IMPORTANT POINTS
Scope of section 319 and 233 CrPC and section 132, Proviso discussed, explained and applied.
If a witness who is under obligation to state the truth because of the Oath taken by him makes any statement which will criminate or tend to expose such a witness to a "penalty or forfeiture of any kind etc.", the proviso to section 132 of Evidence Act grants immunity to such a witness.

Headnote:(a) Indian Evidence Act, 1872 – Section 132 – A witness cannot be prosecuted on the basis of his evidence in the court. (Para 6)
       (b) Administration of Justice – Judicial propriety – High Court rightly deciding in favour of the witness – However the observations invoking section 120B r/w 302 IPC against the accused uncalled for. (Para 6, 7)
       (c) Code of Criminal Procedure, 1973 – Section 319 r/w section 223(d) – Power of court to "proceed" against any person (other than the accused facing trial) – From the "evidence" it must appear to the Court that such a person "has committed any offence" – And that such a person "could be tried together with the accused" – Persons accused of different offences committed in the course of the same transaction could be tried together with the accused – Instantly, except statement of PW 64 u/s 164 CrPC and his evidence no evidence of involvement of PW 64 in any offence other than u/s 120B – Trying PW 64 along with other accused will not prejudice them in their defence – Rather they have demanded so – However, PW64 is not and accused, he is a witness. (Para 27)
       AIR 1961 SC 1762; AIR 1963 SC 1850 – Relied upon
       (2005) 11 SCC 600; (2000) 1 SCC 285; 2008 Crl. L.J. 1725 – Referred
       AIR 1954 All 501 – Cited with approval
       (d) Indian Evidence Act, 1872 – Section 3 – Evidence – Deposition made by a witness during the course of the trial of a Sessions case – Is evidence. (Para 28)
       (e) Indian Evidence Act, 1872 – Section 132, Proviso; r/w Article 20(3), Constitution of India and section 161 and 25 CrPC – A witness on oath making a statement criminating or tending to expose him to a "penalty or forfeiture" – Proviso to section 132 grants immunity to such a witness – High Court rightly refusing to summon PW 64 as an accused to be tried along with other accused. (Para 46, 47, 48)
       (1968) 2 SCR 624; (1978) 2 SCC 424 – Relied upon
       ILR 3 Mad. 271 – Cited with approval
       Facts of the case:
       The accused in the criminal case facing trial filed an application u/s 319 CrPC to summon PW 64 as additional accused. Trial court dismissed the application.
       The High Court dismissed the revision petition.
       Finding of the Court:
       High Court rightly refused to summon PW64 as an accused to be tried along with other accused.
       Result: Appeal dismissed.

JUDGMENT

Chelameswar, J.

1. Leave granted.

2. One Vijayan @ Vijayakumar was killed on 4th June 2008 in the city of Chennai. It appears from the judgment under appeal that the incident occurred in the following manner:

"At the time of occurrence, the deceased was proceeding in his car. The assailants came in a white Ambassador car, intentionally dashed the said car against the car driven by the deceased. As a result, the car driven by the deceased came to a halt. Some people suddenly emerged and brutally attacked Vijayan @ Vijayakumar and he succumbed to the injuries instantaneously."

3. A case in Crime No.618 of 2008 came to be registered with respect to the said incident at Abiramapuram Police Station, Chennai. A final report came to be filed against seven accused persons of whom the appellant herein is one (A-5). All the seven accused are facing trial in Sessions Case No.73 of 2009 on the file of the Principal Sessions Judge, Chennai. From the judgment [dated 13.11.2014 passed by the High Court of Madras in Crl. R.C. No.425 of 2014] under appeal, it appears:

"The trial Court has framed charges under Sections 147, 148, 302 & 120-B IPC. As many as 71 witnesses were cited in the final report. During trial, already 65 witnesses have been examined on the side of the prosecution and all such witnesses have been cross examined by the counsel appearing for the respective accused, except PW64. PW64 is one Shri L. Venkatesh, the 2nd respondent in this revision petition. After the chief examination of PW64 (the 2nd respondent herein) was over, the petitioner herein filed a petition in Crl.M.P. No.4188 of 2014 under Section 319 of Cr.P.C. seeking to summon the 2nd respondent/PW64 as an additional accused so as to be tried together with the rest of the accused, who are already facing trial. That petition was dismissed by the trial court by order dated 10.03.2014. Challenging the same, the petitioner/A5 is before this court with this criminal revision petition."

4. The factual background in which application under Section 319 of the Code of Criminal Procedure (for short "Cr.P.C.") came to be filed by the appellant herein is as follows:

Some three months after the death of Vijayan the 2nd respondent herein L. Venkatesh (who was examined as PW64 and for the sake of convenience hereinafter referred to as "PW64") was examined by the Police on 11.09.2008 and his statement under Section 161 Cr.P.C. was recorded. Subsequently, on 26.09.2008, his statement was recorded under Section 164 Cr.P.C. by the learned Metropolitan Magistrate, George Town, Chennai. Finally, the second respondent was examined as PW64 in the trial of the abovementioned case. The tenor of all the three statements of PW64 is said to be broadly consistent. (We say so because we have not scrutinized the statements nor we wish to scrutinize the same and record any conclusion as the trial of the criminal case is still pending and it would be inappropriate to record any definite finding at this stage of any matter connected with the said case.) The translated copies of all the three statements of PW64 are placed on record. The substance of the statements is that sometime in November 2007, one Karuna, the second accused had offered to pay PW64 an amount of Rs.5 lakhs if PW64 killed Vijayan. PW64 accepted the proposal. Karuna made an initial payment of Rs.50,000/- to PW64 on his accepting the proposal. Thereafter, PW64 contacted the third accused and disclosed the proposal whereupon the third accused agreed to join PW64. The third accused was paid an amount of Rs.10,000/- by PW64. However, subsequently, PW64 developed cold feet and started maintaining a distance from the second accused Karuna. But according to PW64, the second accused and the third accused were in contact with each other. After coming to know about the murder of Vijayan through newspapers, PW64 contacted the third accused and enquired about the matter upon which the third accused informed PW64 that the third accused along wi

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2015 Supreme(SC) 220

SUPREME COURT OF INDIAJ. Chelameswar, C. Nagappan, JJ.R. Dineshkumar @ Deena – AppellantVersusState Rep. by Inspector of Police & Others – RespondentsCRIMINAL APPEAL NO. 454 OF 2015 (Arising out of SLP (Criminal) No.9928 of 2014)Decided On : 16-03-2015

Cases Referred (7)

SUPREME COURT OF INDIA
J. Chelameswar, C. Nagappan, JJ.
R. Dineshkumar @ Deena – Appellant
Versus
State Rep. by Inspector of Police & Others – Respondents
CRIMINAL APPEAL NO. 454 OF 2015 (Arising out of SLP (Criminal) No.9928 of 2014)
Decided On : 16-03-2015