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1998 Supreme(Bom) 417
IN THE HIGH COURT OF 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. Application No. 358, 359, 360, 361, 362 363/1998, for respondent No. 2.
Shirish P. Gupte in Misc. Application No. 359/1998, for applicant-accused No.4.
Amit Desai i/by Malvi Ranchhodas Co. in Misc. Application No. 360/1998, for applicant- accused No. 5.
N.K. Thakore with Prakash Naik in Misc. Application No. 361/1998, for appli cants accused Nos. 7 8.
Ms. Bhadra N. Dalal in Misc. Application No. 362/1998, for the applicant-ac cused No. 9.
A.A. Bhore in Misc. Application No. 363/1998, for applicant-accused No. 10.
Headnote:Sections 161, 243, 313 and 315-See Prevention of Corruption Act, 1988, Sections 13(1)(d) and 13(2).
Section 6-See Prevention of Corruption Act, 1988, Sections 13(1)(d) and 13(2).
Sections 13(1)(d) and 13(2) - Indian Penal Code, Sections 120-B and 409-Criminal Procedure Code, 1973, Sections 161, 243, 313 and 315 - Special Court (Trial of Offences Relating to Transactions) in Securities Act, 1992, Section 6-Security scam- Charges framed-Pleas of accused recorded-Prosecution evidence concluded-State of all accused as required under Section 313, Cr PC also concluded-Application of accused No.3 to examine himself as witness for defence in disproof of charges against him-Challenged by other accused persons ground that accused No.3 may depose adversely against them-Held, apprehension unjustified and misconceived,- The plain reading of the Section 315 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 hill- 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 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.
Now coming to the case in hand it must be stated that the stage when the accused No. 3 had made the application, all these requirements as far as trial in hand is concerned were over and to that extent it may be said that the application made by accused No.3 under Section 315 of the Code is tenable and within the scope and ambit of the said statutory provisions. The Moot contention that prior consent of other co-accused has to be there when accused No. 3 is allowed to lead the evidence, as stated earlier Section 315 does not contemplate or envisage any such fetters or restrictions and, therefore, to accept such arguments would mean to add something which b not in the said statute.
The next it is submitted that since the accused is appearing in person the Court should impose certain restrictions and fetters upon the scope of evidence which he may adduce in this case. Again this is on speculative assumptions that accused No.3 is going to bring in his evidence which may not be admissible and permissible in this case under the Rules of evidence further more, it would be most unjust and unreasonable to circumscribe the statutory right of the accused on the basis of speculation, particularly when, the statute does not provide for the same.
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 I
