(Prayer: Criminal Revision Petition filed under Sections 397 and 401 of the Code of Criminal Procedure to set aside the order passed in Crl.M.P.No.4188 of 2014 in S.C.No.73 of 2009, dated 10.03.2014 on the file of the learned Principal Sessions Judge, Chennai.)

1. The petitioner is the Fifth Accused in S.C.No.73 of 2009 on the file of the learned Principal Sessions Judge, Chennai. Altogether, including the petitioner, there are seven accused in the said case. The trial court has framed charges under Sections 147, 148, 302 & 120(B) of IPC. As many as 71 witnesses were cited in the final report. During trial, already, 65 witnesses have been examined on the side of the prosecution and all such witnesses have been cross examined by the counsel appearing for the respective accused, except P.W.64. P.W.64 is one Shri.L.Venkatesh, the 2nd respondent in this revision petition. After the chief examination of P.W.64 [the 2nd respondent herein] was over, the petitioner herein filed a petition in Crl.M.P.No.4188 of 2014 under Section 319 of Cr.P.C. seeking to summon the 2nd respondent/P.W.64 as an additional accused so as to be tried together with the rest of the accused, who are already facing trial. That petition was dismissed by the trial court by order dated 10.03.2014. Challenging the same, the petitioner/A5 is before this court with this criminal revision petition.

2. The said criminal revision petition was admitted on 17.04.2014 and the same came up for hearing before this court on few dates. In the mean while, a petition in Crl.O.P.No.8102 of 2014 was filed by the First Accused – Smt.N.Banu in the said sessions case - challenging the order passed by the trial court in Crl.M.P.No.3937 of 2014 wherein the trial court had allowed the said petition filed by the prosecution thereby permitting the prosecution to examine 11 witnesses in addition, who were not earlier cited as witnesses in the final report. Since both the matters were dealt with by two different Honble Judges, on the note put up by the Registry, the then Honble Acting Chief Justice, by order dated 14.07.2014 had directed to tag Crl.R.C.No.425 of 2014 with Crl.O.P.No.8102 of 2014 and ordered the same to be listed before some other Honble Judge. The matter was accordingly heard by the Honble Judge and on 05.09.2014, the Honble Judge recused himself from these petitions and directed the Registry to place the papers before the Honble Chief Justice for listing the same before some other Judge. While so, Mr.S.Ruban, Advocate, who is the counsel on record for the petitioner in the present Criminal Revision Petition gave a letter to the Honble Chief Justice requesting to list the criminal revision petition before the Honble I Division Bench itself or before any other Division Bench. In the said letter, inter alia, he has stated as follows:-

“.. .. .. On 16.07.2014 both the Revision Petition and the Original Petition came up for hearing before His Lordship Mr.Justice C.T.Selvam. Then after the case was listed on 04.08.2014, 12.08.2014, 13.08.2014, 21.08.2014, 25.08.2014 and arguments were made by all these counsels in-depth on the above said dates by citing several judgments and to the shock and surprise when the case came up for hearing on 05.09.2014. His Lordship was pleased to post the case before some other judge. Which fact cannot be questioned by us.

The accused apprehend that the Defacto-complainant being an influential person is bent on to get the Revision Petition Dismissed is causing the delay of hearing the Revision Petition.

We have a reasonable apprehension that anonymous petitions are sent to the Judges who are hearing the matter.”

3. The Registry accordingly placed the papers before the then Honble Acting Chief Justice including the above letter of the learned Advocate Mr.S.Ruban. The then Honble Acting Chief Justice on 07.10.2014 passed an order directing both the matters to be listed before me as “specially ordered cases”. Thereafter, the same were listed before me for hearing on 30.10.2014 and on that day, at the request of the learned counsel for the petitioner, they were adjourned.

4. In the mean while, Mrs.Sudha Vijayakumar, the wife of the victim filed a miscellaneous petition in M.P.No.2 of 2014 seeking to implead herself as a party in the Criminal Revision Petition. That petition was allowed by order dated 03.11.2014. Accordingly, she was impleaded as 3rd respondent in the revision petition.

5. The brief facts of the case are as follows:-

(i) On 04.06.2008, at about 8.45 p.m. one Mr.Vijayan @ Vijayakumar, the foster son-in-law of late Dr.M.G.Ramachandran, the former Chief Minister of Tamil Nadu was done to death at Turn Bulls Road Extension near ABM Avenue in Chennai city.

(ii) At the time of occurrence, the deceased was proceeding in his car. The assailants came in a white Ambassador car, intentionally dashed the said car against the car driven by the deceased. As a result, the car driven by the deceased came to a halt. Some people suddenly emerged and brutally attacked Vijayan @ Vijayakumar and he succumbed to the injuries instantaneously.

(iii) On the information of one Mr.Senthil Kumar, in respect of the said occurrence, a case in Crime No.618 of 2008 was registered in E-4 Abiramapuram Police Station for offences punishable under Sections 147, 148, 302 r/w 120(B) of I.P.C. Later on, the case was transferred to the first respondent/CBCID.

(iv) During the course of investigation, more than seventy witnesses were examined and several documents were also collected. Finally, the first respondent filed the final report against a total number of seven accused including the petitioner herein who is the fifth accused in the case for alleged offences punishable under Sections 120(B), 120(B) r/w 302, 147, 148, 149, 302, 302 R/w 149 and 506(ii) of I.P.C.

(v) The second respondent Mr.L.Venkatesh was also examined during the course of investigation and his statement was recorded under Section 161 of the Code of Criminal Procedure. His Statement under Section 164 of Cr.P.C. was also recorded by the learned Judicial Magistrate. He was cited as a witnesses on the side of the prosecution in the final report filed. The learned Magistrate before whom the final report was submitted issued summons to the seven accused named in the final report. The case was then committed to the Court of Sessions. The learned Sessions Judge, thereafter took cognizance and proceeded to try the accused.

(vi) During the course of trial, the second respondent herein was examined as P.W.64. In his evidence, he had stated, inter alia, that the second accused Karuna, a police constable, was known to him. He was a professional driver of a mahindra van. During the year 2007, one day, the second accused contacted him and stated that he was in need of a car to undertake a short distance travel. The second respondent arranged for the same. From then onwards, he became very close to the second accused. After sometime, the second respondent had requested the second accused to lend Rs.10,000/-. The second accused told him that presently he had no money and so he could contact him after one week. After sometime, the second accused called the second respondent over telephone and wanted him to come to Santhi Petrol Bunk at Meenambakkam, to discuss about an important matter. Accordingly, he went to the said place. The second accused was lying in wait for him. He told him that there was an important work to be executed and if he could do it, he would give more money. The second accused further told him that one of his friends had a problem with another person and that person should be done away with. When the second respondent asked him as to who the said person was, the second accused told him that he would come to know about it as and when he would be called.

(vii) Thereafter, on one day the second accused wanted him to come to Nandambakkam Police Station and from there the second accused took him in a motor cycle to MGR “Garden” where a car was found parked. The second accused told the second respondent to take note of the said car. He accordingly did. Then the second accused told him that the owner of the said car was one Mr.Vijayan (deceased herein) and the problem for his friend was because of Mr.Vijayan and therefore Mr.Vijayan should be done away with. When the second respondent wanted to know as to how to execute the said task, the second accused told him that Mr.Vijayan used to go for a morning walk everyday and at that time, he could be killed by dashing him by means of a car. The 2nd respondent responded positively. Then the second accused asked the second respondent as to how much amount he was expecting as consideration for the same. The second respondent did not say anything. Then the second accused came forward on his own and told him that he would pay Rs.5,00,000/- for the same. Since it was a great amount, the second respondent was shocked. At once, the second accused gave the second respondent Rs.50,000/- as advance and told him to keep the said amount as advance and after execution of the task, he would pay any amount which might be demanded by the second respondent. Thereafter, the second respondent returned home.

(viii) Four or five days thereafter, the second accused again contacted him and wanted to know from him as to what had happened to the task given to him. The second accused also insisted that the job should be finished without any further delay. The second respondent could not find a way out to execute the said task on his own and therefore he contacted the third accused Mr.Suresh, an electrician by profession. The second respondent took A3 to MGR Garden and identified the car stationed there which belonged to Mr.Vijayan. He gave Rs.10,000/- to the third accused and also told him about the details of the work to be executed. At the instance of the second accused, he also told A3 that if Vijayan were done to death by them, Rs.4,00,000/- would be given to them. Then the second respondent returned home.

(ix) Soon thereafter, the second accused contacted him over phone and wanted to know about the plan. Then the second respondent told the second accused about the fact that he had already taken A3 to MGR Garden and paid him Rs.10,000/- and also assured that he would kill Mr.Vijayan with the help of the third accused. The second accused wanted him to give the telephone number of A3 which the second respondent accordingly did.

(x) But the second respondent did not do anything further to kill Mr.Vijayan because he lacked valour. Thereafter, the second accused did not contact him at all and equally the second respondent also did not contact A2. This went on for four or five months. During that time, he heard that A2 and A3 were in direct contact with each other. When once he asked A3 as to whether he was in contact with A2, he in turn told him that he along with A2 had planned to commit murder of Mr.Vijayan. That time, he warned A3 that in the event Mr.Vijayan was killed, it might take serious turn and put him in trouble. The third accused replied that he would take care of himself in such an event. A3 did not heed to the words of the second respondent. Fifteen days thereafter, the second respondent came to know that Mr.Vijayan had been killed.

(xi) Hearing about the occurrence, when he contacted the third accused over phone, he replied that everything had been finished and therefore there was nothing to talk about the same. When the second respondent asked him as to how he had executed the crime, he told that Vijayans Santro car was dashed by an Ambassador car and after the car came to a halt, the other accused Deena, Karthik and Solomon emerged out of the car, attacked him and killed him as per the plan. He also warned the second respondent not to disclose the same to anybody and in the event the second respondent discloses the same, he would be done away with. The second accused also once called the second respondent over phone and threatened him of dire consequences if he discloses anything about the occurrence to anybody.

(xii) Three months after the occurrence he was examined by the police and his statement was recorded under Section 161 of Cr.P.C.

(xiii) In the statement recorded from him under Section 164 Cr.P.C. also he had made the very same statement.

(xiv) During trial, after completion of the chief examination of the said witness (second respondent) he was not chosen to be cross examined by any of the accused. It was at this juncture, the petitioner (5th accused) filed Crl.M.P.No.4188 of 2014 under Section 319 of Cr.P.C. to summon the second respondent as a co-accused in the case.

(xv) The said petition was dismissed against which the present revision has been filed.

6. I have heard Mr.N.R.Elango, the learned senior counsel appearing for the petitioner, Mr.S.Shanmugavelayutham, learned Public Prosecutor appearing for the State, Mr.R.C.Paul Kanagaraj, learned counsel appearing for the 2nd respondent and the 3rd respondent who has appeared in person. I have also perused the records carefully.

7. The Trial Court has dismissed the said petition relying on Section 132 of the Evidence Act and Article 20(3) of the Constitution of India. According to the Trial Court, evidence of a witness for prosecution cannot be made use of against him to array him as an additional accused under Section 319 of the Cr.P.C. as such evidence of the witness is protected by the proviso to Section 132 of the Evidence Act and Article 20(3) of the Constitution of India. The Trial Court has made reliance on a Judgment of the Honble Supreme Court in State Vs. Jagjit Singh reported in AIR 1989 SC 602, about which I would like to discuss at an appropriate stage in the order.

8. The learned senior counsel appearing for the petitioner would contend that the proviso to Section 132 of the Evidence Act is not at all applicable to the facts of the present case. According to him, if the answer elicited during examination of a prosecution witness is out of compulsion to answer the question, then only the protection under Section 132 of the Evidence Act would be available for such witness. In the case on hand, according to the learned senior counsel, the evidence, which is incriminating in nature, was given by the second respondent voluntarily and therefore, according to him, protection under the proviso to Section 132 of the Evidence Act is not at all available for the second respondent because the testimony is not a compelled testimony.

9. So far as Article 20(3) of the Constitution of India is concerned, according to the learned senior counsel no person accused of any offence shall be compelled to be a witness against himself. But here in this case, the second respondent was not an accused and thus the evidence given by him as a prosecution witness would not fall under the scope of Article 20(3) of the Constitution of India, he contended.

10. The learned Public Prosecutor appearing for the State would vehemently oppose this revision. According to him, the evidence of a prosecution witness cannot be the sole basis to array him as an accused by invoking Section 319 of the Cr.P.C. According to him, anybody can be summoned as an additional accused only on the basis of the evidence of a witness or witnesses other than the person who has been sought to be summoned as an additional accused. He would further submit that if once evidence is given by a prosecution witness on oath during trial, it shall be inferred or presumed that there was compulsion on the witness to answer the question which is likely to incriminate him.

11. He would further submit that a witness who is summoned by the prosecution may or may not be informed about the privileges and the protection under Section 132 of the Evidence Act. He would further submit that if either without knowing the privilege under Section 132 of Cr.P.C. or out of compulsion to answer such a question if a fact is disclosed by him while under examination, that evidence cannot be used against him to array him as an accused as per the protection provided under the proviso to Section 132 of the Evidence Act and Article 20(3) of the Constitution of India.

12. So far as the protection under Article 20(3) of the Constitution of India is concerned, the learned Public Prosecutor would submit that no one can be compelled to be a witness against himself is a salutary fundamental right guaranteed under the Constitution of India, which requires to be strictly enforced in order to safeguard the Fundamental Right of an individual concerned. According to him, a conjoint reading of Article 20(3) of the Constitution of India and the proviso to Section 132 of the Evidence Act would make it clear that any part of the evidence given by a witness which is incriminating in nature cannot be the foundation to prosecute him.

13. The learned Public Prosecutor would further submit that the respondent police has discretion, on completing the investigation, either to cite a person as a witness or to array him as an accused. He would further submit that there is no legal compulsion that such a person should first of all be arrayed as an accused and in order to examine him as a prosecution witness, pardon should be obtained under Section 306 of the Code. It is further contended by the learned Public Prosecutor that simply because the second respondent was not shown as an accused initially, followed by an order of pardon under Section 306 of the Cr.P.C., it cannot be said that he is incompetent to be a prosecution witness. If once he has been so cited as a prosecution witness and examined, his testimony, according to the learned Public Prosecutor, cannot be the basis for prosecuting him.

14. The learned counsel appearing for the second respondent would adopt the arguments of the learned Public Prosecutor and highlight the points elaborately.

15. The 3rd respondent who has appeared in person would only narrate the tale of her sorrows and sufferings on account of the demise of her husband. She would further submit that so far as the conspiracy hatched by the accused 1 to 3 is concerned, the second respondent has got nothing to do with the conspiracy and the actual occurrence. Therefore, according to her, the second respondent has been rightly cited as a prosecution witness as he has got nothing to do with the conspiracy entered between those accused and the actual execution of the crime. Thus, according to her, the lower Court was right in dismissing the petition. She would further submit that only with a view to drag on the proceedings, the said petition was filed before the lower Court.

16. I have considered the above submissions carefully. Before going into the above issues, few legal questions need to be answered. The first question is as to whether the police have got absolute discretion to treat any person either as an accused or as a prosecution witness. In this regard, we may refer to sub-sections (1) and (2) of Section 306 of Cr.P.C. which reads as follows:-

“306. Tender of pardon to accomplice - (1) With a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in or privy to an offence to which this section applies, the Chief Judicial Magistrate or a Metropolitan Magistrate at any stage of the investigation or inquiry into, or the trial of, the offence, and the Magistrate of the first class inquiring into or trying the offence, at any, stage of the inquiry or trial, may tender a pardon to such person on condition of his making a full and true disclosure of the whole of the circumstances within his knowledge relative to the offence and to every other person concerned, whether as principal or abettor, in the commission thereof.

(2) This section applies to —

(a) any offence triable exclusively by the Court of Session or by the Court of a Special Judge appointed under the Criminal Law Amendment Act, 1952 (46 of 1952).

(b) any offence punishable with imprisonment which may extend to seven years or with a more severe sentence.”

17. As has been categorically stated in sub-section (2) of Section 306 of Cr.P.C., so far as the offences triable exclusively by the Court of Sessions are concerned, the police officer has no discretion at all to treat a person, who has got involvement in the crime, as a prosecution witness. If the prosecution wishes to examine a person who has got complicity in the crime as a prosecution witness, it is necessary that he has to approach the Magistrate under Section 306 of Cr.P.C. Thus, ultimately, it is for the learned Magistrate / Court to decide whether the accused concerned should be given a pardon so as to be examined as a prosecution witness. This provision has been made by the law-makers only to ensure that the real culprits in serious offences do not escape without facing the trial at the whims and fancies of the police. A deep reading of the said provision would make it more clear that insofar as the offences, which do not fall under any one of the categories enumerated in sub-section (2) of Section 306 of Cr.P.C. are concerned, of course, the investigating officer has got discretion to array him either as an accused or as a witness. If such a person is omitted from the array of accused in the final report, the Judicial Magistrate, while taking cognizance under Section 190 of Cr.P.C., may very well summon him also as an accused. Assuming that the learned Magistrate while taking cognizance has, by inadvertence, failed to summon him as an accused, Section 319 of Cr.P.C. could be invoked at a latter point of time during trial to summon him as additional accused. But, the noticeable difference is that while summoning an accused under Section 190 of Cr.P.C., the learned Magistrate, taking cognizance, has to rely on the police report and all the other connected records. But, while summoning an additional accused under Section 319 of Cr.P.C., the learned Magistrate or the trial court has to rely only on the evidence recorded during trial [vide Hardeep Singh v. State of Punjab, (2014) 3 SCC 92 [LQ/SC/2014/37] ].

18. On the question whether the evidence as referred to in Section 319 of Cr.P.C. would mean only a full pledged evidence comprising of chief examination, cross examination (if any) and re-examination (if any), there were differences of opinion among the higher judiciary for several decades. There was one view that only after completion of the cross examination by the adverse party, if any, the evidence becomes full-fledged and thereafter only Section 319 of Cr.P.C. could be invoked. The contrary view was that even before the commencement of cross examination, solely based on the chief examination of a witness, Section 319 of Cr.P.C. could be invoked. In order to resolve this conflict, a Constitution Bench of the Honble Supreme Court was constituted in Hardeep Singh v. State of Punjab, (2014) 3 SCC 92 [LQ/SC/2014/37] . In that judgment, the Honble Supreme Court has now laid down the law that it is suffice that chief examination is completed and if it is found from the chief examination of a witness that someone else, who is not facing trial already, is also to be summoned as an additional accused, the court could very well do so. Therefore, in the instant case, though P.W.64 has not been cross examined by the rest of the accused, who are facing the trial, on that ground, the request to summon P.W.64, who is the 2nd respondent in this revision, as an additional accused cannot be denied.

19. The next question is, in the instant case, whether the evidence of the 2nd respondent/P.W.64 during trial can be used against him to summon him as an additional accused. In this regard, we have to first of all examine as to whether the protection under Article 20(3) of the Constitution of India is available in this case for the 2nd respondent or not. Though it was argued by the learned Public Prosecutor that such protection under Article 20(3) of the Constitution of India is available for the 2nd respondent, in my considered opinion, it is not so. It is well settled that a person, who is already an accused, alone shall not be compelled to be a witness against himself. The argument that a person, though not shown as an accused at the time when the statement is made, if he happens to be a potential accused, even then, the protection under Article 20(3) of the Constitution of India will be applicable, was negatived by a Constitution Bench of the Honble supreme Court in State of Bombay v. KathiKalu Oghad, 1962 (3) SCR 10. [LQ/SC/1961/268] The Honble Supreme Court has made it undoubtedly clear that if only the person concerned figures as an accused, he cannot be compelled to make any statement against him, that too in court on oath. Here, in this case, the 2nd respondent/P.W.64 never figured as an accused and, therefore, he has no protection under Article 20(3) of the Constitution of India.

20. Now, the next question is as to whether the alleged offence committed by the 2nd respondent and the offense said to have been committed by the other accused in committing the murder of the deceased Vijayakumar form part of the same transaction. If the offence of conspiracy committed by A2, A3 and the other accused and the actual execution of the murder form part of the same transaction, then only all these accused including the 2nd respondent could be tried together. If it is so held, then, the 2nd respondent is liable to be tried along with the other accused in the present case, undoubtedly, the examination of the 2nd respondent/P.W.64 as a prosecution witness without there being an order of pardon is illegal. But, for any reason, if it is so held that the 2nd respondent/P.W.64 cannot be tried together with the rest of the accused in one and the same trial on the ground that these offences have not been committed in the course of the same transaction, then, there is nothing illegal in examining the 2nd respondent as a witness for the prosecution without pardon under Section 306 of Cr.P.C. In other words, suppose, the trial of A2 and A3 is conducted in respect of the offence of conspiracy, allegedly committed by them along with the 2nd respondent, in that trial, if the 2nd respondent is to be examined as a prosecution witness, certainly, pardon under Section 306 of Cr.P.C. is mandatory and without such pardon, he cannot be examined as a prosecution witness. Thus, the crux of the issue involved in this case is whether the 2nd respondent could be tried together with the rest of the accused in the present trial.

21. For this purpose, let us have a quick look into Section 319 of Cr.P.C. which reads as follows:-

“319. Power to proceed against other persons appearing to be guilty of offence.-

(1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed.

(2) Where such person is not attending the Court he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid.

(3) Any person attending the Court although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed.

(4) Where the Court proceeds against any person under sub-section (1) then —

(a) the proceedings in respect of such person shall be commenced afresh, and witnesses re-heard;

(b) subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced....”

22. Who could be tried together is dealt with in Section 223 of Cr.P.C. which reads as follows:-

“223. What persons may be charged jointly – The following persons may be charged and tried together, namely:—

(a) persons accused of the same offence committed in the course of the same transaction;

(b) persons accused of an offence and persons accused of abetment of, or attempt to commit, such offence;

(c) persons accused of more than one offence of the same kind, within the meaning of section 219 committed by them jointly within the period of twelve months;

(d) persons accused of different offences committed in the course of the same transaction;

(e) persons accused of an offence which includes theft, extortion, cheating, or criminal misappropriation, and persons accused of receiving or retaining, or assisting in the disposal or concealment of, property possession of which is alleged to have been transferred by any such offence committed by the first-named persons, or of abetment of or attempting to commit any such last-named offence;

(f) persons accused of offences under sections 411 and 414 of the Indian Penal Code (45 of 1860) or either of those sections in respect of stolen property the possession of which has been transferred by one offence;

(g) persons accused of any offence under Chapter XII of the Indian Penal Code (45 of 1860) relating to counterfeit coin and persons accused of any other offence under the said Chapter relating to the same coin, or of abetment of or attempting to commit any such offence; and the provisions contained in the former part of this Chapter shall, so far as may be, apply to all such charges:

Provided that where a number of persons are charged with separate offences and such persons do not fall within any of the categories specified in this section, the Magistrate may, if such persons by an application in writing, so desire, and if he is satisfied that such persons would not be prejudicially affected thereby, and it is expedient so to do, try all such persons together.”

23. The learned senior counsel Mr.N.R.Elango would submit that in the instant case, the period of conspiracy was one and the same. According to the case of the prosecution, the conspiracy was between December 2007 and March 2008. The learned senior counsel would therefore submit that the initial conspiracy between A2 and the 2nd respondent/P.W.64 continued and all subsequent conspiracies and all the subsequent events form part of the same transaction.

24. But, according to the learned Public Prosecutor it was not so. His contention is, from the evidence of P.W.64, it is crystal clear that after the conspiracy between A2 and the 2nd respondent/P.W.64 and then, between the 2nd respondent/P.W.64 and A3, there was no continuity of the transaction. According to him, there was a gap of 3 – 4 months, during which, there was no further action taken by any of these accused. He would further submit that after five months, A2 contacted A3 and they hatched a separate conspiracy with the rest of the accused to do away with the deceased and accordingly, it was done. Thus, according to the learned Public Prosecutor, there was no continuity of transaction. Therefore, 2nd respondent/P.W.64 cannot be tried together, he contended.

25. In this regard, I have to refer to the evidence of the 2nd respondent/P.W.64 wherein he has stated that 4 - 5 months after the 2nd conspiracy, when he contacted A3 and enquired as to whether he still continued to be in touch with A2, he told him that they had hatched a separate plan to commit murder of the deceased Vijayakumar. At that juncture, he warned A3 not to go ahead with such a plan because it involved the issue of a big family which might land themin problem. But, A3, in turn, told that the 2nd respondent/P.W.64 need not worry as he would take care of himself. This, in my considered opinion, marks the disjunction between the earlier conspiracies and the subsequent conspiracy.

26. It is also in his evidence that 15 days thereafter he came to know from the news paper reports that Vijayakumar had been done to death. When he again had occasion to speak to A3, he asked A3 as to why he had committed murder of Vijayakumar despite his warning, A3 told him that everything was over and there was nothing to discuss further. He further warned not to disclose it to anybody else. This statement of A3 made to the 2nd respondent/P.W.64 again goes to indicate that there was no connection between the earlier conspiracies committed by A2 and the 2nd respondent/P.W.64 and the 2nd respondent/P.W.64 and A3 and the subsequent conspiracy between A2 and A3 to A7. Therefore, I hold that the conspiracies committed by A2 and the 2nd respondent/P.W.64 and the conspiracy between the 2nd respondent/P.W.64 and A3 have got nothing to do with the subsequent conspiracy hatched between A2, A3 and the rest of the accused. According to the positive case of the prosecution, the murder of Vijayakumar was in execution of the conspiracy hatched between A2, A3 and the rest of the accused and it was not on account of or in execution of the conspiracy hatched between A2 and the 2nd respondent/P.W.64 and the 2nd respondent/P.W.64 and A3.

27. In this regard, the learned Public Prosecutor has relied on the judgment of the Honble Supreme Court in Balbir v. State of Haryana and another, 2000(1) SCC 285. In that case, while dealing with Section 223 of Cr.P.C., in paragraphs 11 to 13, the Honble Supreme Court has held as follows:-

“11. According to Shri D.D. Thakur the case against the appellant and the case against Guria should have been consolidated together for a joint trial. He made on endeavour to show that two cases in respect of the murder of one person could be brought within the ambit of Section 223 of the Code (which corresponds to Section 239 of the old Code of 1898). As per that provision, all persons falling under any one of the seven categories enumerated therein can be charged and tried together. Out of those seven categories enumerated in the section we need not even advert to those categories indicated with placitum (b), (c), (d), (e), (f) of the Section as they are not relevant in this context. We would, therefore, extract clauses (a) and (d) in Section 223 as under:

"223. The following persons may be charged and tried together, namely:-

(a) persons accused of the same offence committed in the course of the same transaction;

(b)-(c) * * * *

(d) persons accused of different offences committed in the course of the same transaction."

In both the aforesaid clauses the primary condition is that persons should have been accused either of the same offence or of different offences "committed in the course of the same transaction". The expression advisedly used is "in the course of the same transaction". That expression is not akin to saying "in respect of the same subject matter" It is pertinent to point out that the same expression is employed in Section 220(1) of the Code also (corresponding to Section 235(1) of the old Code). The meaning of the expression "in the course of the same transaction" used in Section 223 is not materially different from that expression used in Section 223(1). It is so understood by this Court in State of Andhra Pradesh v. Cheemalapati Ganeswara Rao & Anr., [1964] 3 SCR, 297 [LQ/SC/1963/126] . The following observation in the said judgment is contextually quotable:

"The series of acts which constitute a transaction must of necessity be connected with one another and if some of them stand out independently, they would not form part the same transaction but would constitute a different transaction or transactions. Therefore, even if the expression "same transaction" alone had been used in S.235 (1) it would have meant a transaction consisting either of a single act or of a series of connected acts. The expression `same transaction occurring in cls. (a), (c) and (d) of S.239 as well as that occurring in S,235(l) ought to be given the same meaning according to the normal rule of construction of statutes.

12. For several offences to be part of the same transaction, the test which has to be applied is whether they are so related to one another in point of purpose or of cause and effect, or as principal and subsidiary, so as to result in one continuous action. Thus, where there is commonality of purpose or design, where there is continuity of action, then all those persons involved can be accused of the same or different offences "committed in the course of the same transaction,"

13. But if in one case the accused is alleged to have killed a person without any junction with the accused in the other case, then it cannot be treated as the same offence or even different offences "committed in the course of the same transaction". If such two diametrically opposite versions are put to joint trial the confusion which it can cause in the trial would be incalculable. It would then be a mess and then there would be no scope for a fair trial. Hence the attempt to bring the two cases under the umbrella of Section 223 of the Code has only to be foiled as untenable.”

28. A cursory reading of the above judgment would make it very clear that if some of the acts stand out independently, they would not form part of the same transaction, but, it / they would constitute a different transaction or transactions. The Honble Supreme Court had found distinction between the expressions “in the course of the same transaction” and “in respect of the same subject-matter”. Here in this case, the subject-matter of conspiracy between A2 and the 2nd respondent/P.W.64 and then between the 2nd respondent/P.W.64 and A3 and the last conspiracy between A2, A3 and the rest of the accused is one and the same viz., to do away with the deceased Vijayakumar. Though the subject-matter of all these conspiracies is one and the same, these conspiracies were not in the course of the same transaction.

29. Nextly, the learned Public Prosecutor relies on a judgment in M.L.Sharma and others v. Central Bureau of Investigation, 2008 Cri.L.J. 1725, wherein while dealing with an identical situation, the Honble Gauhati High Court, in paragraph 9 has held as follows:-

“9. From the facts as narrated above, what can be safely gathered is that according to the prosecution, the accused involved, in all the cases, are not one and the same. Most importantly, what cannot be ignored is that in each case, the offences of cheating and misappropriation were preceded, according to the prosecution, by a criminal conspiracy. The conspirators, in each of these cases, are not one and the same. When an offence is alleged to have taken place as a result of a criminal conspiracy entered into by a set of accused, such accused cannot be tried along with those accused, who might have entered into another conspiracy for commission of another, though similar, offence. The fact that some of the conspirators, in some of the cases, are same would not make all the conspiracies as conspiracies forming part of the same transaction. This apart, and as has been correctly noted by the learned trial Court, though various contractors were entrusted to do the work of trenching in different parts of the same route and laying of optical fibre cables, the fact remains that there are as many as 12 independent contractors to whom the work has been allotted and it is not the case of the prosecution that all these contractors conspired with each other. For from this, the, contractors are alleged to have entered into different conspiracies with the officers and employees of the Department concerned. In such circumstances, all the acts, alleged to have been done, cannot be said to be have formed part of the same transaction.”

30. From these judgments, it is crystal clear that there is a vast difference between the expression “in respect of the same subject-matter” and “in the course of the same transaction”. Here, again, as I have already concluded, though all the conspiracies relate to the same subject-matter, they do not form part of the same transaction. Therefore, I have no hesitation to hold that in the present case, the 2nd respondent/P.W.64 cannot be tried together with the accused, who are presently facing the prosecution.

31. Now, let us move on to the important question as to whether, the 2nd respondent is protected by the proviso to Section 132 of the Evidence Act. Section 132 of the Evidence Act reads as follows:-

"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.”

32. In order to understand the true import of section 132 of the Evidence Act, we have to make a comprehensive study of Sections 132, 138, 146, 147, 148 and 5 of the Evidence Act. So far as Section 132 of the Evidence Act is concerned, the question dealt with therein is a question asked either during chief examination or during cross examination or during re-examination of a witness. But, in order to compel the witness to answer such question it is necessary that the question should be relevant to the matter in issue in the civil suit or in any civil or criminal proceeding, as the case may be. If the question is not relevant to the matter in issue, the court shall not compel the witness to answer such question. Without any such question being asked, if the witness, on his own, deposes to any fact, which is not relevant to the matter in issue, as provided in Section 5 of the Evidence Act, the court shall not admit the said answer in evidence. Thus, it is crystal clear that if the question is relevant to the matter in issue, the court has no option but to compel the witness to answer though the answer to such question will or may tend directly or indirectly to incriminate him. This compulsion is by the statute itself.

33. Section 138 of the Evidence Act reads as follows:

"138. Order of examinations.-Witnesses shall be first examined-in chief, then (if the adverse party so desires) cross-examined, then ( if the party calling him so desires) re-examined.

The examination and cross-examination must relate to relevant facts but the cross-examination need not be confined to the facts to which the witness testified on his examination-in-chief.

Direction of re-examination.

The re-examination shall be directed to the explanation of matters referred to in cross-examination; and, if new matter is, by permission of the Court, introduced in re-examination, the adverse party may further cross-examine upon that matter."

As stated in para (2) of Section 138 of the Act, cross examination should relate to the relevant facts.

34. Now, turning to Section 146 of the Evidence Act, it speaks of the questions lawful during cross examination which reads as follows:-

146. Questions lawful in cross-examination.- When a witness is cross-examined, he may, in addition to the questions herein before referred to be asked any questions which tend-

(1) to test his veracity.

(2) to discover who he is and what is his position in life, or

(3) to shake his credit, by injuring his character, although the answer to such questions might tend directly or indirectly to criminate him or might expose or tend directly or indirectly to expose him to a penalty or forfeiture.”

Provided that in a prosecution for rape or attempt to commit rape, it shall not be permissible to put questions in the cross-examination of the prosecutrix as to her general immoral character. [Emphasis supplied]

35. In Section 148, the expressions “in addition to the questions herein, before referred to” need to be noticed. This means that in addition to the questions which are relevant as mentioned in para (2) of Section 138 of the Evidence Act, during cross examination, the questions relating to the veracity, his status or credit (as enumerated in Section 146 of the Evidence Act) may also be asked although the answer to such questions might tend directly or indirectly to incriminate him or might expose or tend directly or indirectly to expose him to penalty or forfeiture. Thus, under Section 146 of the Evidence Act, during cross examination, it is lawful to ask questions which may or may not be relevant to the matter in issue for any one or more of the three purposes mentioned in Section 146 of the Evidence Act, although the answer may directly or indirectly incriminate him. These questions falling under Section 146 of the Act relate to the trustworthiness of the witness.

36. When such a question falling under any of the purposes enumerated in Section 146 of the Evidence Act is asked, whether the witness could be compelled to answer the said question, if the question tends to incriminate him is dealt with in Section 147 of the Evidence Act. The said provision reads as follows:-

“147. When witness to be compelled to answer. - If any such question relates to a matter relevant to the suit or proceeding, the provisions of section 132 shall apply thereto.”

37. It is needless to point out that section 147 is connected to Section 146 of the Evidence Act. According to this provision, a witness cannot be compelled during cross examination to answer a question unless the question is relevant to the suit or proceedings, and if such answer, is in the nature of incriminating him in any crime, he is protected under Section 132 of the Evidence Act. Here, the court has no option, but to compel him to answer.

38. Section 148 of the Evidence Act states as to when a witness could be compelled by the court to answer a question which is not relevant to the suit or proceedings. This section also deals only with cross examination. It reads as follows:-

“148. Court to decide when question shall be asked and when witness compelled to answer. - If any such question relates to a matter not relevant to the suit or proceeding, except in so far as it affects the credit of the Witness by injuring his character, the Court shall decide whether or not the witness shall be compelled to answer it, and may, if it thinks fit, warn the witness that he is not obliged to answer it. In exercising its discretion, the Court shall have regard to the following considerations:-

(1) such questions are proper if they are of such a nature that the truth of the imputation conveyed by them would seriously affect the opinion of the Courts as to the credibility of the witness or the matter to which testifies;

(2) such questions are improper if the imputation which they convey relates to matters so remote in time, or of such a character, that the truth of the imputation would not affect, or would affect in a slight degree, the opinion of the Court as to the credibility of the witness on the matter to which he testifies;

(3) such questions are improper if there is a great disproportion between the importance of the imputation made against the witnesss character and the importance of his evidence;

(4) the Court may, if it sees fit, draw, from the witness’s refusal to answer, the inference that the answer if given would be unfavorable.” [Emphasis supplied]

39. As we have already seen, if the question relating to any of the purposes enumerated in Section 146 of the Evidence Act is asked, if the court finds that the same is relevant to the matter in issue, then, the court has no option but to compel the witness to answer the said question and the said incriminating answer is protected by the proviso to Section 132 of the Evidence Act. As per Section 148 of the Evidence Act, if such a question relating to any of the circumstances enumerated in Section 146 of the Evidence Act, except a question which affects the credit of the witness by injuring his character, is asked, and if the court finds that the said question is not relevant to the matter in issue, the court has discretion either to compel him or not to compel him to answer.

40. If the question, though not relevant to the matter in issue, will affect the credit of the witness, by injuring his character, the Court has no option but to compel him to answer and the witness is protected by Section 132 of the Act for such answer. With respect to all the other questions referable to Section 146 of the Act, the Court has discretion either to compel or not to compel the witness to answer the said question. While deciding as to whether to compel the witness to answer such question or not, the court should have regard for the four considerations mentioned in Section 148 of the Evidence Act. If the Court finds that the question is proper as dealt with in consideration No.(1), then the Court shall compel the witness to answer. If the Court finds that the question is improper as dealt with in consideration Nos.(2) & (3), the Court shall not compel him to answer. This compelled testimony is also protected by Section 132 of the Act. If once the court compels the witness to answer such a question, such answer, if it is in the nature of incriminating him, he is protected by the proviso to Section 132 of the Evidence Act. It is a very responsible and delicate task of the Court to assess as to whether a question is proper or improper and accordingly to decide as to whether to compel the witness to answer or not.

41. If the Court does not compel the witness to answer, the Court may warn the witness that he is under no obligation to answer the said question. On the contrary, during the course of cross examination, even after the warning given by the court and without compulsion by the court, if the witness answers the question which is not relevant to the matter in issue, and in the event, the answer is incriminating, he shall not be entitled for the protection under the proviso to Section 132 of the Evidence Act. This only highlights the need for the court to be vigilant while a witness is under cross examination to warn the witness as required under Section 148 of the Evidence Act as and when a question not relevant to the matter in issue is asked as dealt with under Section 148 of the Evidence Act if it is an improper question.

42. As enshrined in clause (4) of Section 148, when the witness is not compelled by the Court, and after warning, if he refuses to answer, the Court may draw an inference that the answer if given would be unfavourable to him. This is analogous to illustration (h) to Section 114 of the Act which states that a man refuses to answer a question, which he is not compelled to answer by law, the presumption may be that the answer if given, would be unfavourable to him. This presumption is also rebutable.

43. Post Constitution, the Honble Supreme Court had occasion to consider the scope of Section 132 of the Evidence Act in Laxmipat Chooraria and others v. State of Maharashtra, AIR 1968 SC 938 [LQ/SC/1967/377] : 1968 Crl.L.J. 1134. Admittedly, that was a case which did not fall under any of the categories of the cases enumerated in Section 306 of Cr.P.C. In that case, the prosecution was under Section 120-B of IPC and Section 167(81) of The Sea Customs Act. One of the witnesses examined in that case was by name Ethyl Wong. The main argument before the Honble Supreme court was that no oath could be administered to the said witness as she was an accused person and Section 5 of the Indian Oaths Act bars such a course. The other contention was that she should have been tried together along with the other accused and she should not have been examined as a prosecution witness. Thus, the plea before the Honble Supreme Court was to eschew her evidence from consideration. The Honble Supreme Court negatived the said plea. The Honble Supreme Court held that a person, who voluntarily answers questions from the witness box, waives the privilege which is against being compelled to be a witness against himself, because he was then not a witness against himself but against others. The Honble Supreme Court had to further hold that section 132 of the Evidence Act sufficiently protects him since his testimony does not go against himself. In para 7, the Honble Supreme Court has held as follows:-

“Now there can be no doubt that Ethyl Wong was a competent witness. Under S. 118 of the Indian Evidence Act all persons are competent to testify unless the court considers that they are prevented from understanding the questions put to them for reasons indicated in that section. Under S. 132 a witness shall not be excused from answering any question as to any matter relevant to the matter in issue in any criminal proceeding (among others) upon the ground that the answer to such question will incriminate or may tend directly or indirectly to expose him to a penalty or forfeiture of any kind. The safeguard to this compulsion is that no such answer which the witness is compelled to give exposes him to any arrest or prosecution or can it be proved against him in any criminal proceeding except a prosecution for giving false evidence by such answer. In other words, if the customs authorities treated Ethyl Wong as a witness and produced her in court, Ethyl Wong was bound to answer all questions and could not be prosecuted for her answers. Mr. Jethmalanis argument that the Magistrate should have promptly put her in the dock because of her incriminating answers overlooks s. 132 (proviso). In India the privilege of refusing to answer has been removed so that temptation to tell a lie may be avoided but it was necessary to give this protection. The protection is further fortified by Art. 20(3) which says that no person accused of any offence shall be compelled to be a witness against himself. This article protects a person who is accused of an offence and not those questioned as witnesses. A person who voluntarily answer questions from the witness box waives the privilege which is against being compelled to be a witness against himself, because he is then not a witness against himself but against others. Section 132 of the Indian Evidence Act sufficiently protects him since his testimony does not go against himself. In this respect the witness is in no worse position than the accused who volunteers to give evidence on his own behalf or on behalf of a co-accused. There too the accused waives the privilege conferred on him by the article since he is subjected to cross-examination and may be asked questions incriminating him. The evidence of Ethyl Wong cannot, therefore, be ruled out as that of an incompetent witness. Since Ethyl Wong was a self- confessed criminal, in conspiracy with others who were being tried, her evidence was accomplice evidence. The word accomplice is ordinarily used in connection with the law of evidence and rarely under the substantive law of crimes. Accomplice evidence denotes evidence of a participant in crime with others. Section 133 of the Evidence Act makes the accomplice a competent witness against an accused person. Therefore, Ethyl Wongs testimony was again that of a competent witness. .. .. ..”

[Emphasis supplied]

44. From the above judgment of the Honble Supreme Court, now the legal position is clear that in India, when the witness is asked to answer a question, if the question is relevant to the matters in issue, he has no privilege to refuse to answer. In other words, there is legal compulsion to answer. So, the proviso, fully protects him from prosecution if the answer tends to incriminate him.

45. The scope of the protection under Section 132 of the Evidence Act again came up for consideration in State [Delhi Administration] v. Jagjit Sing, 1989 (2) Supreme Court Cases 770 : AIR 1989 SC 598 [LQ/SC/1988/607] . In that case, following Laxmipat Chorarias case, in para 13, the Honble Supreme court has held as follows:-

13. Therefore, a witness is legally bound to answer any question which is relevant to the matter in issue even if the answer to such question is likely to criminate him directly or indirectly. Proviso to Section 132 expressly provides that such answer which a witness is compelled to give shall not subject him to any arrest or prosecution nor the same can be proved against him in any criminal proceeding except a prosecution for giving false evidence by such answer. The provisions of proviso to Section 132 of the Indian Evidence Act clearly protect a witness from being prosecuted on the basis of the answers given by him in a criminal proceeding which tend to criminate him directly or indirectly. In view of this provision, the apprehension of the respondent that his evidence as approver will be used against him in the other four criminal cases where he figures as an accused is without any basis. On the other hand, he is absolutely protected from criminal prosecution on the basis of the evidence to be given by him when examined by the prosecution as an approver in the said case.”

[Emphasis supplied]

46. The above case relates to the evidence of an approver. The court, by following Laxmipat Chorarias case has reiterated the legal position that he is protected under the proviso to Section 132 of the Evidence Act since he was statutorily compelled to answer the questions relevant to the matters in issue.

47. The learned senior counsel for the petitioner would contend that such compulsion should emanate from the court. He placed reliance on the judgment of a five Judge Bench of this court in The Queen v. Gopal Doss and another, ILR 1881 Madras 271. The question before the Bench was “Is the witness protected by Section 132 of the Evidence Act, even where the evidence is voluntarily given”. In that case, factually, an affidavit containing certain statements, which were incriminating in nature, was filed. Further he voluntarily gave oral evidence which was likely to incriminate him. When the defendant was sought to be prosecuted, it was contended that he was protected by proviso to Section 132 of the Evidence Act. But, the court negatived the same and held as follows:-

“In this case, with regard to the affidavit, there could be no question of excuse or compulsion; the accused voluntarily made the affidavit to obtain leave to defend the action against him. Nor was it made as a witness; it was tendered as a party. The evidence at the trial also was purely voluntary and given by the accused to support his defence.”

48. In the above factual back drop, this court held that the terms of Section 132 of the Evidence Act, especially when read with the rest of the Act, impel to the conclusion that protection is afforded only to answers to which a witness has objected to or has been constrained by the Court to give. But, factually in that case, the answers were not elicited while he was cross examined as a witness, but an affidavit was filed voluntarily as a party. So, the larger Bench held that proviso to Section 132 of the Evidence Act is not applicable. This judgment has got nothing to do with the answers given by a witness while under examination in respect of a relevant matter.

49. The same question again came up for consideration before this court in Elavarthi Peddabba Reddi v. Iyyala Varada Reddi, 1929 LW 210 [relied on by the learned senior counsel for the petitioner]. It was a case decided by a Division Bench wherein the Division Bench has held as follows:-

“The compulsion contemplated in Section 132 is something more than being put into the box and being sworn to give evidence. The compulsion may be expressed or implied. It is not necessary that the compulsion must be in any set of words or that the asking for protection should be in a particular form. If the witness is made to understand that he must answer all questions without exception, it would amount to compulsion. In all cases it is the question of fact whether there was or was not compulsion. Whether the witness seeks the protection of the Court in a set of form of words or not, if the witness is made to understand directly or indirectly that he has no option in the matter but to answer all the questions put to him, I conceive he would bring himself within the proviso to Section 132. I am not prepared to hold that the proviso would only apply to witnesses who ask in so many words the protection of the Court under Section 132. The words of the proviso should be understood in the ordinary sense and the word “compelled” means forcing or insisting upon a witness to answer the question. The witness may not know that he should apply for protection; but any reasonable man ought to know that any statement defamatory of another would expose him to a charge of defamation. If he hesitates to answer and the court tells him he must answer the question I would hold that hesitation and the direction of the Court to the witness to answer would bring the witness within the proviso.”[Emphasis supplied]

50. In a different part of the same judgment, the Division Bench, while following the judgment in The Queen v. Gopal Doss, cited supra, has made the following observation:-

“.. .. .. It seems to me perfectly clear that their ruling was based on the construction of the language of the section and on nothing else. With great respect, I do not see how the language could have been constructed otherwise. Had it been the intention of the legislature to refer to a general obligation of law and not to specific compulsion by a Court, the section would have been very differently worded. Worded as it is, it seems to require a request by the witness to be executed from answering and compulsion by the Court on him to answer.”

51. In the final paragraph of the judgment, the Division Bench has held as follows:-

“Following the rule in The Queen v. Gopal Doss, ILR 3 Madras 271, I must find that, in this case, the petitioner who answered a question or questions put to him by his counsel without seeking the protection of Section 132 of the Evidence Act is not entitled to that protection. .. .. ..”

This judgment, in my view, instead of supporting the case of the petitioner, supports only the case of the prosecution. In this case, admittedly, the question was not during cross examination by the adverse party and so Section 146 to 148 have no application and instead Section 132 alone is applicable. The Division Bench has again reiterated that the witness has no privilege to refuse to answer a relevant question and he is fully protected by the proviso to Section 132 of the Evidence Act. It is not necessary that the witness should express in words his disinclination to answer as he has legal compulsion to answer.

52. A Full Bench of Bombay High Court in Bai Shanta v. Umrao Amir Malek, Man : AIR 1926 Bom 141 [LQ/BomHC/1925/238] [relied on by the learned senior counsel for the petitioner], had taken a similar view wherein in para 3, the Bombay High Court has held as follows:-

“With regard to the second question, we think that the words at the end of the question “and been obliged by the Court in spite of his objection to answer it”must have been put in by inadvertence, as the question propounded for our opinion should be “whether relevant statements made by a witness on oath or solemn affirmation in a judicial proceeding can be held to be protected by the proviso to Section 132 of the India Evidence Act, in the cases where the witness had not objected to answering the question put to him” It was hardly necessary to refer that question to a Full Bench, as there is no decision of this Court that such statements can be protected where the witness has not objected to answering them. On the contrary it was decided in Emperor v. Cunna (1920) 23 Bom. L.R. 1247 that unless a person objects to any question the answer to which is likely to criminate him, he cannot be said to have been compelled to give such answer within the meaning of the proviso.”

53. A Division Bench of Allahabad High Court in Chotkan v. State and others, AIR 1960 Allahabad 606 [relied on by the learned senior counsel for the petitioner], in paragraph 9 of the judgment has held as follows:-

“9. .. .. .. The main provision lays down that if a witness begs to be excused from answering a question on the particular ground, his prayer shall be rejected. The proviso comes into operation after the prayer of the witness to be excused is rejected and he is made to answer the question; that is the occasion when he can be said to be compelled to answer it. The compulsion contemplated by the proviso must arise out of the refusal of his prayer to be excused. The proviso states what would be the consequence of the witnesss not being excused; if he answers the question even though it will expose him to a penalty without any protest or hesitation or prior refusal to answer it, he is not compelled and the consequence laid down in the proviso will not arise.”

54. A Division Bench of Madhya Pradesh High Court in Hemraj Poonamchand v. Babulal Bhagirath, 1962 (2) Cri.L.J. 193 [relied on by the learned senior counsel for the petitioner] in para 5 has held as follows:-

“5. .. .. .. In such a situation, the proper course for the witness is to ask the court if he was bound to answer , and if the court still insisted , there would be compulsion attracting the proviso. But, if the witness goes on without showing the least hesitation or asking the court to excuse him then on facts, there is no compulsion. The learned Magistrate has read into the proviso, the principle of absolute privilege by presuming that there is compulsion whenever a witness comes into the box; that is not correct.”

55. A learned singe Judge of Orissa High Court has also taken the similar view in State of Orissa v. Aitu Durva and another, 1963 (2) Cri.L.J. 474 [relied on by the learned senior counsel for the petitioner] in the following words:-

“5. .. .. .. In some cases it has been held that in order to be entitled to the protection the witness must object to the question which tends to incriminate him. In other cases it has been held that the witness need not specifically object to the question and the mere fact of his being called to the witness-box, sworned and question about relevant facts implies that he is compelled to answer the question. The former view is correct. The question whether the statement was made voluntarily or under compulsion is a question of fact. Compulsion may be express or implied and not involve the necessity of a formal objection to giving the answer and of an order being made at the time of compelling the witness to answer nor can any set form of words be prescribed in which the claim should be made by the witness.”

56. In all these cases referred to above, it has been reiterated that the protection under the proviso to Section 132 of the Evidence Act is available; if only the witness has been compelled to answer any question which is likely to incriminate him. Now, the real question is,“What a compulsion is”

57. Compulsion means, the witness has no option but to answer. In other words, he cannot refuse to answer. The compulsion to answer is of two types, that is, compulsion by statute and compulsion by Court. Under Section 132 of the Act, the compulsion is by the statute. If a witness knows very well that there is a legal compulsion for him to answer the question and there is no excuse, though the answers may incriminate him, then, there is no need for him to formally refuse to answer the question. Though, prima facie, it may appear that the said evidence was given voluntarily, in fact, it is out of compulsion by statute. Therefore, any such answer admitted by the court as relevant is fully protected by the proviso to Section 132 of the Evidence Act.

58. The other type of compulsion is by Court. In this type, unless the Court compels him to answer he has excuse and thus, he can refuse to answer. The compulsion under Sections 147 and 148 of the Act are compulsions by Court. If out of such compulsion by Court, if he answers, he is again protected by the proviso to Section 132 of the Act.

59. The judgments of the High Courts of Bombay, Allahabad, Madhya Pradesh and Orissa, referred to above, relate to answers elicited during cross examination. In those cases, though the respective witness was not compelled by the court to answer either under Section 147 or under Section 148 of the Act, the witness concerned volunteered to answer the questions and so the courts rightly held that the protection under the proviso to Section 132 of the Evidence Act was not available for such witnesses. InHariharan v. State, 2004 (1) CTC 38, this court has taken a similar view as I now take.

60. Before summing up our conclusions, let us now glance through the proceedings of the Legislative Council where the following observations were made:

“In connection with this subject, we may refer to some provisions which we have inserted in order to prevent the abuse of the power of cross-examination to credit. We believe the existence of that power to be essential to the administration of justice, and we believe it to be liable to great abuse. The need for the power and danger of its abuse are proved by English experience, but in this country litigation of various kinds, and criminal prosecution in particular, are the great engines of malignity, and it is accordingly even more necessary here than in England, both to permit the exposure of corrupt motives and to prevent the use of the power of exposure as a means of gratifying malice. We have accordingly provided as follows:

“Such questions may relate either to matters relevant to the case, or to matters not relevant to the case. If they relate to matters relevant to the case, we think the witness ought to be compelled to answer, but that his answer should not afterwards be used against him.

“If they relate to matters not relevant to the case except insofar as they affect the credit of the witness, we think that the witness ought not to be compelled to answer. His refusal to do so would, in most cases, serve the purpose of discrediting him, as well as an express admission that the imputation conveyed by the question was true.”

61. To sum up, I hold as follows:-

I. When a witness is asked to answer a question either in chief examination; or in cross examination; or in re-examination, if the said question is relevant to the matter in issue, the witness has no excuse to refuse to answer as there is statutory compulsion to answer the question as provided under Section 132 of the Indian Evidence Act and if the answer tends to incriminate him, he shall be protected by the proviso to Section 132 of the Act.

II. When a witness is cross examined, it is lawful for the adverse party to ask any question, whether relevant to the matter in issue or not, for any one or more of the purposes enumerated in Section 146 of the Act.

III. When a witness is cross examined, the Court shall compel a witness to answer any question relevant to the matters in issue, for the purpose/purposes mentioned in Section 146 of the Act, and the answer to such question if tends to directly or indirectly incriminate him, he shall be protected by the proviso to Section 132 of the Evidence Act (see Section 147).

IV. When a witness is cross examined, a question, though not relevant to the matter in issue in the proceeding is asked, if it affects the credit of the witness by injuring his character, the Court shall compel him to answer the said question and if the answer tends to directly or indirectly incriminate him, he shall be protected by the proviso to Section 132 of the Act.

V. When a witness is under cross examination, if the question, which is not relevant to the matter in issue, is asked for the purposes: (1) to test his veracity or (2) to discover who he is and what is his position in life as dealt with in Section 146, the Court may or may not compel the witness to answer the question as detailed below:

(a) If the Court finds that the said question is a proper question as dealt with in Clause 1 of Section 148, the Court shall compel the witness to answer the question and if the answer tends to directly or indirectly incriminate him, he shall be protected by the proviso to Section 132 of the Act.

(b) If the Court finds that the question is an improper question as dealt with in Clauses 2 and 3 of Section 148 of the Act, the Court shall not compel the witness to answer the question and instead warn the witness that he is under no obligation to answer the said question.

(c) Despite the warning by the Court and without any compulsion by Court, if the witness answers voluntarily an improper question dealt with in Clauses 2 and 3 of Section 148 and if the answer tends to directly or indirectly incriminate him, he shall not be protected by the proviso to Section 132 of the Act.

(d) When an improper question is asked as dealt with in Clauses 2 and 3 of Section 148 of the Act, and after warning by the Court, if the witness refuses to answer the question, the Court may draw adverse inference that the answer if given would be unfavorable.

(e) While under cross examination, when an improper question is asked as dealt with in Clauses 2 and 3 of Section 148 of the Act, if the Court, inadvertently fails to warn the witness and the witness answers the question and if the said answer tends to incriminate him, he shall be protected by the proviso to Section 132 of the Act.

62. Applying the above tests to the facts of the present case, if we look into the evidence of the 2nd respondent/P.W.64 it is crystal clear that he is entitled for the protection under the proviso to Section 132 of the Evidence Act because there was legal compulsion to answer the question as it was relevant to the matter in issue in the case. The compulsion has emanated from Section 132 of the Evidence Act.

63. In view of all the above discussions, I hold that the evidence of the 2nd respondent, as a prosecution witness before the trial court, and the incriminating answers given by him amount to compelled testimony falling within the sweep of Section 132 of the Evidence Act and thus, he is protected by the proviso to Section 132 of the Evidence Act. In such view of the matter, solely on the basis of his evidence as P.W.64 before the trial court, he cannot be prosecuted either by summoning him as an additional accused in the present case or in a separate trial.

64. At the same time, for the offence of conspiracy allegedly committed by A2 and A3 and the 2nd respondent herein, there can be a prosecution for offence under Section 120(b) r/w 302 of IPC. But, such prosecution against the 2nd respondent cannot be based on his statement made under Section 164 of Cr.P.C. in this case and his evidence as P.W.64 before the trial court in the present sessions case. If there are other materials collected during investigation by which the said conspiracy could be proved against him, there can be no legal impediment to prosecute the 2nd respondent herein along with A2 and A3 for the said offence of conspiracy by filing a separate police report. After such prosecution, the prosecution will be at liberty to approach the court to tender pardon to the 2nd respondent under Section 306 of Cr.P.C. and then to examine him as a prosecution witness in order to prove the said conspiracy, if need be.

65. During the course of arguments, the learned Public Prosecutor submitted that there may be a direction issued to the trial court to have a day-to-day trial of the case. It is informed to this court that it has become almost the practice of the Principal Sessions Judge, Chennai and the other Sessions Judges not to have day-to-day trial of Sessions Cases though Section 309 of Cr.P.C. mandates that the trial shall be conducted on day-to-day basis. Having regard to the said statement made by the learned Public Prosecutor, I deem it appropriate to issue a direction to the trial court to hold trial on day-to-day basis and to dispose of the case at the earliest.

66. In view of all the above, I do not find any merit at all in this criminal revision petition. The criminal revision petition fails and the same is accordingly dismissed. The trial court shall recall P.W.64-L.Venkatesh for cross examination by the accused.