Kunhappan vs State of Kerala

K.T. Thomas, J.—The Main question involved in this appeal is whether a if conviction can be based on admission made by in accused as a witness in another case. The lower court found that such as admission can be used to base a conviction. Accordingly the appellant was convicted for the offence under Sec. 7 ('') (a) (ii) of the Essential Commodities Act. He was sentenced of sample improvement for three months and fine of Rs. 1000/-. He is found to have contracted Clause 6 of the Kerala Motor Spirit and High Speed (Diesel oil Maintenance and Regulation of supplies) Order, 1979 (for short the Order) The prosecution case is that appellant is the owner of a workshop called "Gopi Motor Workshop�. When the Sub Inspector of the local Police Station searched the said workshop on 9-3-1984, he found 25 litres of diesel oil kept in two cans. He seized the cans under a search list. As the quantity of diesel oil was in excess of the permitted Limit, the Sub Inspector arrested the appellant and registered a crime against the appellant. Ext P3 is the FIR. After obtaining the certificate of chemical analysis of the sample taken from the cans and after completing the investigation, the case was change sheeted against the appellant. No document evidencing title or ownership of the workshop has been produced. Ext. P8 is the certified copy of the deposition given by the appellant in another criminal case. He was examinedin that case as D W. 1 and the appellant has admitted in that examination that he has a workshop at Knruppamhara by name "Gopi Motor Workshop�. The lower court found that this admission in Ext.P8 is legal evidence which can be used against the maker thereof. Accordingly, the appellant was found guilty of contravention of Clause 6 of the Order.

Neither the prosecution nor the defence has a case that the appellant is a dealer in petroleum products. Clause 6 of the order prohibits a person, other than a dealer, to keep in his ownership, possession or control petroleum products in excess of the maximum limit prescribed by the Commissioner of Civil Supplies. It is admitted by both sides that the Commissioner of Civil Supplies has prescribed the maximum limit as 20 litres. There is no dispute that the two cans seized contained diesel oil. But to prove the ownership of the workshop prosecution heavily rests on Ext.P8 in which there is an admission that the accused is the owner or the workshop. If the said admission cannot be legally used against the maker thereof, the prosecution has no other evidence to prove the ownership or possession of the workshop.

The aforesaid Statement in Ext. P8 amounts to admission as defined in Sec. 17 of the Evidence Act. Sec.21 permits proof of admission as against the person who makes it. Its relevancy as evidence in subsequent judicial proceedings is subject to some restrictions contained in Sec.33. As no such restriction is applicable in this case it is not necessary to consider the relevancy of it. But Sec. 132 has an important permeation in the field of consideration of such an admission in subsequent criminal proceeding. That Section is quoted below:

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.

The Section does not afford protection to a witness who declines to answer a question during examination, merely on the ground that, the answer may expose him to any penalty in a subsequent criminal proceeding. A fear of any such consequence is not a valid excuse from answering any question during examination. But the proviso to the section affords protection to a witness who answers such questions, against criminal proceedings, unless it is a prosecution for perjury. In the Anglo Saxon jurisprudence witness had a privilege from answering certain questions on the ground that such answers would expose them to criminal charges and penalties. The said privilege was founded on the maxim "Nemo Tenetur Seipsum Prodere� which means that no one is bound to criminate himself and to place himself in peril, The privilege in practical operation brought about more ill effects than good. Its pronounced demerit was the protection of the guilty and the consequent derangement of the civic order. Eventually there was clamour for withdrawal of the privilege. Sec. 132 of the Evidence Act came into the statute in the said background. At the same time the deponent should be protected against penalties on the basis of his own deposition which he makes at the instance of somebody else. This is the reason d''etre for inclusion of the proviso in Sec. 132 of the Evidence Act.

It was contended that the proviso is not intended to protect a witness in respect of all answers which he gives, but only such answer which the "witness shall be compelled to give". The contention in other words is that unless there is some material to show that the witness was compelled to give the answers, he cannot seek the umbrage of the proviso. When is a person compelled to give answers during examination as a witness? Can it be said that since all witnesses are bound to give answers to all questions put to him (except where claims privilege under certain provisions of law), there is an element of compulsion always and hence all answers given by him are under the protection? Had that been the intention of the law makers, the words "shall be compelled to give" are redundant. If a witness initially refuses to answer a question on the ground that the answer would expose him to criminal prosecution, the court will not allow him not to answer the question. There is no doubt that such an answer will get the protection envisaged in the proviso. But can it be said, if a witness does not refuse initially to answer any particular question, he is not entitled to claim the protection of the provisio? Any such interpretation is likely to cause hardships to illiterate or inexperienced persons who may not know that they have a right to express disinclination to answer certain questions. When he honestly gives answers to the questions without expressing any hesitation he shall not suffer penal consequences. But the position is slightly different when he offers himself as a witness without being summoned by the court. In such case, it is possible to say, that he can claim protection under the proviso only in respect of those answers which he was asked to give despite his protests or at least initial expression of hesitation.

A voluntary statement made by a witness may stand on different footing. But answers given by witnesses either to questions put by the court or by the counsel on either side, cannot be said to be voluntary statements made by him. It is immaterial whether the witness does not object to the question. Usually ordinary laymen unacquainted with rights and privileges, when examined in court as witnesses, may not raise formal objections against any question. But the answers given by such witness cannot be said to be voluntary statements made by him merely because no objection was taken to the questions. Of course when a party to a civil litigation gives evidence, it is possible to presume that he gives the evidence on his own accord. Similarly if the accused in a criminal case offers himself to be examined as a witness, a presumption may arise that the evidence given by him is voluntary. Such situations cannot be equated with the examination of a witness, whose presence is required by court either by issuance of a summons or by other means.

If a person does not appear in court after being summoned, court can resort to other measures to compel his attendance. Non-attendance in obedience to summons, without valid cause, is an offence punishable under Sec. 174 of the I.P.C. That apart, court can initiate proceedings against him under Sec.350 of the Cr. P. C. in a summary manner, So his attendance in court is not a voluntary act. Though it his duty to attend, he cannot escape from attending the court. Sec. 8 of the oaths Act 1969 enjoins on every person giving evidence to state the truth. If a person refuses to answer any question demanded of him, being legally bound to state the truth, he is liable to be convicted and sentenced as per Sec. 179 of the I. P. C. A reference to the aforesaid provisions shows that the answers given by a witness, whose attendance is required by the court, are under a legal compulsion and hence they cannot be regarded as voluntary.

Tudball, J, in Chatur Singh and Others Vs. Emperor, observed that "although a voluntary statement made by a witness may stand on a different tooting, an answer given by a witness in a criminal case on oath to a question put to him either by the court or by counsel on either side, especially when the question is on a point which is relevant to the case, is within the protection afforded by Section 132 of the Indian Evidence Act, whether or not the witness has objected to the question asked him". A Division Bench of Patna High Courtin Sheo Karan Lal Vs. Bandi Prasad, took the view that Sec. 132 does not require that the witness, before he can claim protection under the proviso, must first ask to be excused from answering the question on the ground that the answer will criminate him. A slightly different view was taken by the Madras High Court in Elavarthi Peddabba Reddi Vs. Iyyala Varada Reddi, and later Division Bench of the Allahabad High Court in Chotkan Vs. State and Others, . The position adopted was that there must be some other compulsion other than the compulsion due to fear of penal consequences under Sec, 179 of the I. P. C, and that a witness who answers questions without seeking protection under Sec. 132 by objecting to the question and requesting to be excused, is not entitled to that protection. The latter is a narrow view in which, the position of illiterate or inexperienced witnesses who do not know their right to object certain questions has not been considered. In this context a reference to the Supreme Court decision in Tukaram G. Gaokar Vs. R.N. Shukla and Others, can be usefully made. It was considered whether the evidence given by the accused as a witness can be termed as evidence out of compulsion as for Art. 20 (3) of the Constitution. A bench of five Judges observed that "it maybe very necessary for the accused person to enter the witness-box for substantiating his defense. But this is no reason for saying that the criminal trial compels him to be a witness against himself and is in violation of Article 20 (3). Compulsion in the context of Article 20(3) must proceed from another person or authority. A person is no compelled to be a witness if he voluntarily gives evidence in his defense"'' (emphasis supplied). It has been observed by the Supreme Court in a later decision ( S. Raghbir Singh Gill Vs. S. Gurcharan Singh Tohra and Others, ) that in view of the imperative language of the Section a witness cannot refuse to answer a question which is relevant to the matter under enquiry in which "he is called as a witness even on the pain of self incrimination".

Though the line of distinction to be drawn as between answers given on compulsion and statements made voluntarily is to be decided on the facts of each case, it will be too broad a proposition to state that unless a witness objects to a question he has no right to seek protection under the proviso to Sec. 132 in respect of the answer given by him, On the facts of this case, the appellant was not a party in the other case in which case he gave the deposition evidenced by Ext. P8. He was examined as defense witness in that case and there is nothing to indicate that he went to court on his own accord. He was on oath and was there-compelled to give evidence. The answer given by him cannot therefore be used against him in a subsequent criminal proceeding as he is entitled to the protection contained in the proviso to Sec. 132 of the Evidence Act.

In the result, I allow this appeal and set aside the conviction and sentence. The appellant is acquitted of the offence and is directed to be set at liberty.