Point of law: Law has provided a measure to the prosecution to meet a contingency where the assistance of one or more of the accused is necessitated for ensuring a successful prosecution, and that is the procedure contemplated under section 306 and 307 of Cr.P.C. They are not expected to adopt any other method than contemplated therein, for achieving the said object.

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. Upon h