IMPORTANT POINT
An accomplice can be made witness in order to strengthen prosecution case against more serious accused.

ORDER

Crl. Appeal No(s). 939-940 of 2017

On 12th February, 2015, FIR No.9/2015 was registered by the Anti-Corruption Bureau and Economic Offences Wing under the provisions of Indian Penal Code and Prevention of Corruption Act, 1988. The allegation was that huge amount was recovered from possession of accused which was as a result of corruption. The FIR was against 27 persons but after investigation chargesheet was filed against 16 persons. The persons against whom the chargesheet was filed included senior officers of the Chhattisgarh State Civil Supplies Corporation.

2. During investigation, statements of three of the accused mentioned in the FIR, namely, Girish Sharma, Arvind Singh Dhruv and Jeet Ram Yadav, who are appellants before us, were recorded under Sections 161 and 164 Cr.P.C. They were not arrayed as accused but were cited as witnesses in the chargesheet. After the court took cognizance against the accused named in the chargesheet, some of the accused made applications under Section 193/319 Cr.P.C. to summon the above three persons, Girish Sharma, Arvind Singh Dhruv and Jeet Ram Yadav as accused.

3. The trial court rejected the said applications but the matter was carried in revision before the High Court and the High Court allowed the summoning. The reason given by the High Court in the order of summoning is that procedure under Section 306 Cr.P.C. was not followed which was the only procedure available under the Criminal Procedure Code to make an accused a witness, after grant of pardon with Court's permission. The High Court relied upon the version given by the said appellants in their statements under Sections 161 and 164 Cr.P.C. annexed to the chargesheet stating that some amount was found in their possession.

4. In these appeals we have heard Mr. Tushar Mehta, learned Additional Solicitor General appearing for Anti-Corruption Bureau and Mr. Mahesh Jethmalani, learned senior counsel appearing for appellants, Girish Sharma, Arvind Singh Dhruv and Jeet Ram Yadav, who submitted that Section 319 Cr.P.C. was not applicable in the present case. They submitted that the trial court having declined to take cognizance against the appellants, there was no justification for the High Court to have taken cognizance against the said three persons. It was submitted that it was the wisdom of the investigator/prosecutor to avail of the evidence of some of the suspects having regard to the larger purpose of securing conviction of accused against whom there were more serious charges and for this purpose recourse to Section 306 Cr.P.C. was not the only option available. It was also submitted that having regard to the facts of the present case, there was a bona fide decision taken by the prosecution in filing chargesheet only against 16 accused and not against the said three appellants who were proposed to be cited as witnesses as per the chargesheet. Self incriminating statements of the said appellants could not be acted upon against them as the said statements were made as proposed witnesses. It was further submitted that the said three appellants could be separately and subsequently prosecuted in the absence of any immunity granted to them in terms of Section 306 Cr.P.C. In these circumstances, cognizance could not be taken against them merely on account of their being incriminating material without weighing the advantage of having them as witnesses to prove charges against the accused named in the charge sheet which were more serious. Application on behalf of the said accused was intended to scuttle the prosecution case against them which has not been appreciated by the High Court. It was submitted that procedure under Section 306 to seek pardon is not the only course available to rely on the evidence of an accomplice by citing him as witness instead of arraying him as accused. Reliance has been placed on Chandran @ Manichan @ Maniyan v. State of Kerala, (2011) 5 SCC 161.

5. Mr. K.V. Vishwanathan, learned senior counsel appearing for r