Statutory Immunity Against Self-Incrimination To A Witness Is Not "Complete & Unfettered": Supreme Court
The Supreme Court has observed that the statutory immunity against self-incrimination to a witness under proviso to Section 132 of the Evidence Act is not “complete and unfettered”.
The Court explained that if the proviso to Section 132 of the Indian Evidence Act, 1872 (the Act) was read to mean “complete immunity,” then a dishonest Investigating Officer would be able to provide a legal shield to an influential person by examining them as a witness even though their complicity in the offence was “writ large” based on the material available in the case.
A Bench of Justice Prashant Kumar Mishra and Justice Prasanna Bhalachandra Varale observed, “The proviso to Section 132 offers statutory immunity against selfincrimination providing 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 proceedings except a prosecution for giving false evidence by such answer. Thus, the only protection available is, a witness cannot be subjected to prosecution on the basis of his own statement. It nowhere provides that there is complete and unfettered immunity to a person even if there is other substantial evidence or material against him proving his prima facie involvement.”
Senior Advocate Vivek K. Tankha represented the appellant, while Senior Advocates Saurabh Mishra, June Chowdhary and Anoop George Chowdhary appeared for the respondents.
The Court upheld the summoning order by the Madhya Pradesh High Court under Section 319 of the CrPC in the alleged forgery and interpolation of a fixed deposit at the District Sahakari Krishi Gramin Vikas Bank (Bank) by the accused who was working as a cashier at the Bank.
The appellant during the pre-summoning stage admitted to having changed the fixed deposit’s tenure. An application under Section 319 of the CrPC was submitted to summon the appellant and another accused. The trial court, however, only framed charges against the appellant.
The appellant argued that he was entitled to the benefit under Section 132 of the Act and he could not be held accountable for the statement made by him at the pre-summoning stage.
The bank on the other hand argued that the appellant was made an accused on the basis of a statement made by a witness recorded during the trial and not on the basis of the appellant’s pre-summoning statement. Therefore, Section 132 of the Act had no application.
The Supreme Court explained that Section 132 of the Act withdrew the “absolute privilege” against Tenetur prodere seipsum and only afforded a “qualified privilege” because in some cases this absolute privilege “tended to bring about a failure of justice, for the allowance of the excuse, particularly when the matter to which the question related was in the knowledge solely of the witness, deprived the court of the information which was essential to its arriving at a right decision.”
“The witness is deprived of the privilege of claiming excuse from testifying altogether; but, while subjecting him to compulsion, the legislature, in order to remove any inducement to falsehood, declared that evidence so obtained should not be used against him, except for the purpose in the Act declared,” the Court clarified.
The Bench stated that the proviso to Section 132 of the Act was an extension of the protection enshrined under Article 20(3) of the Constitution which confers a fundamental right that “no person accused of any offence shall be compelled to be a witness against himself”. Under the constitutional scheme, the right is available only to a person who is accused of an offence, the proviso to Section 132 of the Act, in extension, creates a statutory immunity in favour of a witness who in the process of giving evidence in any suit or in any civil or criminal proceeding makes a statement which criminates himself.
The Court further explained that there cannot be an “absolute embargo” on the Trial Court to initiate process under Section 319 of the Cr.P.C. “merely because a person, who though appears to be complicit has deposed as a witness. The finding to invoke Section 319 Cr.P.C., must be based on the evidence that has come up during the course of Trial.”
Accordingly, the Supreme Court dismissed the appeal.
Cause Title: Raghuveer Sharan v. District Sahakari Krishi Gramin Vikas Bank & Anr. (Neutral Citation: 2024 INSC 681)
Appearance:
Appellant: Senior Advocate Vivek K. Tankha; AOR Kajal Sharma; Advocates Rajiv Bakshi and Vipul Tiwari
Respondents: Senior Advocates Saurabh Mishra, June Chowdhary, and Anoop George Chowdhary; AOR Abhinav Shrivastava and Sarvam Ritam Khare; Advocate Shivang Rawat, Amrita Kumari and Akash Shukla