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1998 Supreme(Bom) 416
IN THE HIGH COURT OF BOMBAY
(IN THE SPECIAL COURT (TRIAL OF OFFENCES RELATING TO TRANSACTIONS IN SECURITIES) AT BOMBAY)
M.S Rane, J.
Hiten Prasan Dalal others ..... Applicant.
Versus
Abhay Dharmasi Narottam another .... Respondents.
Misc. Application Nos. 358, 359, 360, 361, 362 363 of 1998, in Special Case No. 7 of 1993 ,decided on 31-7-1998.
Advocates appeared :
R.D. Ovalekar in Misc. Application No. 358/1998, for applicant-accused No. 2.
Respondent No. 1-accused No. 3 appearing in person.
V.G. Pradhan in Misc.Appli.No. 358 to 363/1998, for respondent No. 2.
Shirish P. Gupte in Misc. Appli. No. 359/1998, for applicant-accused No. 4.
Amit Desai i/by Malvi Ranchhodas Co. in Misc. Appli. No. 360/1998, for applicant- accu No. 5.
N.K.Thakore, Prakash Naik in Misc.Appli. No. 361/1998,for applicants Nos. 7,8.
Ms. Bhadra N. Dalal in Misc. Application No. 362/1998, for applicant No. 9.
A.A. Bhore in Misc. Application No. 363/1998, for applicant-accused No. 10.
Headnote:Section 315-Scope of-Witness of accused-Where accused was offering himself as witness and prior consent of other co-accused not taken then such consent is not required.-It needs to be stated and emphasized that what Section 315 envisages is that when the accused offers himself to be examined on oath he is treated as witness like any other witness examined in any Criminal trial which implies that he is subject to the rules and regulations as contained in the Evidence Act and as well be applicable to any other witness. It further follows that the Court when it will record the evidence would certainly consider whether any part of evidence is relevant, admissible or otherwise. What is more, the evidence will be led in open Court in the presence of all concerned including the co- accused. The process of adducing of evidence even in the case of the accused when he steps into the witness box as witness will be also subject to the same rules and regulations as applicable to any other witness. Such submission to say the least is wholly unjustified and even not tenable and misconceived too. One cannot launch upon the speculative arena as to what the witness is going to say. True it is that in criminal trial the material in the form of statements of prosecution witnesses are recorded under Section 161 of the Cr PC wherefrom all the concerned including the defence would know as to what the witness is going to say. To that extent such advantage would not be available when the accused steps into the witness box. But legislature has taken care of the same when in the said Section 315 it is clearly provided that the evidence on oath is "in disproof of the charges". The plain reading of the section shows that accused in a criminal trial before the Court has to make application in writing offering himself to be examined as defence witness for himself to disprove charges levelled against him or against any person charged along with him at the same trial. The plain reading of the said section further shows that what is required for availing of the provisions as contained in the said section is (i) that there must be trial in Criminal Court; (ii) person applying to be examined under the provisions of the said section has to be necessarily an accused; (iii) when the stage for invoking the provisions of the said Act had reached i.e. to say after conclusion of recording of the evidence of the prosecution followed by the explanations/statements of the accused as required under Section 313 of the Code is over; (iv) the evidence as such accused may adduce will be on oath and as a witness and lastly (v) such evidence must be "in disproof of the charges made against him or any person charged together with him at the same trial."
Sections 120-B and 409-See Prevention of Corruption Act, 1988, Sections 13(1)(d) and 13(2).
2.Point at issue raised and canvassed arises, in the context of and in the light of provisions as contained in section 315 of Cri.P.C., (hereinafter referred to as Code) its scope, amplitude, meaning, implications and consequences and which section gives the right to the accused of examining himself on oath as a witness for his defence in disproof of the charges made against him or any person charged together with him at the same trial. Applicants-accused have questioned and challenged the said right of the accused No. 3 Abhay Dharmasi Narottam in this case who has by written application opted for exercising his right of examining himself as a witness for the defence in disproof of the charges made against him in this case, asserting that they apprehend that the evidence which accused No. 3 proposes to lead is not in disproof of the charges against him, but he is adducing evidence against the co-accused in this case. This is the principle challenge and bone of contention of the applicants-accused.
3.All these applications are being disposed off with a common order. The above named applicants-accused are the accused in Special Case No. 7 of 1993. The reliefs claimed by the said applicants-accused are common. In that, the above named applicants-accused in their respective applications prayed that accused No. 3- Abhay Dharmasi Narottam in this case be not granted permission to examine himself as a witness for his defence on oath which the said accused No. 3 has sought as provided under section 315 of the Criminal Procedure Code. By and large the grounds for such opposition as contained in all these applications and/or reasons or justifications assigned are similar. Submissions advanced by the Counsel/Advocates of the above respective applicants-accused proceed more or less on identical lines. The provisions of law as also the principles applicable and attracted are also the same. Hence the common order.
4.In all there are twelve accused in this case and they are 1) Mulangi Krishna Swamy Ashokkumar, 2) Hiten Prasan Dalal, Applicant in Misc. Appln. No. 358 of 1998, 3) Abhay Dharmasi Narottam, who has appealed under section 315 of the Code, 4) Bhupen Champaklal Dalal, applicant in Misc. Appln. No. 359 of 1998, 5) Tejkumar Balkrishna Ruia, applicant in Misc. Appln. No. 360 of 1998, 6) Jagdish Pannalal Gandhi, 7) Chandrashekhar Sitaram Raje and 8) Sudhakar Appu Ail, both applicants in Misc. Appln. No. 361 of 1998, 9) Kishan Kantilal Kapadia, applicant in Misc. Appln. No. 362 of 1998, 10) Madhusudan Sakharam Kushte, applicant in Misc. Appln. No. 363 of 1998, 11) Shankar Narayan Ramaswamy and 12) Sarenathan Mohan.
5.The case herein has been brought before this Court in exercise of its jurisdictions under the provisions of Special Court (Trial of Offences Relating to Transactions in Securities) Act, 1992.
6.The accused herein are charged under various offences collectively as well as individually under section 120-B of Indi
