1. Rule. Learned APP for the respondent no.1 State and learned advocate Mr. Rahul Sharma Page 1 of 51 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Fri Sep 13 2024 Downloaded on : Fri Sep 13 21:40:37 IST 2024 NEUTRAL CITATION R/CR.RA/830/2024 JUDGMENT DATED: 27/08/2024 undefined for respondent no.2 waives service of notice of Rule on behalf of respective parties. By consent, Rule is fixed forthwith.

2. The revisionist is challenging the order passed below Exh.154 dated 06.06.2024 under section 319 of Code of Criminal Procedure (for short ' Cr.P.C .'), moved by him as an accused in Sessions Case No.31 of 2021 in connection with C.R. No.11216011200075 of 2020, registered on 24.03.2020 for the offence punishable under sections 304A and 279 of Indian Penal Code and sections 177 , 184 and 134(b) of Motor Vehicle Act, and thereafter revisionist was chargesheeted under sections 302 and 201 of IPC. The relief prayed was to join the witness who had depose during the trial to be joined as co-accused. Vide order dated 06.06.2024, the prayer was rejected.

3. Mr. A.S. Timbalia, learned advocate for the applicant proposes not to invite any reasons Page 2 of 51 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Fri Sep 13 2024 Downloaded on : Fri Sep 13 21:40:37 IST 2024 NEUTRAL CITATION R/CR.RA/830/2024 JUDGMENT DATED: 27/08/2024 undefined after this Court discloses its mind, but for the purpose of clarity and when the issue raised is of vital importance, this Court considers to deliberate on provisions of law.

4. Advocate Mr. Timbalia submitted that investigating agency has recorded the statement of one witness named Nilesh Mukeshbhai Solanki on 27.03.2022, and the statement of Nilesh Mukeshbhai Solanki disclosed that he had accompanied the present revisionist accused, and that he was in the vehicle, which met with an accident with the deceased, which according to learned advocate Mr. Timbalia, anything could have been planned, and it was duly within the knowledge of said witness, and further he accomplice himself during the crime. Mr. Timbalia submitted that on examination of Nilesh Mukeshbhai Solanki as Prosecution Witness No.11 at Exh.61, as prima facie evidence had come on record that he was equally responsible for the Page 3 of 51 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Fri Sep 13 2024 Downloaded on : Fri Sep 13 21:40:37 IST 2024 NEUTRAL CITATION R/CR.RA/830/2024 JUDGMENT DATED: 27/08/2024 undefined offence, was required to be joined as an accused, thereby applicant had moved the Court under section 319 of the Cr.P.C. to join him as a co- accused, but it came to be rejected. 4.1 Advocate Mr. Timbalia has relied on the judgment of Hardeep Singh Vs. State of Punjab And Others , reported in (2014) 3 SCC 92, stated that this is the much celebrated judgment and the Hon'ble Apex Court has laid down ultimate law for section 319 Cr.P.C. explaining the stage at which the power under section 319 Cr.P.C. can be exercised. The meaning of expression 'evidence' been used in section 319 and the power to be exercised by the Court to invoke the provision of section 319 Cr.P.C., are finally concluded. 4.2 Advocate Mr. Timbalia submitted that the evidence, which comes on record during the course of examination of witness, could be made a basis and if the Court comes to the conclusion that an Page 4 of 51 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Fri Sep 13 2024 Downloaded on : Fri Sep 13 21:40:37 IST 2024 NEUTRAL CITATION R/CR.RA/830/2024 JUDGMENT DATED: 27/08/2024 undefined offence has been committed by the witness, then Court should exercise the power as entrusted, since that would be necessary to build the faith in the judicial system.

4.3 Advocate Mr. Timbalia submitted that the word 'evidence' used in section 319(1) of Cr.P.C. contemplates that the same may not have been put under the test of cross-examination and would fall under section 3 of the Evidence Act, which would mean and include, all statements which the Court permits or requires to be made before it by witnesses in relation to matters of fact under inquiry and trial. Advocate Mr. Timbalia submitted that the offence originally alleged against the present revisionist were under section 304A and 279 of the IPC. Sections 279 and 304A of the IPC, are reproduced hereinunder:

4.4 Advocate Mr. Timbalia stated that the revisionist is charged with the offence of causing death by negligence not amounting to culpable homicide for a rash and negligent driving on a public way to endanger public life, and then chargesheeted under section 302 and 201 Page 6 of 51 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Fri Sep 13 2024 Downloaded on : Fri Sep 13 21:40:37 IST 2024 NEUTRAL CITATION R/CR.RA/830/2024 JUDGMENT DATED: 27/08/2024 undefined of IPC .

4.5 Advocate Mr. Timbalia has referred to the examination-in-chief of witness Nilesh Mukeshbhai Solanki, to submit that he, in his deposition has stated that he along with the present revisionist was in the four wheeler Eicher being Registration No.GJ-01-DY-6324, at Bhadreshwar, and the witness had given information with regard to the deceased. It is alleged that the present revisionist had affixed paper on the number plate and transport name, and it was noted before the Sessions Court that in the morning at about 4 O' Clock, the deceased Dipakbhai Patel was coming from the Mother Dairy. 4.6 Advocate Mr. Timbalia submitted that during recording of evidence, the Public Prosecutor asked the witness as to why his employer had called him at Avkar Hall; the witness failed to answer and, therefore Mr. Timbalia submitted that as per the record the Page 7 of 51 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Fri Sep 13 2024 Downloaded on : Fri Sep 13 21:40:37 IST 2024 NEUTRAL CITATION R/CR.RA/830/2024 JUDGMENT DATED: 27/08/2024 undefined defence insisted to note the said fact on record, hence, the learned Judge has noted the demeanor of the witness.

4.7 Advocate Mr.Timbalia stated that thereafter since the witness had not answered the question put to him by the Public Prosecutor, the same question was put by the Court and the answer was noted in the question and answer form, wherein the Court again asked him as to why his employer had called him at Avkar Hall. To that, the witness replied that he was called there to break both the upper and lower limbs of Dipakbhai Patel.

4.8 Advocate Mr.Timbalia, thus, submitted that this very evidence on record proves the fact that the witness was involved in the crime. The complexity of the witness as an accused was prima facie on record, and the learned Judge on this very evidence ought to have invoked section 319 Cr.P.C.

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NEUTRAL CITATION R/CR.RA/830/2024 JUDGMENT DATED: 27/08/2024 undefined

5. In Hardeep Singh (supra), the Hon'ble Apex Court on section 319 Cr.P.C. had formulated the questions to be answered by the Bench at paragraph 6, which is reproduced hereunder:

power under Section 319 Cr.P.C. can be exercised?

6.2 (ii) Whether the word "evidence" used in Section 319(1) Cr.P.C. could only mean evidence tested by cross-examination or the court can exercise the power under the said provision even on the basis of the statement made in the examination-in-chief of the witness concerned?

comprehensive sense and includes the evidence collected during investigation or the word "evidence" is limited to the evidence recorded during trial?

6.4 (iv) What is the nature of the satisfaction required to invoke the power under Section 319 Cr.P.C. to arraign an accused? Whether the power under Section 319 Cr.P.C. can be exercised only if the court is satisfied that the accused summoned will in all likelihood convicted? 6.5 (v) Does the power under Section 319 Cr.P.C. extend to persons not named in the FIR or named in the FIR but not charged or who have been discharged ?"

Materials coming before the Court in course of such enquiries can be used for corroboration of the evidence recorded in the court after the trial commences, for the exercise of power under Section 319 Cr.P.C., and also to add an accused whose name has been shown in Column 2 of the charge-sheet.

broadly understood and not literally i.e. as evidence brought during a trial.

Question No. (ii) - Whether the word "evidence" used in Section 319 Cr.P.C. could only mean evidence Page 12 of 51 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Fri Sep 13 2024 Downloaded on : Fri Sep 13 21:40:37 IST 2024 NEUTRAL CITATION R/CR.RA/830/2024 JUDGMENT DATED: 27/08/2024 undefined tested by cross-examination or the court can exercise the power under the said provision even on the basis of the statement made in the examination-in-chief of the witness concerned?

Answer 117.4 Considering the fact that under Section 319 Cr.P.C. a person against whom material is disclosed is only summoned to face the trial and in such an event under Section 319(4) Cr.P.C. the proceeding against such person is to commence from the stage of taking of cognizance, the Court need not wait for the evidence against the accused proposed to be summoned to be tested by cross-examination.

Question No. (iv) - What is the nature of the satisfaction required to invoke the power under Section 319 Cr.P.C. to arraign an accused? Whether the power under Section 319 Cr.P.C. can be exercised only if the court is satisfied that the accused summoned will in all likelihood be Page 13 of 51 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Fri Sep 13 2024 Downloaded on : Fri Sep 13 21:40:37 IST 2024 NEUTRAL CITATION R/CR.RA/830/2024 JUDGMENT DATED: 27/08/2024 undefined convicted?

Answer 117.5 Though under Section 319(4)

(b) Cr.P.C . the accused subsequently impleaded is to be treated as if he had been an accused when the Court initially took cognizance of the offence, the degree of satisfaction that will be required for summoning a person under Section 319 Cr.P.C. would be the same as for framing a charge. The difference in the degree of satisfaction for summoning the original accused and a subsequent accused is on account of the fact that the trial may have already commenced against the original accused and it is in the course of such trial that materials are disclosed against the newly summoned accused. Fresh summoning of an accused will result in delay of the trial - therefore the degree of satisfaction for summoning the accused (original and subsequent) has to be different.

Question No.(v) - Does the power under Section 319 Cr.P.C. extend to Page 14 of 51 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Fri Sep 13 2024 Downloaded on : Fri Sep 13 21:40:37 IST 2024 NEUTRAL CITATION R/CR.RA/830/2024 JUDGMENT DATED: 27/08/2024 undefined persons not named in the FIR or named in the FIR but not charge- sheeted or who have been discharged? Answer 117.6 A person not named in the FIR or a person though named in the FIR but has not been charge-sheeted or a person who has been discharged can be summoned under Section 319 Cr.P.C. provided from the evidence it appears that such person can be tried along with the accused already facing trial. However, in so far as an accused who has been discharged is concerned the requirement of Sections 300 and 398 Cr.P.C. has to be complied with before he can be summoned afresh."

6. Per contra, Mr. Rahul Sharma, learned advocate for the respondent no.2 - Nilesh Mukeshbhai Solanki relying on the judgment of R.Dinesh Kumar Alias Deena Vs. State represented by Police & Ors., reported in (2015) 7 SCC 497, stated that the provision of section 319 Cr.P.C. was considered by the Apex Court in the Page 15 of 51 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Fri Sep 13 2024 Downloaded on : Fri Sep 13 21:40:37 IST 2024 NEUTRAL CITATION R/CR.RA/830/2024 JUDGMENT DATED: 27/08/2024 undefined subsequent judgment to observe that the evidence barred under proviso to section 132 of Evidence Act, 1872, cannot be relied upon, to summon a person as additional accused under section 319 Cr.P.C., submitting that it was noted by the Apex Court that to summon an additional accused person twin requirements are to be satisfied.

(i) that from the "evidence" it appears to the court that such person "has committed any offence", and

(ii) that such a person "could be tried together with the accused" already facing trial. 6.1 Advocate Mr. Sharma submitted that the charge-sheet does not invoke the provision of section 120B of the IPC, and stated that the investigating officer initially had filed a case under section 304A and 279 of IPC, and thereafter on the evidence, which had come on record by the statement of the present witness, the case of Page 16 of 51 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Fri Sep 13 2024 Downloaded on : Fri Sep 13 21:40:37 IST 2024 NEUTRAL CITATION R/CR.RA/830/2024 JUDGMENT DATED: 27/08/2024 undefined sections 302 and 201 of IPC could be found against the revisionist and, thereafter, charge- sheet came to be filed accordingly. 6.2 Learned advocate Mr. Sharma referring to the evidence recorded, submitted that the witness was under examination-in-chief by the Public Prosecutor, and when he was asked to answer as to why his employer had called him at Avkar Hall, the witness choose not to answer the said question, and it was only on the insistence of the defence, the Court had insisted the witness to answer the question, which could lead to an incriminating evidence against the said witness. Advocate Mr. Sharma, therefore, submitted that the witness would be protected under section 132 of Evidence Act by way of proviso, submitting that when the witness, who is under oath, is governed by the Oaths Act, 1969 . 6.3 Learned advocate Mr. Sharma stated that when the witness is compelled to give an answer, Page 17 of 51 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Fri Sep 13 2024 Downloaded on : Fri Sep 13 21:40:37 IST 2024 NEUTRAL CITATION R/CR.RA/830/2024 JUDGMENT DATED: 27/08/2024 undefined then that answer shall not subject him to any arrest of prosecution nor can be proved against him in any criminal proceedings, and, thus submitted that section 132 of the Evidence Act, is a cloak to the witness, who is put under compulsion to answer during the course of recording of evidence.

6.4 Advocate Mr. Sharma submitted that section 132 proviso is a necessary corollary of Article 20(3) of the Constitution of India protecting the witnesses from self incrimination, and thereafter further protecting the accused from self incrimination. Mr. Sharma submitted that the witness is under obligation to state the truth and when makes a statement, which incriminate or tend to expose such a witness to a penalty or forfeiture of any kind, the proviso to section 132 of the Evidence Act, 1872 grants immunity to such a witness, and, thus stated that in facts of the case, during the course of Page 18 of 51 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Fri Sep 13 2024 Downloaded on : Fri Sep 13 21:40:37 IST 2024 NEUTRAL CITATION R/CR.RA/830/2024 JUDGMENT DATED: 27/08/2024 undefined examination-in-chief, when the Public Prosecutor had put the question, the witness, had refrain from answering the same, and only on the compulsion imposed by the learned Judge, he had answered, which falls as an incriminating evidence.

7. In R.Dinesh Kumar Alias Deena (supra), the facts of the case was that P.W.64 had given his statement under section 164 Cr.P.C. and that there was no other evidence on record of the Sessions Court to indicate that P.W.64 had committed any offence, while it was urged that the evidence and the statement under section 164 Cr.P.C. of the P.W.64 prima facie indicates a conspiracy to kill a person named Vijayan, and to that conspiracy P.W.64 was a party. Advocate Mr. Sharma submitted that the facts noted shows that he was in a conspiracy at the initial stage and thereafter as noted he developed cold feet and withdrew from the conspiracy and did not Page 19 of 51 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Fri Sep 13 2024 Downloaded on : Fri Sep 13 21:40:37 IST 2024 NEUTRAL CITATION R/CR.RA/830/2024 JUDGMENT DATED: 27/08/2024 undefined participate in the actual killing of Vijayan. The Court was put to examination in that facts of the case, whether the assertion made would be true, and if true, would that legally absolve him of the guilt. The Court did not find it at all concerned with those issues, but took note of the evidence on record as it existed, to indicate as to whether he could be prosecuted for the offence punishable under section 120B IPC. 7.1 In R.Dinesh Kumar Alias Deena (supra), the Hon'ble Apex Court while referring to the Rule of common law embolden under Article 20(3) of the Constitution of India with reference to section 161 Cr.P.C. and section 25 and 26 of Evidence Act, examined the proviso to section 132 of the Evidence Act, dealt with section 8 of the Oaths Act, 1969. The Apex Court examined the proposition whether the prosecution has the liberty to examine any person as a witness in a criminal prosecution notwithstanding that there Page 20 of 51 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Fri Sep 13 2024 Downloaded on : Fri Sep 13 21:40:37 IST 2024 NEUTRAL CITATION R/CR.RA/830/2024 JUDGMENT DATED: 27/08/2024 undefined 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 accused are being tried. The Apex Court noted that the prosecution was not bound to prosecute a person against whom there is some incriminating material if they thought that the evidence of such person would bring other person to book.

8. Advocate Mr. Sharma submitted that witness, Nilesh Mukeshbhai Solanki, was examined by the investigating officer, and on the basis of his statement and other relevant evidence, the charge-sheet against the present revisionist was filed under section 302 IPC. Thus, Advocate Mr. Sharma submitted that the investigating officer, would have to decide the case to bring the real culprit before the Court. Mr. Sharma submitted that initially sections 304A and 279 of IPC was invoked against the revisionist, and only during the course of investigation and on recording of Page 21 of 51 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Fri Sep 13 2024 Downloaded on : Fri Sep 13 21:40:37 IST 2024 NEUTRAL CITATION R/CR.RA/830/2024 JUDGMENT DATED: 27/08/2024 undefined the statement of this witness, the charge under section 302 of IPC could be framed.

9. In R.Dinesh Kumar Alias Deena (supra), the Hon'ble Apex Court has observed in Paras 32, 33, 39, 40 and 44 as under:

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, C.J. opined that the compulsion is not by virtue of an obligation arising under law but imposed by the Judge.

33. On the other hand, both Justice Ayyar and Justice Kernan opined in R.V. Gopal Doss, (ILR) (1881) 3 Mad 271 that the compulsion is the obligation arising out of law, but not the compulsion imposed by the Judge:

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." [emphasis supplied]

39. Dealing with the immunity conferred under Section 132 proviso of the EA, 1872, this court held thus: (Laxmipat Choraria v. State of Page 24 of 51 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Fri Sep 13 2024 Downloaded on : Fri Sep 13 21:40:37 IST 2024 NEUTRAL CITATION R/CR.RA/830/2024 JUDGMENT DATED: 27/08/2024 undefined Maharashtra, AIR 1968 SC 938: 1968 Cri LJ 1124) "7. 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 Page 25 of 51 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Fri Sep 13 2024 Downloaded on : Fri Sep 13 21:40:37 IST 2024 NEUTRAL CITATION R/CR.RA/830/2024 JUDGMENT DATED: 27/08/2024 undefined 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 Page 26 of 51 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Fri Sep 13 2024 Downloaded on : Fri Sep 13 21:40:37 IST 2024 NEUTRAL CITATION R/CR.RA/830/2024 JUDGMENT DATED: 27/08/2024 undefined 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-

40. In substance, this Court in Choraria case ( Laxmipat Choraria v. State of Maharashtra , AIR 1968 SC

938) 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 Page 27 of 51 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Fri Sep 13 2024 Downloaded on : Fri Sep 13 21:40:37 IST 2024 NEUTRAL CITATION R/CR.RA/830/2024 JUDGMENT DATED: 27/08/2024 undefined 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 Page 28 of 51 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Fri Sep 13 2024 Downloaded on : Fri Sep 13 21:40:37 IST 2024 NEUTRAL CITATION R/CR.RA/830/2024 JUDGMENT DATED: 27/08/2024 undefined than an accused in a criminal case.

44. 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."

10. Here, in this case, the accused i.e. revisionist has called upon the Court by filing Exh.154 to invoke the provision of section 319 of the Cr.P.C. The learned Sessions Judge rejecting the application on 06.06.2024 had noted that earlier too Exh.54 of similar nature was filed in the said Sessions Case No.31 of 2021, which was rejected on 21.03.2023. Aggrieved by the said order Criminal Revision Application No.781 of Page 29 of 51 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Fri Sep 13 2024 Downloaded on : Fri Sep 13 21:40:37 IST 2024 NEUTRAL CITATION R/CR.RA/830/2024 JUDGMENT DATED: 27/08/2024 undefined 2023 was filed before the High Court, which came to be withdrawn on 04.01.2024 reserving liberty of filing an appropriate application at appropriate stage. The learned Judge has observed that Exh.45 was moved prior to recording of the evidence of the witness - Nilesh Mukeshbhai Solanki on the statement before the police, and thereafter the evidence came to be recorded at Exh.61. Rejection of Exh.45 was considered as change circumstances, and thereafter on the evidence so recorded at Exh.61, application Exh.154 was moved only on basis of the deposition with the cross-examination being concluded, and statement under section 164 Cr.P.C. of the witness recorded on 12.05.2020. Considering the evidence and the statement, the learned Judge did not deem fit to accept the contention of the defence to accept the allegation of the defence that the witness was involved in the offence.

11. In R.Dinesh Kumar Alias Deena (supra), Page 30 of 51 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Fri Sep 13 2024 Downloaded on : Fri Sep 13 21:40:37 IST 2024 NEUTRAL CITATION R/CR.RA/830/2024 JUDGMENT DATED: 27/08/2024 undefined the liberty of the prosecuting agency to examine a person as a witness against whom there was some material evidence available was examined, to conclude that if the evidence of such a witness would bring the other accused to book, then the prosecution is not bound to prosecute that person. However, the proposition whether the prosecution has the liberty to examine any person as a witness in a criminal prosecution, despite there being same 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 was called for a requirement of deeper examination. 11.1 The Apex Court noted the dissenting opinion in A.R. Antulay v. R.S. Nayak (1988) 2 SCC 602, to consider that 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 Page 31 of 51 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Fri Sep 13 2024 Downloaded on : Fri Sep 13 21:40:37 IST 2024 NEUTRAL CITATION R/CR.RA/830/2024 JUDGMENT DATED: 27/08/2024 undefined 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. The prosecution can enter nolle prosequi against any accused person. It can seek to withdraw a charge against an accused person. The prosecution was not bound to prosecute a person against whom there is some incriminating material if they thought that the evidence of such person would bring the other accused to book.

12. The word "accomplice" has not been defined by the Evidence Act , while section 133 of the India Evidence Act considers an accomplice to be a competent witness against an accused person. Section 133 of the Evidence Act states that conviction is not illegal, merely because it proceeds upon uncorroborated testimony of an accomplice. However, a rider is required to be Page 32 of 51 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Fri Sep 13 2024 Downloaded on : Fri Sep 13 21:40:37 IST 2024 NEUTRAL CITATION R/CR.RA/830/2024 JUDGMENT DATED: 27/08/2024 undefined placed here interpreting section 133 with illustration (b) of section 114 of the Evidence Act, it would be necessary for the Court to satisfy the double test; (1) that the accomplice evidence must be reliable (2) his evidence should be sufficiently corroborated in material particulars.

12.1 An accomplice is a person, who participates in the commission of crime charged against an accused. Primary meaning of accomplice is, any party to the crime charged or a person who aids or abets the commission of crime. Generally, the Court may act on the testimony of one witness, but in some cases, as a matter of law, corroboration would be required. 12.2 When an accomplice is examined as a witness, though if compelled to be answered incriminating questions by the Court he cannot be prosecuted for those answers and can claim the Page 33 of 51 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Fri Sep 13 2024 Downloaded on : Fri Sep 13 21:40:37 IST 2024 NEUTRAL CITATION R/CR.RA/830/2024 JUDGMENT DATED: 27/08/2024 undefined protection under section 132 of the Evidence Act. The protection under the proviso to section 132 of the Evidence is wide enough, even to cover a case, where an accused in a criminal case is a witness in any other proceedings and the testimony that he may give in answer may incriminate him.

12.3 Sections 132 and 133 of the Indian Evidence Act are reproduced hereunder to examine that the Evidence Act though considers an accomplice as a competent witness against an accused person, and when such a witness comes on a trial for a co-accused and when he has to deposed in the Court of law, he shall not be excused from answering any question as to any material relevant to the matter in issue.

132. Witness not excused from answering on the ground that answer will criminate.

A witness shall not be excused from answering any question, as to any Page 34 of 51 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Fri Sep 13 2024 Downloaded on : Fri Sep 13 21:40:37 IST 2024 NEUTRAL CITATION R/CR.RA/830/2024 JUDGMENT DATED: 27/08/2024 undefined 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:

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.

133. Accomplice. An accomplice shall be a competent witness against an accused person; and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice.

12.4 The witness cannot excuse himself on the ground that the answer to such question will criminate or may have the tendency directly or Page 35 of 51 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Fri Sep 13 2024 Downloaded on : Fri Sep 13 21:40:37 IST 2024 NEUTRAL CITATION R/CR.RA/830/2024 JUDGMENT DATED: 27/08/2024 undefined indirectly to criminate him, or that it may expose or tend directly or indirectly to expose to penalty or forfeiture of any kind. Thus, the protection by way of proviso is that he has to give true answer otherwise he could be prosecuted for giving false evidence by such answer. If answer to the question puts him to the vulnerability of incriminating him, in spite of that he would have the immunity of no arrest and no prosecution, nor such answer can be proved against him in any criminal proceeding. 12.5 The expression "shall not be excused"

NEUTRAL CITATION R/CR.RA/830/2024 JUDGMENT DATED: 27/08/2024 undefined

17. R. V. Gopal Doss, (ILR) (1881) 3 Mad 271, was considered by five judges bench of Madras High Court, expression 'compelled' in the proviso to section 132 of Evidence Act was considered as compulsion imposed by the Judge and not by virtue of an obligation arising out law, by Turner C.J., while the dissenting view of J.J., Ayyar and Muttusami Kernan opined that compulsion is the obligation arising out of law, but not the compulsion imposed by the Judge. 17.1 This Court is of the view that the compulsion is the obligation arising out of law under section 148 of Evidence Act, as discussed herein above. The general rule, as prevalent prior, was a witness need not answer any question the tendency of which is to expose the witness to any criminal charge, penalty or forfeiture. The privilege was granted to encourage all persons to come forward with evidence, by protecting themselves. This privilege was repealed in India Page 44 of 51 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Fri Sep 13 2024 Downloaded on : Fri Sep 13 21:40:37 IST 2024 NEUTRAL CITATION R/CR.RA/830/2024 JUDGMENT DATED: 27/08/2024 undefined by section 132 of the Evidence Act. 17.2 The state of law, while the privilege existed, tended, in some cases, to bring about a failure of justice, for the allowance of the excuse, 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 and to obtain evidence which a witness refused to give, the witness was deprived of the privilege of claiming excuse; 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. 17.3 The rule enacted by this section, thus secured; (1) the benefit of the witness's answer to the cause of justice, and (2) the benefit of rule, that no one shall be compelled to criminate Page 45 of 51 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Fri Sep 13 2024 Downloaded on : Fri Sep 13 21:40:37 IST 2024 NEUTRAL CITATION R/CR.RA/830/2024 JUDGMENT DATED: 27/08/2024 undefined himself, to the witness claiming his privilege when a criminal proceeding is instituted against him.

17.4 In view of the imperative language of section 132 of the Evidence Act a witness cannot refuse to answer a question which is relevant to the matter under enquiry in which he is called as a witness even on the pain of self-incrimination. 17.5 The privilege was founded upon the maxim nemo tenetur seipsum prodere, meaning, no one is bound to criminate himself and to place himself in peril. The result of that, the privilege directly and concretely works for ill, for the protection of the guilty.

17.6 The result is that the privilege is withdrawn, as clearly transpires from the language of section 132 of the Evidence Act and the proviso only affords a qualified privilege, in as much as, any such answer which a witness shall be compelled to give under the main part of Page 46 of 51 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Fri Sep 13 2024 Downloaded on : Fri Sep 13 21:40:37 IST 2024 NEUTRAL CITATION R/CR.RA/830/2024 JUDGMENT DATED: 27/08/2024 undefined section 132 shall not 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. 17.7 When an accused person is making a statement under section 313 of the Cr.P.C., he can refuse to answer any question, but as a witness, he is not excused from answering any question as to any matter relevant to the matter in issue.

18. The question now, which would arise is whether the witness, who has been granted privilege under proviso to section 132 of the Act gets himself a complete immunity, despite availability of other evidence to the prosecuting agency to indicate that such a person is also involved in the commission of crime or from the material available from the papers filed by the police after completion of investigation. Page 47 of 51 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Fri Sep 13 2024 Downloaded on : Fri Sep 13 21:40:37 IST 2024

NEUTRAL CITATION R/CR.RA/830/2024 JUDGMENT DATED: 27/08/2024 undefined 18.1 Section 319 Cr.P.C., as has to be remembered is the power to proceed against other persons appearing to be guilty of offence. Relevant portion of section 319(1) reads as under:

18.2 A combined reading of the judgment of Hardeep Singh (supra) with R.Dinesh Kumar Alias Deena (supra), would require an insight to the meaning of the word 'evidence' employed in section 319 Cr.P.C. In Hardeep Singh (supra), the Hon'ble Supreme Court was examining whether the word 'evidence' used in section 319(1) Cr.P.C. would also mean evidence tested in cross- Page 48 of 51 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Fri Sep 13 2024 Downloaded on : Fri Sep 13 21:40:37 IST 2024

NEUTRAL CITATION R/CR.RA/830/2024 JUDGMENT DATED: 27/08/2024 undefined examination, or the Court can exercise the power under the said provision even on the basis of the statement.

18.3 While answering, it was held that cognizance of the offence can be taken against the person not named as an accused, but against whom materials are available in the papers filed by the police after completion of investigation, then the cognizance can be taken under section 193 Cr.P.C. and that the Sessions Judge need not wait till 'evidence' under Section 319 Cr.P.C. becomes available for summoning an additional accused. The Court can use the material, which comes before the Court in the course of enquiries and the Court can then use such materials for corroboration of the evidence recorded in the court after the trial commences, for the exercise of power under Section 319 Cr.P.C., and can also add the accused who has been shown in Column-2 of the charge-sheet.

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NEUTRAL CITATION R/CR.RA/830/2024 JUDGMENT DATED: 27/08/2024 undefined 18.4 It has been noted in Hardeep Singh judgment that the word 'evidence' in section 319 Cr.P.C. has to be broadly interpreted and should not be restricted only to the evidence, which is brought during the trial. It has also been further clarified that the word 'evidence' used in section 319 Cr.P.C. would not mean those tested by way of cross-examination, which would mean, that the Court can invoke the power under section 319 Cr.P.C. on the basis of the evidence, which gets recorded in the examination-in-chief. The statutory immunity which witness can pray is by way of proviso to section 132 of the Evidence Act, as dealt with hereinabove. Any voluntary statement during the course of examination-in- chief can be used for invoking the power under section 319 Cr.P.C. The Court need not wait for the evidence against such accused, proposed to be summoned, to be dealt with only through cross- examination. Thus, the Court, therefore, could Page 50 of 51 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Fri Sep 13 2024 Downloaded on : Fri Sep 13 21:40:37 IST 2024 NEUTRAL CITATION R/CR.RA/830/2024 JUDGMENT DATED: 27/08/2024 undefined decide for invoking the power under section 319 Cr.P.C. observing that if the statement made by the witness, which gives him immunity under the proviso of section 132 of the Evidence Act, is removed from consideration, then whether on the basis of other incriminating material the Court can proceed against the proposed accused.

19. Thus, in view of the reason above, the Revision Application stands rejected. Rule is discharged.

19.1 It is made clear that this Court has only gone into the provision of law in respect to the limited facts of the case, which has come on record, and, therefore the concerned trial Court may not get influenced by any of the other observations made herein, nor this order shall affect the final decision in the Sessions Case.

(GITA GOPI,J) Pankaj Page 51 of 51 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Fri Sep 13 2024 Downloaded on : Fri Sep 13 21:40:37 IST 2024