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KERALA HIGH COURT
K. Vinod Chandran, Ziyad Rahman A.A., JJ.
Abdul Razak @ Abu Ahmed, S/o. K.P.
Ahmed Kunji – Appellant
Versus
Union of India – Respondent
Crl.MC No. 2917 of 2021
Decided on 25.8.2021
(A) Criminal Procedure Code, 1973 – Sections 315 and 482 – Quashing petition – Maintainability – Invocation of inherent powers of this Court in circumstances of gross injustice caused, amounting to abuse of process of Court is always permissible so as to secure ends of justice – Specific ground on which impugned order is challenged is serious and grave prejudice caused in examining a co-accused as witness, without he being granted pardon and without satisfying conditions of Section 315 of Cr.P.C. – Petition under Section 482 of Cr.P.C. is maintainable. (Para 5)
(B) Constitution of India – Article 20(3) – Right against self-incrimination – Right of an accused against self-incrimination is a right embedded in constitutional mandate of Article 20(3) and one of basic tenets of criminal jurisprudence – Attempt of prosecuting agency could be in their anxiety to see accused punished; against whom serious charges of involving in terrorist activities have been raised – Intention, however bonafide it be, constitutional or statutory protection cannot be overlooked or ignored. (Para 16)
(C) Criminal Procedure Code, 1973 – Sections 306, 307 and 308 – Tender of Pardon – The moment a person in array of accused is permitted to avail benefit of pardon, he ceases to be an accused and would become a witness and would then be perfectly competent – However by virtue of Section 308, status of a witness so attained, would continue, only if he deposes before Court in trial, as a witness in tune with conditions imposed upon him by Section 306 – In case, a person who was granted pardon under said provisions, deposes against prosecution in violation of obligation incurred under Section 306, he would cease to be a witness and he will revert back to status of an accused and would incur additional liability of a prosecution for giving false evidence; on a certificate to that effect issued by Public Prosecutor – There is clear prohibition against using evidence of a person accused of an offence against his co-accused, when he loses his status as a person who availed pardon, when there is breach of terms of pardon. (Paras 16 and 18)
(D) Criminal Procedure Code, 1973 – Section 315 and Sections 306/307 – Accused person to be a competent witness – Section 315 of Cr.P.C. is an enabling provision and also an exceptional one which permits an accused person to be a witness on his own volition, in certain circumstances – Since, permission envisaged under Section 315 is also an exception, culled out from general principles against self-incrimination, it has to be applied strictly in circumstances mentioned therein – A person who is arraigned as an accused in a case, can be examined as a witness against other accused persons, in a trial relating to very same offence (arising from very same cause of action) only in circumstances covered by Sections 306 or 307 – Sections 306 or 307 cannot now be availed since pardon has to be granted before final judgment is passed against person who is sought to be examined – Section 315 also cannot be invoked, even with a request in writing, as additional witness is not being tried and there is no question of his giving evidence in his defence – Additional witness for all these reasons cannot be treated as a competent witness for prosecution. (Paras 21 and 23)
(E) Oaths Act, 1969 – Section 4 (2) – Oaths or affirmations to be made by witnesses, interpreter and jurors – Section 7 of Oaths Act contemplates that omission to take oath as prescribed therein would not invalidate evidence, nor would it affect obligation of witness to depose truth – However it clearly postulates a restriction against administration of oath to an accused in a criminal proceeding except as a defence witness and it clearly is a reiteration of laudable mandate enshrined in Article 20 (3) of Constitution of India and under Section 315 of Cr.P.C. (Para 28)
ORDER
The petitioner herein is the 2nd accused in SC No 2/2018/NIA pending before the Special Court for the Trial of NIA cases, Ernakulam. This Crl M.C challenges Annexure E order, passed by the Special Court allowing an application submitted by the National Investigation Agency (NIA) permitting examination of one Shajahan V.K as an additional witness in the above Sessions Case. According to the petitioner, the additional witness sought to be examined, is a co-accused who was tried and convicted by the NIA Court at New Delhi on the basis of the charge-sheet filed by NIA, New Delhi Unit, based on the very same transactions and is not a competent witness. The accused in a case can be examined as a witness only under Section 315 of the Criminal Procedure Code; the conditions under which are not satisfied in the present case.
2. We heard Sri Vipin Narayan, learned counsel for the petitioner and Sri P. Vijayakumar, the learned Assistant Solicitor General of India.
3. The learned counsel for the petitioner would point out that Annexure E order passed by the Special Court is not legally sustainable. He argues that even going by the pleadings of the prosecuting agency and also on the basis of the findings entered into by the Special Court, the accused as well as the proposed additional witness were being prosecuted for the same offence. According to him, the permission granted to examine Shajahan as an additional witness, is against the basic principles of criminal jurisprudence; that an accused cannot be a witness against himself. That the accused and the witness were prosecuted for the same offence makes the latter an accomplice and his evidence cannot be used against the co-accused unless he is made an approver under Section 306 of Cr.P.C. Further, granting permission to examine such a witness who has been convicted for the very same offence would cause serious prejudice to the defence. The attention of this Court was drawn to Section 315 of Cr.P.C which contemplates the circumstances under which an accused person can be permitted to be examined as a witness. The provision only contemplates an accused person to be a competent witness for defence, to disprove the prosecution case and that too on the request of such accused in writing. The learned counsel relies on Article 20 (3) of the Constitution of India wherein it is stated that no person accused of an offence can be compelled to be a witness against himself which encompasses within its larger ambit, protection from the evidence of an accused being used against the co-accused, unless as specifically enabled under the Cr.P.C. In such circumstances, the learned Counsel prays for setting aside the impugned order and the dismissal of Annexure B application submitted by the prosecution.
4. Per contra, the learned Assistant Solicitor General (ASG) would contend that the contentions raised by the petitioner are not sustainable. The Crl. MC itself is not maintainable as it is an appealable order under section 21 of the National Investigation Agency Act. On merits, the learned ASG contends that, the Special Court has not committed any error by allowing the examination of the additional witness as the same is specifically contemplated under Section 311 of the Cr.P.C. Section 315 of Cr.P.C would not come into play as it deals with the situation, of an ‘accused’ being examined as a defence witness. It is further contended that, the charges levelled against the proposed additional witness by the Delhi Unit of NIA is completely different and under no circumstances he can be treated as a person who is charge sheeted along with the accused person in Annexure A charge sheet. Even if it is assumed that both the cases are arising from the very same transactions, there cannot be any bar against the examination of Shajahan, the proposed additional witness, as he is no longer an accused in the case charge sheeted by the NIA, Delhi Unit, since he now stands convicted by the Special Court at Delhi. U
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