IMPORTANT POINT
Summoning of additional accused – A prosecution witness cannot be summoned to face trial as additional accused on basis of his own statement.

1. Petitioners Hardev Singh and Kultar Singh have challenged the order passed by the trial Court under Section 319 Cr.P.C. summoning the petitioners as additional accused to face the trial of the case in FIR No.244 of 2004, Police Station C-Division, Amritsar.

2. The first information report in this case was registered on 31.10.2004, the investigation was completed on 18.12.2004 and the charge was framed by the trial Court on 9.2.2005 under Sections 306 and 388 IPC. On the basis of the application filed under Section 319 Cr.P.C. during the pendency of trial, petitioners Hardev Singh and Kultar Singh were ordered to be summoned as additional accused. The trial Court having considered the materials on record including the evidence of petitioner Hardev Singh who was examined as PW24 and DW1 Sarabjit Singh and the FSL reports submitted by the investigating agency decided to summon the petitioners.

3. Learned Single Judge having formulated the following questions of law referred the matter to the Larger Bench for hearing:-

"1. Whether for the purpose of exercising power under Section 319 Cr.P.C, a person who has deposed as prosecution witness can be summoned to face trial as additional accused on the basis of his own statement?

2. Whether such an exercise would be against the provision of Section 132 of the Evidence Act and would amount to self incrimination?

3. Whether trial court was right in placing reliance upon certain deposition of defence witness (DW/1) and the FSL reports while summoning petitioners to face trial?

4. Whether in the facts and circumstances of the case, the summoning order is within the ambit of parameters laid down in Hardeep Singh v. State of Punjab, 2014 (3) SCC 92?"

4. These two revisions which are connected with each other have been listed before us after getting appropriate orders from the Hon'ble the Acting Chief Justice. In the above facts and circumstances, lets us take up jointly first and second questions of law formulated for determination.

5. Learned senior counsel appearing for petitioner Hardev Singh vehemently submitted referring to a decision of Hon'ble Supreme Court in R. Dineshkumar @ Deena v. State Rep. through Inspector of Police and others, 2015(2) RCR (Criminal) 297, that there is no scope for summoning the witness under Section 319 Cr.P.C. based on self-incriminating evidence adduced by him. It is his submission that there is a privileged protection for such a witness from prosecution under Section 132 of the Evidence Act. It is relevant to incorporate the following provision under Section 132 of the Evidence Act:-

"132. Witness not excused from answering on ground that answer will criminate.-A witness shall not be excused from answering any question as to any matter relevant to the matter in issue in any suit or in any civil or criminal proceeding, upon the ground that the answer to such question will criminate, or may tend directly or indirectly to criminate, such witness, or that it will expose, or tend directly or indirectly to expose, such witness to a penalty or forfeiture of any kind:

(Proviso) - Provided that no such answer, which a witness shall be compelled to give, shall subject him to any arrest or prosecution, or be proved against him in any criminal proceeding, except a prosecution for giving false evidence by such answer."

6. Under Section 132 of the Evidence Act a witness shall not be excused from answering as to any question relevant to the matter in issue in any criminal proceeding on the ground that answer to such question will incriminate or may tend directly or indirectly to expose him to a penalty or forfeiture of any kind. No answer given by a witness in terms of the above statutory compulsion would expose him to any arrest or prosecution. It cannot also be proved against him in any criminal proceeding except prosecution for giving a false evidence by such answer. The privilege of refusal to answer by a witness is no longer available in India. That was the reason