Paragraph numbers below are the court’s original numbering, recovered from the source text.
18. In other words, if the privilege made available to a witness under the proviso to Section 132 of the Act is interpreted as a complete immunity, notwithstanding availability of other evidence, it is capable of abuse. In a particular case, a dishonest Investigating officer could cite a person as a witness in the report under Section 173 of the Cr.P.C, being fully aware that there is incriminating material against such person. Similarly, a man complicit of an offence, could very well institute a complaint under Section 200 Cr.P.C., examine himself as ‘IPC’ [2024] 9 S.C.R. Raghuveer Sharan v. District Sahakari Krishi Gramin Vikas Bank & Anr. a witness, make statements incriminating himself and claim immunity from prosecution. It could also be so that an investigating officer, under an honest mistake examines a man complicit of an offence as a witness in the case, the Court upon examining the other evidence, could conclude that the witness was complicit in the offence, the question then would be whether there would be complete bar on the Court to prosecute such witness for the offence on the basis of such other material.
19. The question that would then arise is whether the qualified privilege under the proviso to Section 132 of the Act, grants complete immunity to a person who has deposed as a witness (and made statements incriminating himself), notwithstanding the availability of other material with the prosecution? a. Whether a Court while trying an offence, is barred from initiating process under Section 319 of the Cr.P.C, against a witness in the said proceeding on the basis of other material on record?
20. As noted above, the qualified privilege under the proviso to Section 132 of the Act, 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. Needless to say, that his statement cannot be used for any purpose whatsoever for the purposes of bringing such witness to trial. As such we hold that the qualified privilege under the proviso to Section 132 of the Act does not grant complete immunity from prosecution to a person who has deposed as a witness (and made statements incriminating himself).
21. However, the next question that would arise is what is the course available to a Court, which in the course of trial is confronted with evidence, other than the statement of the witness (against whom incriminating material is available)? Whether the Court can rely upon the statement of the witness for invoking the provisions of Section 319 Cr.P.C? Whether reference to any statement tendered by the witness would vitiate the order under Section 319 Cr.P.C?
22. There cannot be an absolute embargo on the Trial Court to initiate process under Section 319 Cr.P.C., merely because a person, who 372 though appears to be complicit has deposed as a witness. The finding to invoke Section 319 Cr.P.C., 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.
23. An order for initiation of process under Section 319 Cr.P.C against a witness, who has deposed in the trial and has tendered evidence incriminating himself, would be tested on the anvil that whether only such incriminating statement has formed the basis of the order under Section 319 Cr.P.C. At the same time, mere reference to such statement would not vitiate the order. The test would be as to whether, even if the statement of witness is removed from consideration, whether on the basis of other incriminating material, the Court could have proceeded under Section 319 Cr.P.C.
24. In the case at hand, the appellant has been summoned as an additional accused under Section 319 of the Cr.P.C. not only on the basis of his pre-summoning statement but on the basis of the statement of PW-1/Narendra Singh Parmar who was examined as a witness on 31.03.2022. Had the appellant been proposed as an additional accused on the basis of his statement, he would have been summoned immediately after his pre-summoning statement was recorded on 19.03.2016. Thus, the present is a case where the appellant has been summoned as an additional accused on the basis of the statement of PW-1/Narendra Singh Parmar.
25. The proviso to Section 132 offers statutory immunity against self- incrimination providing 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 proceedings except a prosecution for giving false evidence by such answer. Thus, the only protection available is, 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. 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. [2024] 9 S.C.R. Raghuveer Sharan v. District Sahakari Krishi Gramin Vikas Bank & Anr.
26. As earlier stated, R. Dinesh Kumar alias Deena has not examined the issue discussed in the preceding paragraph, therefore, R. Dinesh Kumar alias Deena (supra) is of no assistance to the appellant.
27. Reverting to the issue as to whether there is prima facie material against the appellant for summoning him as an accused in exercise of power under Section 319 Cr.P.C. It is to be seen that in his statement during trial recorded on 31.03.2022, PW-1/Narendra Singh Parmar has categorically stated in para 5 of the examination-in-chief that the interpolations by applying fluid have been made under the initials and signatures of the appellant. Thus, there is prima facie material for exercise of power under Section 319 Cr.P.C.
28. For the foregoing, the criminal appeal deserves to be and is hereby dismissed. CONTEMPT PETITION (C) NO. 508 OF 2024 IN CRIMINAL APPEAL NO(s). 2764 OF 2024 @ SPECIAL LEAVE PETITION (CRL.) NO. 3419 OF 2024.
29. In view of the above judgment passed in Criminal Appeal, the proceedings in this Contempt Petition stand closed and the interim order passed therein is vacated. The Contempt Petition is disposed of. Result of the Case: Appeal dismissed. Contempt petition disposed of. †Headnotes prepared by: Ankit Gyan