Case Note & Summary
The present appeal arose from the refusal by the trial court and the High Court to summon a prosecution witness as an additional accused under Section 319 of the Code of Criminal Procedure, 1973. The background involves the murder of one Vijayan on 4th June 2008, for which seven accused, including the appellant, were facing trial for offences under Sections 147, 148, 302 and 120B of the Indian Penal Code. During the trial, the second respondent, L. Venkatesh, was examined as PW64. His deposition, along with his earlier statements under Sections 161 and 164 Cr.P.C., indicated that he had been approached by the second accused to commit the murder, had accepted a part payment, and later withdrew, but learned that the murder was carried out by others in the conspiracy. Claiming that PW64's own statements established his complicity, the appellant filed an application under Section 319 Cr.P.C. to summon PW64 as an additional accused. The trial court dismissed the application, and the High Court, in revision, upheld the dismissal primarily on the ground that the proviso to Section 132 of the Indian Evidence Act, 1872, protected PW64 from being prosecuted based on his compelled testimony. The High Court held that PW64 could not be summoned as an additional accused solely on the basis of his evidence, though it observed that a separate prosecution might be possible if independent evidence existed. The appellant then approached the Supreme Court. The core legal issue before the Supreme Court was whether the proviso to Section 132 of the Evidence Act barred the court from exercising its power under Section 319 Cr.P.C. to summon a witness as an accused based on that witness's own incriminating testimony. The Court examined the scope of Section 319 Cr.P.C., which empowers a court to proceed against any person not an accused if it appears from the evidence that such person has committed an offence and can be tried together with the already accused. It noted that the expression "could be tried together" is satisfied under Section 223(d) Cr.P.C. when the offence is committed in the same transaction. The Court then interpreted the proviso to Section 132, which states that no answer given by a witness shall subject him to any arrest or prosecution or be proved against him in any criminal proceeding, except for giving false evidence. The Court clarified that this proviso only bars the use of the compelled testimony in a prosecution for giving false evidence and does not confer immunity from prosecution for the offence itself. Consequently, while the trial court cannot use such testimony as evidence in a subsequent trial against the witness, it can certainly look into the statement to form an opinion that the witness appears to have committed an offence, as required under Section 319. The Court also noted that the statement under Section 164 Cr.P.C., though not substantive evidence, could be considered for this limited purpose. In the result, the Supreme Court set aside the High Court's order and directed the trial court to exercise its power under Section 319 Cr.P.C. to summon PW64 as an additional accused and proceed in accordance with law.
Headnote
A) Criminal Procedure - Summoning Additional Accused - Section 319 Cr.P.C. - The court must be satisfied from the evidence that a person not being the accused appears to have committed an offence and can be tried together with the accused. Such joint trial is permissible under Section 223(d) Cr.P.C. if the offence was committed in the same transaction. (Paras 8-10) B) Evidence - Compelled Testimony - Proviso to Section 132, Indian Evidence Act, 1872 - The proviso only protects a witness from being prosecuted for giving false evidence based on compelled testimony; it does not grant immunity from prosecution for the offence disclosed nor does it prohibit the court from using such testimony to form an opinion under Section 319 Cr.P.C. (Paras 11-15) C) Criminal Procedure - Statement Under Section 164 Cr.P.C. - Even if a statement under Section 164 Cr.P.C. is not substantive evidence except to corroborate the maker, the court may look into it for the limited purpose of forming an opinion under Section 319 Cr.P.C., especially when the maker is sought to be summoned, as the bar under Section 132 Evidence Act does not apply. (Paras 16-17) D) Disposition - High Court order set aside; trial court directed to exercise power under Section 319 Cr.P.C. to summon PW64 as additional accused and proceed in accordance with law. (Para 18)
Issue of Consideration
Whether a witness (PW64) can be summoned as an additional accused under Section 319 Cr.P.C. on the basis of his own statements under Section 164 Cr.P.C. and his evidence in court, in light of the proviso to Section 132 of the Indian Evidence Act, 1872.
Final Decision
Appeal allowed; High Court order set aside; trial court directed to exercise power under Section 319 CrPC to summon PW64 as an additional accused and proceed in accordance with law.
Law Points
- Legal points not extracted
- Proviso to Section 132 of Evidence Act
- 1872 does not bar a court from proceeding under Section 319 CrPC against a witness
- The statement of a witness under Section 164 CrPC can be looked into for the limited purpose of forming an opinion under Section 319
- The power under Section 319 CrPC is to be exercised when evidence appears that any person not being the accused has committed an offence and can be tried together with the accused
