Raghuveer Sharan vs District Sahakari Krishi Gramin Vikas Bank & Anr.

Held: In the instant case, the appellant was summoned as an additional accused u/s. 319 of the Cr.P.C. not only on the basis of his pre-summoning statement but on the basis of the statement of PW-1 who was examined as a witness on 31.03.2022 – Had the appellant been proposed as an additional accused on the basis of his statement, he would have been summoned immediately after his pre-summoning statement was recorded on 19.03.2016 – Thus, the present is a case where the appellant has been summoned as an additional accused on the basis of the statement of PW1 – The proviso to Section 132 offers statutory immunity against selfincrimination providing 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 proceedings except a prosecution for giving false evidence by such answer – Thus, the only protection available is, a witness cannot be subjected to prosecution on the basis of his own statement – It nowhere provides that there is complete and unfettered immunity to a person even if there is other substantial evidence or material against him proving his prima facie involvement – Reverting to the issue as to whether there is prima facie material against the appellant for summoning him as an accused in exercise of power u/s. 319 Cr.P.C. – It is to be seen that in his statement during trial recorded on 31.03.2022, PW-1 has categorically stated in para 5 of the examination-in-chief that the interpolations by applying fluid have been made under the initials and signatures of the appellant – Thus, there is prima facie material for exercise of power u/s. 319 Cr.P.C. [Paras 24, 25, 27] Evidence Act, 1872 – Proviso to Section 132:

Held: The proviso to Section 132 of the Act is based on the maxim nemo Tenetur prodere seipsum i.e. no one is bound to criminate himself and to place himself in peril – In this regard the law in England, (with certain exceptions) is that a witness need not answer any question, the tendency of which is to expose the witness, or to feed hand of the witness, to any criminal charge, penalty or forfeiture – The privilege is based on the principle of encouraging all persons to come forward with evidence, by protecting them, as far as possible, from injury or needless annoyance in consequence of so doing – This absolute privilege, in some cases tended to bring about a failure of justice, for the allowance of the excuse, particularly when the matter to which the question related was in the knowledge solely of the witness, deprived the court of the information which was essential to its arriving at a right decision – In order to avoid this inconvenience, Section 132 of the Act, withdrew this absolute privilege and affords only a qualified privilege – The witness is deprived of the privilege of claiming excuse from testifying altogether; but, while subjecting him to compulsion, the legislature, in order to remove any inducement to falsehood, declared that evidence so obtained should not be used against him, except for the purpose in the Act declared. [Paras 12, 13] Evidence Act, 1872 – s.132 – Whether the qualified privilege under the proviso to Section 132 of the Act, grants complete immunity to a person who has deposed as a witness (and made statements incriminating himself), notwithstanding the availability of other material with the prosecution: Held: The qualified privilege under the proviso to Section 132 of the Act, is intended to ensure that all the evidence is placed before the Court to reach a just conclusion – In view of this Court, it is not fathomable that a provision in the Evidence Act, the primary purpose of which was to ensure that all the material is before the Court and ensure that the ends of justice are met, could itself grant a blanket immunity to a witness (albeit complicit) – Such an interpretation would be unsustainable – Needless to say, that his statement cannot be used for any purpose whatsoever for the purposes of bringing such witness to trial – Thus, the qualified privilege under the proviso to Section 132 of the Act does not grant complete immunity from prosecution to a person who has deposed as a witness (and made statements incriminating himself). [Para 20] Evidence Act, 1872 – Code of Criminal Procedure, 1973 – What is the course available to a Court, which in the course of trial is confronted with evidence, other than the statement of the witness (against whom incriminating material is available); Whether the Court can rely upon the statement of the witness for invoking the provisions of Section 319 Cr.P.C.; Whether reference to any statement tendered by the witness would vitiate the order under Section 319 Cr.P.C.:

Held: There cannot be an absolute embargo on the Trial Court to initiate process under Section 319 Cr.P.C., merely because a person, who though appears to be complicit has deposed as a witness – The finding to invoke Section 319 Cr.P.C., must be based on the evidence that has come up during the course of Trial – There must be additional, cogent material before the Trial Court apart from the statement of the witness – An order for initiation of process under Section 319 Cr.P.C. against a witness, who has deposed in the trial and has tendered evidence incriminating himself, would be tested on the anvil that whether only such incriminating statement has formed the basis of the order under Section 319 Cr.P.C. – At the same time, mere reference to such statement would not vitiate the order – The test would be as to whether, even if the statement of witness is removed from consideration, whether on the basis of other incriminating material, the Court could have proceeded under Section 319 Cr.P.C. [Paras 22, 23]