IMPORTANT POINT
For invoking the constitutional right under Article 20(3) a formal accusation against the person claiming the protection must exist.

JUDGMENT

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.

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 persons in a Hotel in the night between 25th and 26th 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 cognizance of the offence and issued process by order dated 2nd 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 High Court dated 26th 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 order dated 5th 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 aggrieved by the aforesaid order filed Criminal Revision Application No.268 of 2000 before the Bombay High Court which by its order dated 27th 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 co