Criminal Revision No.2043 of 2008 (O&M) : 1 : IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: JANUARY 23, 2009. Dr.Naresh Kaushal .....Petitioner VERSUS State of Haryana ....Respondent CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr.R.S.Cheema, Senior Advocate with Mr.K.S.Nalwa, Advocate, for the petitioner. Mr.Yashwinder Singh, AAG, Haryana, for the State. **** RANJIT SINGH, J. Dr.Ashok Kumar, Dr.Naresh Kaushal and A.N.M.Siri Lata stand summoned as additional accused to face trial along with accused Ashwani Kumar for offences punishable under Sections 302 read with Section 120-B IPC. Dr.Naresh Kaushal is the petitioner in Revision No.2043, whereas Dr.Ashok Kumar and Siri Lata are the petitioners in Revision No.1650. Through this order, both the revision petitions are being disposed of. Two Doctors and one Nurse have been summoned as an Criminal Revision No.2043 of 2008 (O&M) : 2 : additional accused on account of death of one Parveen Kumari wife of Ashwani Kumar. The lady allegedly died under suspicious circumstances on 26.3.2006. ASI Dilbag Singh recorded FIR on a statement made by Ajay Kumar, brother of the deceased. ASI Dilbag Singh had also gone to the hospital of Dr.G.D.Sharma at Karnal, where he learnt that the body of late Parveen Kumari had already been taken to Indri. Reaching Indri, ASI Dilbag Singh had recorded the FIR. A perusal of the FIR would show that late Parveen Kumari was married to Ashwani Kumar about 16/17 years ago from the date of incident. As per the allegations, Ashwani Kumar and his elder son Mohit used to maltreat and beat Parveen Kumari and also threatened her in case she disclosed this to her parents. Even the panchayats were convened when Ashwani Kumar had taken Parveen Kumari with him assuring that he would not harass her. The deceased, however, was turned out after few days after giving beatings to her. She was even not being taken for medical examination though she had fallen sick number of times. She was sent to the parents' place, who got an ultrasound examination conducted which revealed that she was having a tumour in her uterus. Doctors were of the opinion that if she was not immediately operated, then the tumour may turn cancerous. When accused Ashwani Kumar was apprised on telephone, he did not show any concern and said that she may die. On intervention by the Panchayat, the lady was sent to her husband, whereafter she was not allowed to come back to her parents house. She even was not allowed to talk on telephone. On 26.3.2006, the complainant-brother received a Criminal Revision No.2043 of 2008 (O&M) : 3 : telephonic message from the neighbour that the condition of Parveen Kumari was serious. Reaching Indri, he found her dead. He accordingly complained that Parveen Kumari has been killed in a very well planned executed conspiracy by accused-husband Ashwani Kumar, his neighbour Ashok Kumar and son Mohit Kumar and that of Dr.Ashok Kumar. The allegation against petitioner Ashok Kumar, as made in the FIR, is that he in connivance with doctor got Parveen Kumari admitted for operation, but Ashwani Kumar did not give any information to the complainant about which they learnt from the neighbours. The complainant accordingly expressed suspicion over Ashwani Kumar, Ashok Kumar and Mohit that they in connivance with doctor got the operation done in wrong manner and had got her killed. Having registered the FIR, ASI Dilbag Singh conducted investigation. Body of Parveen Kumari was sent for post-mortem examination, which was ordered to be conducted by a team of doctors. They reserved their opinion regarding the cause of death awaiting her histopathological and FSL reports. These reports were subsequently received and upon receipt thereof, the doctors opined that Parveen Kumari died due to aluminum Phosphide (Celphos) poisoning. After investigation, only Ashwani Kumar was sent for trial. Other accused persons were placed in column No.2. At the very initial stage of trial, an application was moved under Section 319 Cr.P.C. by the complainant for summoning the three accused persons, whose names were placed in column No.2. The same, however, was dismissed on 9.1.2007. Thereafter, the prosecution evidence was recorded and upon conclusion thereof, Criminal Revision No.2043 of 2008 (O&M) : 4 : another application under Section 319 Cr.P.C. was filed which was also dismissed on 23.3.2008. The trial court then summoned the petitioners as court witnesses through order dated 1.3.2008. After their testimony was recorded, Public Prosecutor made a prayer to summon the petitioners to face trial with Ashwani Kumar alleging that Parveen Kumari was killed in execution of well planned conspiracy by the husband with the petitioners. This time, the court ordered the summoning of the petitioners to face trial along with Ashwani Kumar for an offence under Section 302 read with Section 120-B IPC. The trial court is of the view that prima-facie it is very clear that it is not a case of simple negligence on the part of two doctors and an A.N.M., but a strong case that they were hands in gloves with the main accused Ashwani Kumar in conspiring Ashwani Kumar to kill Parveen Kumari and they successfully executed this conspiracy. Issue of significant constitutional question relating to self- incrimination and compulsion testimony would arise from the manner in which the trial court has decided to summon the petitioners as additional accused. Though the challenge in the petitions is on the merits, but an important question of law would arise in this case regarding the right of the court to summon a person as an additional accused on the basis of evidence given by him or them. On a first blush only, such a course would appear barred in view of the constitutional mandate of Article 20 (3) of the Constitution, which creates a bar for self-incrimination?. This aspect appears to have escaped complete notice of the trial court. By taking into consideration the evidence of two of the petitioners, who were summoned as court witnesses, they have been joined as additional Criminal Revision No.2043 of 2008 (O&M) : 5 : accused. Mr.R.S.Cheema, learned Senior counsel is fully justified in submitting that the order passed by the trial court declining to summon the petitioners after conclusion of prosecution evidence and their summoning subsequently after examining them as witnesses would lead to an irresistible conclusion that the petitioners have been summoned only on the basis of the evidence given by them. Any other view, as per the counsel, would mean that the earlier order declining to summon the petitioners would stand reviewed which course is not legally permissible. The submission made by the State counsel that entire evidence was taken into consideration by the court while summoning the petitioners as additional accused now, in my view, would not lead to change of position in any manner as obviously, the evidence given by the petitioners, who have been summoned, would also is then concededly taken into consideration. This aspect would certainly bring in issue the provisions of Article 20(3) of the Constitution, which says that no person accused of any offence shall be compelled to be a witness against himself. Not only this, Mr.Cheema would contend that when petitioners were summoned as a court witnesses, their testimony coming on record would perforce be compulsive testimony and, thus, a bar in terms of Article 20(3) of the Constitution and if used it would lead to petitioners being compelled to be witnesses against themselves. Could the court rely upon the evidence of the petitioners to summon them as an additional accused would be an important Criminal Revision No.2043 of 2008 (O&M) : 6 : question requiring consideration in this case?. Having regard to the facts and circumstances of the case, the court need not notice the other submissions made on merits, which has led to summoning of the petitioners as if it is found that this evidence cannot be taken into consideration, then it would be enough to set-aside the impugned order without anything more. The submission of the learned senior counsel for the petitioners is that when a witness is summoned to appear before the court, there is implied compulsion for him to answer all the questions addressed to him and the testimony coming on record would be nothing but compulsive testimony. Reference is made to the provisions of Section 132 of the Indian Evidence Act, which clearly provides that the witness is not excused from answering any question on the ground that the question will criminate him. As per Section 132, a witness is not to be excused from answering any question in civil or criminal proceeding, upon the ground that answer to such question, will criminate, or may tend directly or indirectly to criminate, such witness or that he will expose, or tend directly or indirectly to expose, such witness to a penalty or forfeiture of any kind. That being so, the legislature very rightly made a provision as proviso under this Section by laying down 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 for a prosecution for giving false evidence by such answer. Thus, apart from Article 20(3) of the Constitution, Section 132 Evidence Act would also act as a bar for the court to rely upon the evidence given by the petitioners for being used against them or to Criminal Revision No.2043 of 2008 (O&M) : 7 : summon them to face trial as accused persons. In support of his submission, Mr.Cheema would first refer to Laxmipat Choraria and others Vs. State of Maharashtra, AIR 1968 Supreme Court 938. Considering Section 132 of the Evidence Act, the Hon'ble Supreme Court observed:- “Now there can be no doubt that Ethyl Wong was a competent witness. Under S.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 S.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 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 Criminal Revision No.2043 of 2008 (O&M) : 8 : 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.” Thus, Section 132 of the Evidence Act is referred to as a Section which takes away the privilege of a person of refusing to answer and this has been done to ensure that the temptation to tell lie may be avoided and so it was necessary to give this protection in the form of proviso. As observed by the Hon'ble Supreme Court, this protection is further fortified by Article 20(3) of the Constitution which lays down a rule that no person accused of any offence can be compelled to be a witness against himself. The Hon'ble Supreme Court has observed in the case of Laxmipat Choraria supra) that protection by Section 132, proviso of the Indian Evidence Act, would protect a person even if she or he gives evidence incriminating herself or himself. Again in State (Delhi Admn.) v. Jagjit Singh, AIR 1989 Supreme Court 598, the Hon'ble Supreme Court was to observe that a witness is legally bound to answer any question which is relevant to the matter in issue even if the answer to such question is likely to criminate him directly or indirectly. It is further observed that the proviso to Section 132 expressly provides that such an answer which a witness is compelled to give shall not subject him to any arrest or prosecution nor the same can be proved against him in criminal proceeding except a prosecution for giving false evidence for such answer. As observed, the provisions of proviso to Section 132 Criminal Revision No.2043 of 2008 (O&M) : 9 : clearly protect a witness from being prosecuted on the basis of answer given by him in a criminal proceeding which tends to criminate him directly or indirectly. My attention is drawn to Kerala High Court judgment in the case M.P.Gangadharan Vs. State S.I. Of Police, 1989 Crl.L.J.2455, where it is held that answer given by a witness giving evidence in a criminal case cannot be characterised as voluntary and where such answers are criminating him, he would be entitled to protection under the proviso of Section 132 Evidence Act and, therefore, cannot be prosecuted on that basis. While taking this view, the Kerala High Court has referred to number of decisions of different High Courts which had taken some contradictory view. Some of the High Courts took a view that terms of Section 132 could lead to a conclusion that protection is afforded only to answers to which a witness has subjected or has been constrained by the court to give. A view further was that if the witness, being entitled to the privilege, did not claim it but voluntarily answered the question addressed to him, his answer could be used against him in any subsequent proceeding. A view further was that the compulsion in the provision refers to compulsion by court or not compulsion under law. It was, however, held that the witness, of course, need not ask in so many words the protection of the court and that the compulsion may be implied or explicit, and in every case it is a question of fact whether there was or was not an compulsion. (See Paddabba Reddi Vs. Lyyala Yarada Reddi, AIR 1929 Mad 236). Reference here may also be made to Allahabad High Court judgment in the case of Emperor Criminal Revision No.2043 of 2008 (O&M) : 10 : V. Chatur Singh, AIR 1921 All 362, where it was observed that “although a voluntarily statement made by a witness in civil proceedings may stand on a different footing, an answer given by a witness in criminal case on oath to a question put to him either by the court or by the counsel on either side, especially when question is on a point which is relevant to the case, is within the protection afforded by Section 132 of the Indian Evidence Act, whether or not the witness has objected to the question asked to him”. Having referred to all these judgments taking different views, the Kerala High Court in the case of M.P.Gangadharan (supra) referred to the case of State (Delhi Admn). Vs. Jagjit Singh, (supra) to say that the controversy has now been set at rest by this decision. In this case, it is accordingly held by the court as under:- “In a case where a party to a civil litigation gives evidence, it is possible to presume that he gives the evidence on his own accord. Similarly, if the accused in a criminal case offers himself to be examined as a witness, a presumption may arise that the evidence given by him is voluntary. That would not be the position with regard to the evidence given by a witness summoned by the Court. The answer given by a witness in a Court, whose presence is required by the Court either by issuance of summons or by other means cannot be equated with the answer given by a party in a civil litigation or the statement of an accused as a witness, in a criminal case. The answer given by such a witness cannot be characterised as a mere voluntary statement and without Criminal Revision No.2043 of 2008 (O&M) : 11 : any compulsion.” In fact, this was a case where the petitioner therein was summoned as a witness and was examined as DW and while being so examined, he had given answer when it was held that these answers cannot be used against him in subsequent criminal proceedings and he was clearly protected under Section 132 of the Evidence Act. Reference is then made to the case of Paulose and others Vs. State of Kerala, 1990 Crl.L.J. 100. This was also a case where prosecution witness turned hostile, who was made accused under Section 319 Cr.P.C.and convicted without any evidence. The High Court held that by doing so, the prohibition contained in proviso to Section 132 of the Evidence Act stood violated. The relevant observations are as under:- “Either at the time of impleading the sixth accused or even now there is no evidence at all to connect P.W.1 (sixth accused) with the crime even remotely. The trial Judge not only overlooked the requirements of S.319(1), Cr.P.C. But violated the prohibition contained in the proviso to S.132 of the Evidence Act also. The extraordinary power given under S.319(1) in deviation of the normal mode of cognizance is not intended as a punishment to a prosecution witness who turns hostile. If the court is satisfied that he has given false evidence, appropriate action will have to be taken against him. The prosecution had no case and no item of oral or documentary evidence including the testimony of P.W.1 revealed his complicity in the crime. What the Special Criminal Revision No.2043 of 2008 (O&M) : 12 : Judge did was evidently an illegality.” The position that would, thus, emerge is that a person who is summoned as a witness in response to a notice and when appears to give evidence, then that evidence has to be impliedly treated as a compulsive testimony. Section 132 of the Evidence Act would require of him to answer all the questions and give evidence relevant to the issues. He cannot refuse to answer on the ground that it will be self-incriminating as he would have the protection of the proviso under the section. If such a person, who is examined as a witness, is later summoned as an accused by invoking 319 Cr.P.C.or otherwise, then the shield of Article 20(3) of the Constitution would also come to his protection. It is on this principle, the courts have held that immunity is available to an accused person when a compulsory process or a notice is issued, directing him, under pain of penalty, to produce a document, but not when a document is recovered from him by search or seizure. It is quite apparent that protection against self- incrimination under Article 20(3) confines itself to a person accused of an offence and does not include the cases of witnesses. It has also been viewed that privilege under Section 20(3) is in the nature of an option and it can be waived by a person accused of an offence. Thus, the protection is against the compulsion and a statement made voluntarily is not effected by the constitutional inhibition. Section 132 of the Evidence Act seems to operate in slightly different field. The answers given by witness when he is compelled to give, thus, cannot be proved against him in any criminal proceeding, but may not save him for prosecution for offence of perjury. In that way, Article 20(3) is Criminal Revision No.2043 of 2008 (O&M) : 13 : viewed as a narrow in scope than the analogous law in England and America. Let us now proceed to see if the evidence of petitioners Dr.Ashok Kumar and Siri Lata could possibly be utilised for summoning them as accused under Section 319 Cr.P.C. Once these witnesses were summoned as a court witnesses, their evidence has to be treated as a compulsive testimony in view of the judgments noticed above and as such proviso under Section 132 of the Evidence Act would come to their protection for use of this evidence against them. Once they have been made as an accused, again Article 20(3) of the Constitution would provide them a protective shield for use of this evidence, it being a compulsive testimony so far as they are concerned. A view is possible that when the petitioners were summoned as a court witnesses, they were compelled to answer the questions which they could not have refused and as such had impliedly given this evidence being under the protective shield of proviso to Section 132 of the Evidence Act as well as Article 20(3) of the Constitution of India. In fact, these witnesses were also questioned by the court and they accordingly replied which would be another indication about the testimony being compulsive. The trial court, in my view, thus, was not on sound legal footing when it summoned the petitioners on the basis of evidence given by them. As already noticed, twice the attempt of the prosecution to summon the petitioners was declined, one of which was on the conclusion of entire prosecution evidence. It is, thus, obvious that the trial court had declined to summon the petitioners even after conclusion of the entire prosecution evidence and that their summoning now would, Criminal Revision No.2043 of 2008 (O&M) : 14 : thus, only be relatable to the evidence given by the petitioners themselves. There is lot in the submissions of Mr.Cheema when he would point out that the earlier order passed by the trial court cannot be said to be of a nature to invite any objection or criticism and are well considered indicating due application of mind by the court. The action of the trial court in summoning the petitioners now by ignoring the earlier order, thus, would lead to review thereof, if the impugned order is to be considered ignoring the evidence now given by the petitioners. The view in this regard as expressed by the court while declining the prayer of the prosecution to summon the petitioners may need a reference here to highlight this aspect and this is as under:- “I have carefully considered the above arguments of the Learned Public Prosecutor assisted by the Learned counsel for the complainant. It is pertinent to note that the death of Parvin Kumari was caused on account of consumption/administration of phosphide and not on account of any negligence while conducting her operation. So, even if the civil surgeon gave a report about negligence of Dr.Naresh Kaushal nevertheless I feel that there is no prima-facie material for concluding that doctors in conspiracy with accused Ashwani Kumar committed murder of Parvin Kumari. Had the doctors got any intention to commit murder of Parvin Kumari they could have committed her murder by any act of omission/commission during operation. But, since in this case the death was caused by administering/consumption Criminal Revision No.2043 of 2008 (O&M) : 15 : of celphos, therefore, I do not feel that there is prima-facie evidence against Dr.Ashok Kumar and Dr.Naresh Kaushal. It is also significant to note that the complainant Ajay Kumar has himself mentioned in the application under Section 319 Cr.P.C. That there is no direct involvement of the above said persons in the main offences. The Learned counsel for the accused has argued that Mohit Kumar is the real son of the deceased and he is less than 17 years