Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1043 OF 2002
BALASAHEB @ RAMESH LAXMAN
DESHMUKH … APPELLANT
VERSUS
STATE OF MAHARASHTRA & ANR. … RESPONDENTS
J U D G M E N T
CHANDRAMAULI KR. PRASAD, J.
1. The short but important question of law which falls for
our determination in the present appeal is as to whether
protection under Article 20(3) of the Constitution is available
to the appellant, who though not an accused in the police case
in which he has been asked to depose as a witness but figures
as an accused in the complaint case filed later on in relation to
the same incident.
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2. Bereft of unnecessary details, the facts necessary for
determination of the aforesaid question are that informant
Charudatta Pawar is alleged to have been assaulted by four
th th
persons in a Hotel in the night between 25 and 26 of April,
1996 and on the basis of the report given by him CR
No.102/1996 was registered at Chalisgaon Police Station.
During the investigation the appellant figured as a witness and
his statement was recorded under Section 161 of the Code of
Criminal Procedure. After investigation Chalisgaon Police
Station submitted chargesheet against 4 accused persons
named in the first information report on 24.5.1997. The said
case, hereinafter referred to as the police case, is pending for
trial before Judicial Magistrate, First Class, Chalisgaon. In
regard to the same incident which is the subject matter of the
trial in the aforesaid Police case, a complaint was filed
impleading the appellant herein besides five other persons as
accused. Appellant figures as accused No.6 in the complaint
case and according to the allegation he conspired with other
accused in commission of a crime. In this case, hereinafter
referred to as the complaint case the Judicial Magistrate took
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cognizance of the offence and issued process by order dated
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2 February, 1998 against the four accused who were already
chargesheeted in the police case and three other accused
including the appellant herein. By an order of the Bombay
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High Court dated 26 April, 1999 both the criminal cases i.e.
police case and complaint case were directed to be tried and
decided simultaneously. The Bombay High Court further
directed the Magistrate in sesin of the trial to conclude the
trial within stipulated time.
3. The appellant filed an application before the learned
Magistrate in sesin of the Police case objecting his examination
as witness, inter alia, contending that in view of the
Constitutional protection guaranteed under Article 20(3) of the
Constitution of India, he cannot be compelled to be a witness
in the case as he himself is an accused in relation to the same
incident in the complaint case. The learned Magistrate by its
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order dated 5 September, 2000 allowed the application and
observed that the prosecution cannot examine the appellant
as a witness in the Police case. The State of Maharashtra
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aggrieved by the aforesaid order filed Criminal Revision
Application No.268 of 2000 before the Bombay High Court
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which by its order dated 27 April, 2001 allowed the
application and set aside the order of the learned Magistrate,
inter alia, observing that no such blanket protection can be
given to the appellant. Relevant portion of the judgment of the
High Court reads as follows:
“10. To sum up, witness Balasaheb @ Ramesh
Laxman Deshmukh is not an accused in CC NO.
97/96 in spite of accusations against him in the
deposition of complainant Charudatta (Esh.142)
and admission of complainant dated 26.4.1996
(Exh.143) which are pieces of evidence relevant in
C.C.No.3/98, since he is not charged by the charge
framed in that case. Therefore, even if he is
compelled to depose as a witness in C.C. No. 97/96
that can not be said to be compulsion to give
evidence against himself. Moreover, by virtue of
proviso to Section 132 of Indian Evidence Act, he is
protected from use of self incriminating statements
against him, in any other proceeding including C.C.
No.3/98.
The blanket protection granted by Magistrate
vide his order dated 5.9.2000 can do, therefore, be
sustained.”
4. Mr. M.Y. Deshmukh, learned Counsel appearing on
behalf of the appellant contends that the appellant being an
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accused in the complaint case cannot be compelled to give
evidence against himself in the Police case. It is pointed out
that Article 20(3) of the Constitution contemplates that no
person, accused of any offence, shall be compelled to be a
witness against himself. It is emphasised that the appellant
is not an accused in the Police case but in relation to the same
incident in the complaint case he figures as an accused and,
therefore, he is entitled to the protection under Article 20(3) of
the Constitution. In support of the submission reliance has
been placed on a decision of this Court in the case of
Ramanal Bhogilal Shah & Another vs. D.K. Guha &
Others, (1973) 1 SCC 696, and our attention has been
drawn to paragraph 22 of the judgment which reads as
follows:
“22. The Additional Solicitor-General says that
the petitioner had not been specifically named as
accused in the first information report and,
therefore, he is not entitled to the protection under
Article 20(3). We are unable to agree with him in
this respect. The petitioner was the General
Manager of the United Commercial Bank and it was
alleged in the grounds of arrest that the petitioner
was in charge of, or was responsible to the United
Commercial Bank Ltd. for the conduct of the
business of the said Bank, and that he failed to
prove in course of his statements made under
Section 19-F before Shri D.K. Guha, Deputy
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Director of Enforcement that the contravention took
place without his knowledge or that he exercised all
due diligence to prevent the aforesaid contravention,
as required under Section 23-C of the Exchange
Act.”
5. At the first blush we were inclined to accept this
submission but on a deeper scrutiny we find no substance in
it and the decision relied on instead of supporting his case,
goes against him. Protection under Article 20(3) of the
Constitution does not extend to any kind of evidence but only
to self-incriminating statements relating to the charges
brought against an accused. In order to bring the testimony of
an accused within the prohibition of constitutional protection,
it must be of such character that by itself it tend to
incriminate the accused. Appellant is not an accused in the
Police case and in fact a witness, whose statement was
recorded under Article 161 of the Criminal Procedure Code,
and, therefore, not entitled to a blanket protection. However,
in case of trial in the Police case answer to certain question if
tends to incriminate the appellant he can seek protection at
that stage. Whether answer to a question is incriminating or
otherwise has to be considered at the time it is put. Reference
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in this connection can be made to a decision of this Court in
the case of State of Bombay vs. Kathi Kalu Oghad, AIR
1961 SC 1808, wherein it has been held as follows:
“In order that a testimony by an accused
person may be said to have been self-incriminatory
the compulsion of which comes within the
prohibition of the constitutional provision, it must
be of such a character that by itself it should have
the tendency of incriminating the accused, if not
also of actually doing so. In other words, it should
be a statement which makes the case against the
accused person at least probable, considered by
itself.”
6. We are of the opinion that for invoking the constitutional
right under Article 20(3) a formal accusation against the
person claiming the protection must exist. Simply because the
appellant figures as the accused in the complaint case, a
blanket protection as claimed by him cannot be granted.
Reference in this connection can be made to a decision of this
Court in the case of Raja Narayanlal Bansilal v. Maneck
Phiroz Mistry and Another, AIR 1961 SC 29 , wherein it has
been held as follows:
“ The effect of this decision thus appears to be that
one of the essential conditions for invoking the
constitutional guarantee enshrined in Article 20(3)
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is that a formal accusation relating to the
commission of an offence, which would normally
lead to his prosecution, must have been levelled
against the party who is being compelled to give
evidence against himself; and this conclusion, in
our opinion, is fully consistent with the two other
decisions of this Court to which we have already
referred.
7. Referring to the decision of this Court in the case of
Ramanlal Bhogilal Shah (supra), relied on by the appellant,
the same in spite of supporting his case goes against him
which would be evident from the following paragraph of the
said judgment:
“ 24. Although we hold that the petitioner is a
person accused of an offence within the meaning of
Article 20(3), the only protection that Article 20(3)
gives to him is that he cannot be compelled to be a
witness against himself. But this does not mean
that he need not give information regarding matters
which do not tend to incriminate him.
8. Mr. Deshmukh, then contends that the protection under
Article 20(3) goes beyond the complaint case but shall cover
the Police case also because appellant is an accused in
relation to the same incident and the trial is pending in the
said case. Reliance has been placed on a decision of this Court
in the case of Nandini Satpathy vs. P.L. Dani & Another,
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(1978) 2 SCC 424, and our attention has been drawn to
paragraph 57 of the judgment which reads as follows:
“57. We hold that Section 161 enables the police
to examine the accused during investigation. The
prohibitive sweep of Article 20(3) goes back to the
stage of police interrogation — not, as contended,
commencing in court only. In our judgment, the
provisions of Article 20(3) and Section 161(1)
substantially cover the same area, so far as police
investigations are concerned. The ban on self-
accusation and the right to silence, while one
investigation or trial is under way, goes beyond that
case and protects the accused in regard to other
offences pending or imminent, which may deter him
from voluntary disclosure of criminatory matter. We
are disposed to read “compelled testimony” as
evidence procured not merely by physical threats or
violence but by psychic torture, atmospheric
pressure, environmental coercion, tiring
interrogative prolixity, overbearing and intimidatory
methods and the like — not legal penalty for
violation. So, the legal perils following upon refusal
to answer, or answer truthfully, cannot be regarded
as compulsion within the meaning of Article 20(3).
The prospect of prosecution may lead to legal
tension in the exercise of a constitutional right, but
then, a stance of silence is running a calculated
risk. On the other hand, if there is any mode of
pressure, subtle or crude, mental or physical, direct
or indirect, but sufficiently substantial, applied by
the policeman for obtaining information from an
accused strongly suggestive of guilt, it becomes
“compelled testimony”, violative of Article 20(3).”
We do not find any substance in this submission of the
learned Counsel and the decision relied on is clearly
distinguishable.
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9. As observed earlier the appellant is not an accused in the
Police case and in fact a witness whose statement was
recorded during the course of investigation under Section 161
of the Code of Criminal Procedure. In the Police case he
utmost can be asked to support the case of the prosecution
but no question intented to incriminate him can be asked and
in case it is done the protection under Article 20(3) of the
Constitution shall spring into action. What question shall be
put to this appellant when he appears as a witness is a matter
of guess and on that basis he does not deserve the blanket
protection under Article 20(3) of the Constitution. Even at the
cost of the repetition we may observe that in the Police case
when he appears and asked to answer question, the answer
whereof tends to incriminate him, he can refuse to answer the
same pleading protection under Article 20(3) of the
Constitution. In such eventuality the Court would decide the
same. Therefore, at this stage the blanket protection sought
by the appellant is not fit to be granted.
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10. As regards the authority of this Court in the case of
Nandini Satpathy (supra) the same has no bearing in the
facts and circumstances of this case. There the question was
as to whether the protection under Article 20(3) of the
Constitution shall apply at the stage of Police interrogation
and in answer thereto this Court held that it shall go back to
the stage of Police interrogation and not in Court only.
11. As the trial is pending since long, the learned Magistrate
in sesin of the trial shall make endeavour to dispose of the
same expeditiously, preferably within a period of six months
from the date of receipt of a copy of this order.
12. In the result, we do not find any merit in the appeal and
it is dismissed accordingly with the observation aforesaid.
…………………...........................J
[HARJIT SINGH BEDI]
................................................J
[CHANDRAMAULI KR. PRASAD]
NEW DELHI
DECEMBER 7, 2010.