No absolute embargo on trial court to summon a witness as accused: SC

New Delhi: The Supreme Court has said that there cannot be an absolute embargo or blanket immunity to an individual against summoning him as an accused during the trial in a case, merely because he, despite being apparently complicit, has earlier deposed as a witness.

A bench of Justices Prashant Kumar Mishra and Prasanna Bhalachandra Varale held that the qualified privilege under the proviso to Section 132 of the Indian Evidence Act does not grant complete immunity from prosecution to a person who has deposed as a witness (and made statements incriminating himself).

They said if the privilege made available to a witness under the proviso to Section 132 of the Indian Evidence Act is interpreted as complete immunity, notwithstanding availability of other evidence, it is capable of abuse.

In a judgment on September 10, the court said the qualified privilege under the proviso to Section 132, is intended to ensure that all the evidence is placed before the court to reach a just conclusion.

"In our view, 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 in our opinion would be unsustainable," the bench said.

The court pointed out the only protection available is that 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," the bench said.

The court felt if this complete immunity is read under the proviso to Section 132 of the Act, an influential person with the help of a dishonest investigating officer will provide a legal shield to him by examining him as a witness even though his complicity in the offence is writ large on the basis of the material available in the case.

"There cannot be an absolute embargo on the trial court to initiate process under Section 319 CrPC (to summon as accused), merely because a person, who though appears to be complicit has deposed as a witness. The finding to invoke Section 319 CrPC, 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," the bench said.

The bench pointed out the legislative history would reveal that the object of the law is to secure evidence which could not have been obtained. The purpose for granting such a statutory immunity was to enable the court to reach a just conclusion (and thus assisting the process of law).

It is settled that the proviso to Section 132 is a necessary corollary to the principle enshrined under Article 20(3) of the Constitution which confers a fundamental right that “no person accused of any offence shall be compelled to be a witness against himself".

The court dismissed an appeal filed by Raghuveer Sharan against the Madhya Pradesh High Court's judgement which affirmed the order by the Special Court (MP/MLA) to summon him under Section 319 of the Criminal Procedure Code.

The appellant who acted as cashier in a bank allegedly committed forgery by making interpolation in fixed deposit documents. Since he was examined at a pre-summoning stage as a witness, he claimed benefit under Section 132 of the Evidence Act.

The bank said that since the appellant was made an accused on the basis of a statement made by another witness -- Narendra Singh Parmar -- and not on the basis of his pre-summoning statement, therefore, Section 132 of the Act has no application in the facts and circumstances of the case.

Rejecting the argument by the appellant, the court said there is prima facie material for exercise of power under Section 319 CrPC in view of the deposition by another witness, who categorically stated categorically stated that the interpolations -- by applying fluid -- have been made under the initials and signatures of the appellant.