case  put  to  him  by  such  officer,
other than questions the answers to which would have a  tendency  to  expose
him to a criminal charge or to a penalty or forfeiture.
[8]    Section 25.  Confession  to  police  officer  not  to  be  proved.-No
confession made to a police officer, shall be proved  as  against  a  person
accused of any offence.
[9]    Section 26.  Confession by accused while in custody of police not  to
be proved against him.-No confession made by any person whilst he is in  the
custody of a police officer, unless it be made in the immediate presence  of
a Magistrate, shall be proved as against such person.
      Explanation.-In this section "Magistrate" does not  include  the  head
of a village discharging magisterial functions in  the  Presidency  of  Fort
St. George or elsewhere, unless such headman is a Magistrate exercising  the
powers of a Magistrate under the Code of Criminal  Procedure,  1882  (10  of
1882)


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