IMPORTANT POINTS
(1) Immunity against self-incrimination Qualified privilege under proviso to Section 132 of Evidence Act does not grant complete immunity from prosecution to a person who has deposed as a witness and made statements incriminating himself – Only protection available is, a witness cannot be subjected to prosecution on the basis of his own statement.
(2) Summoning of additional accused to face trial – There cannot be absolute embargo on Trial Court to initiate process under Section 319 Cr.P.C., merely because a person, who though appears to be complicit has deposed as a witness.

JUDGMENT :

Prashant Kumar Mishra, J.

CRIMINAL APPEAL NO(s). 2764 OF 2024

1. The appellant seeks to challenge the judgment and order dated 09.11.2023 passed by the High Court of Madhya Pradesh in Criminal Revision No. 1925 of 2023 whereby the High Court has dismissed the appellant’s revision application affirming the order passed by the Special Court MP/MLA) Gwalior on 17.04.2023 in exercise of power under Section 319 of the Code of Criminal Procedure, 1973¹[‘Cr.P.C.’] to summon the appellant as an accused.

2. The facts of the case, briefly stated, are that in the year 1998, one Rajendra Bharti was the President of the complainant/respondent no. 1²[‘respondent bank’] which is now under liquidation. At the relevant time, accused Savitri Shyam (since deceased), (mother of the accused Rajendra Bharti), moved an application on 24.08.1998 for creating a Fixed Deposit of Rs. 10,00,000/- for a period of 3 years with the respondent bank, in her capacity as the President of Shyam Sunder Shyam Sansthan, Datia, Madhya Pradesh. The amount was deposited with the respondent bank vide 2 separate deposits of Rs. 8.5 Lakhs and Rs. 1.5 Lakhs respectively. However, subsequently, these challans were interpolated under the initial of the appellant who was working as the Cashier of the respondent bank at the relevant time. Due to the interpolation, the Fixed Deposit for 3 years was converted to Fixed Deposit for 10 years by committing forgery. In the bank ledger also interpolation and forgery were made by striking off the period of “3 years” to make “15 years” under the initial of the appellant.

3. When the criminal complaint was filed, the appellant was also examined as one of the witnesses of the respondent bank, wherein he admitted having changed the tenure of the Fixed Deposit from 3 years to 10 years and later on to 15 years. This statement of the appellant was recorded at the pre-summoning stage on 19.03.2016. However, subsequently, during trial, PW-1/Narendra Singh Parmar was examined-in- chief on 31.03.2022 wherein he made the statement that it was the appellant who made the interpolation in the Fixed Deposit document.

4. After the statement of PW-1/ Narendra Singh Parmar was recorded, the respondent bank submitted application under Section 319 Cr.P.C. for arraying the appellant and one Rakesh Bharti (brother of Rajendra Bharti) as additional accused.

5. The trial court vide its order dated 17.04.2023 allowed the application partly by summoning the appellant, while rejecting the same qua Rakesh Bharti. Pursuant to the summoning, charges have already been framed against the appellant on 15.06.2023.

6. The trial court’s order dated 17.04.2023 was challenged before the High Court. However, under the impugned judgment and order, the High Court dismissed the criminal revision petition preferred by the appellant.

SUBMISSIONS

7. Mr. Vivek K. Tankha, learned senior counsel appearing for the appellant has argued that the appellant was entitled to the benefit under Section 132 of the Indian Evidence Act, 1872³[‘of the Act’] and he could not be held accountable for the statement made by him. It is also argued that the evidence available on record do not make out any prima facie case against the appellant for summoning him as an accused under Section 319 Cr.P.C. It is further submitted that the power under Section 319 Cr.P.C. can be exercised only in a case when there is prima facie material giving rise to grave suspicion against the person with respect to commission of offence. Reference is made to R. Dinesh Kumar alias Deena v. State represented by Inspector of Police and another, (2015) 7 SCC 497.

8. Per contra, Mr. Saurabh Mishra, learned senior counsel appearing for the respondent bank would argue that since the appellant is made accused on the basis of statement made by PW-1/Narendra Singh Parmar recorded in course of trial on 31.03.2022 and not on the basis of appellant’s pre-summoning statement recorded on 19.03.2016, therefore, Section 132 of the Act,