REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1043 OF 2002

BALASAHEB @ RAMESH LAXMAN  DESHMUKH … APPELLANT

VERSUS

STATE OF MAHARASHTRA & ANR.   … RESPONDENTS

J U D G M E N T

CHANDRAMAULI KR. PRASAD, J.

1. The short but important question of law which falls for  

our  determination  in  the  present  appeal  is  as  to  whether  

protection under Article 20(3) of the Constitution is available  

to the appellant, who though not an accused in the police case  

in which he has been asked to depose as a witness but figures  

as an accused in the complaint case filed later on in relation to  

the same incident.

2. Bereft  of  unnecessary  details,  the  facts  necessary  for  

determination  of  the  aforesaid  question  are  that  informant  

Charudatta Pawar is alleged to have been assaulted by four  

persons in a Hotel in the night between 25th and 26th of April,  

1996  and  on  the  basis  of  the  report  given  by  him  CR  

No.102/1996  was  registered  at  Chalisgaon  Police  Station.  

During the investigation the appellant figured as a witness and  

his statement was recorded under Section 161 of the Code of  

Criminal  Procedure.   After  investigation  Chalisgaon  Police  

Station  submitted  chargesheet  against  4  accused  persons  

named in the first information report on 24.5.1997. The said  

case, hereinafter referred to as the police case, is pending for  

trial  before  Judicial  Magistrate,  First  Class,  Chalisgaon.  In  

regard to the same incident which is the subject matter of the  

trial  in  the  aforesaid  Police  case,  a  complaint  was  filed  

impleading the appellant herein besides five other persons as  

accused.  Appellant figures as accused No.6 in the complaint  

case and according to the allegation he conspired with other  

accused in commission of  a  crime.  In this case,  hereinafter  

referred to as the complaint case the Judicial Magistrate took  

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cognizance of the offence and issued process by order dated  

2nd February, 1998 against the four accused who were already  

chargesheeted  in  the  police  case  and  three  other  accused  

including  the  appellant  herein.  By  an order  of  the  Bombay  

High Court dated 26th April, 1999 both the criminal cases i.e.  

police case and complaint case were directed to be tried and  

decided  simultaneously.  The  Bombay  High  Court  further  

directed the Magistrate in sesin of  the trial  to conclude the  

trial within stipulated time.  

3. The  appellant  filed  an  application  before  the  learned  

Magistrate in sesin of the Police case objecting his examination  

as  witness,  inter  alia,  contending  that  in  view  of  the  

Constitutional protection guaranteed under Article 20(3) of the  

Constitution of India, he cannot be compelled to be a witness  

in the case as he himself is an accused in relation to the same  

incident in the complaint case. The learned Magistrate by its  

order dated 5th September, 2000 allowed the application and  

observed that the prosecution cannot examine the appellant  

as a witness in the Police  case.   The State  of  Maharashtra  

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aggrieved  by  the  aforesaid  order  filed  Criminal  Revision  

Application  No.268  of  2000  before  the  Bombay  High  Court  

which  by  its  order  dated  27th April,  2001  allowed  the  

application and set aside the order of the learned Magistrate,  

inter alia, observing that no such blanket protection can be  

given to the appellant. Relevant portion of the judgment of the  

High Court reads as follows:

“10. To sum up, witness Balasaheb @ Ramesh  Laxman Deshmukh is  not an accused in CC NO.  97/96 in  spite  of  accusations  against  him in  the  deposition  of  complainant  Charudatta  (Esh.142)  and  admission  of  complainant  dated  26.4.1996  (Exh.143) which are pieces of evidence relevant in  C.C.No.3/98, since he is not charged by the charge  framed  in  that  case.  Therefore,  even  if  he  is  compelled to depose as a witness in C.C. No. 97/96  that  can  not  be  said  to  be  compulsion  to  give  evidence  against  himself.  Moreover,  by  virtue  of  proviso to Section 132 of Indian Evidence Act, he is  protected from use of self incriminating statements  against him, in any other proceeding including C.C.  No.3/98.

The blanket protection granted by Magistrate  vide his order dated 5.9.2000 can do, therefore, be  sustained.”

4. Mr.  M.Y.  Deshmukh,  learned  Counsel  appearing  on  

behalf of the appellant contends that the appellant being an  

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accused in  the  complaint  case  cannot  be compelled  to  give  

evidence against himself in the Police case.  It is pointed out  

that  Article  20(3)  of  the  Constitution  contemplates  that  no  

person,  accused of  any offence,  shall  be  compelled  to  be  a  

witness against himself. It is emphasised that the appellant  

is not an accused in the Police case but in relation to the same  

incident in the complaint case he figures as an accused and,  

therefore, he is entitled to the protection under Article 20(3) of  

the Constitution.  In support of  the submission reliance has  

been  placed  on  a  decision  of  this  Court  in  the  case  of  

Ramanal  Bhogilal  Shah  &  Another  vs.  D.K.  Guha  &  

Others,  (1973)  1  SCC  696,   and  our  attention  has  been  

drawn  to  paragraph  22  of  the  judgment  which  reads  as  

follows:

“22.  The  Additional  Solicitor-General  says  that  the petitioner  had not  been specifically  named as  accused  in  the  first  information  report  and,  therefore, he is not entitled to the protection under  Article 20(3).  We are unable to agree with him in  this  respect.  The  petitioner  was  the  General  Manager of the United Commercial Bank and it was  alleged in the grounds of arrest that the petitioner  was in charge of, or was responsible to the United  Commercial  Bank  Ltd.  for  the  conduct  of  the  business  of  the  said  Bank,  and that  he  failed  to  prove  in  course  of  his  statements  made  under  Section  19-F  before  Shri  D.K.  Guha,  Deputy  

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Director of Enforcement that the contravention took  place without his knowledge or that he exercised all  due diligence to prevent the aforesaid contravention,  as  required  under  Section  23-C  of  the  Exchange  Act.”

5. At  the  first  blush  we  were  inclined  to  accept  this  

submission but on a deeper scrutiny we find no substance in  

it and the decision relied on instead of supporting his case,  

goes  against  him.   Protection  under  Article  20(3)  of  the  

Constitution does not extend to any kind of evidence but only  

to  self-incriminating  statements  relating  to  the  charges  

brought against an accused.  In order to bring the testimony of  

an accused within the prohibition of constitutional protection,  

it  must  be  of  such  character  that  by  itself  it  tend  to  

incriminate the accused. Appellant is not an accused in the  

Police  case  and  in  fact  a  witness,  whose  statement  was  

recorded under Article 161 of the Criminal  Procedure Code,  

and, therefore, not entitled to a blanket protection.  However,  

in case of trial in the Police case answer to certain question if  

tends to incriminate the appellant he can seek protection at  

that stage. Whether answer to a question is incriminating or  

otherwise has to be considered at the time it is put. Reference  

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in this connection can be made to a decision of this Court in  

the case of  State of Bombay vs.  Kathi Kalu Oghad, AIR  

1961 SC 1808, wherein it has been held as follows:

“In  order  that  a  testimony  by  an  accused  person may be said to have been self-incriminatory  the  compulsion  of  which  comes  within  the  prohibition of the constitutional provision, it must  be of such a character that by itself it should have  the  tendency  of  incriminating  the  accused,  if  not  also of actually doing so. In other words, it should  be a statement which makes the case against the  accused  person  at  least  probable,  considered  by  itself.”

6. We are of the opinion that for invoking the constitutional  

right  under  Article  20(3)  a  formal  accusation  against  the  

person claiming the protection must exist. Simply because the  

appellant  figures  as  the  accused  in  the  complaint  case,  a  

blanket  protection  as  claimed  by  him  cannot  be  granted.  

Reference in this connection can be made to a decision of this  

Court in the case of  Raja Narayanlal Bansilal v. Maneck  

Phiroz Mistry and Another, AIR 1961 SC 29, wherein it has  

been held as follows:

“The effect of this decision thus appears to be that  one  of  the  essential  conditions  for  invoking  the  constitutional guarantee enshrined in Article 20(3)  

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is  that  a  formal  accusation  relating  to  the  commission  of  an  offence,  which  would  normally  lead  to  his  prosecution,  must  have  been  levelled  against  the  party  who  is  being  compelled  to  give  evidence  against  himself;  and  this  conclusion,  in  our opinion, is fully consistent with the two other  decisions of  this  Court  to  which we  have  already  referred.

7. Referring  to  the  decision  of  this  Court  in  the  case  of  

Ramanlal Bhogilal Shah (supra), relied on by the appellant,  

the  same in  spite  of  supporting  his  case  goes  against  him  

which would be evident from the following paragraph of the  

said judgment:

“24. Although we hold that the petitioner is a  person accused of an offence within the meaning of  Article 20(3), the only protection that Article 20(3)  gives to him is that he cannot be compelled to be a  witness  against  himself.  But  this  does  not  mean  that he need not give information regarding matters  which do not tend to incriminate him.  

8. Mr. Deshmukh, then contends that the protection under  

Article 20(3) goes beyond the complaint case but shall cover  

the  Police  case  also  because  appellant  is  an  accused  in  

relation to the same incident and the trial is pending in the  

said case. Reliance has been placed on a decision of this Court  

in the case of  Nandini Satpathy vs. P.L. Dani & Another,  

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(1978)  2  SCC  424,  and  our  attention  has  been  drawn  to  

paragraph 57 of the judgment which reads as follows:

“57. We hold that Section 161 enables the police  to  examine  the  accused  during  investigation.  The  prohibitive sweep of Article 20(3) goes back to the  stage of police interrogation — not, as contended,  commencing  in  court  only.  In  our  judgment,  the  provisions  of  Article  20(3)  and  Section  161(1)  substantially cover the same area, so far as police  investigations  are  concerned.  The  ban  on  self- accusation  and  the  right  to  silence,  while  one  investigation or trial is under way, goes beyond that  case  and protects  the  accused in  regard  to  other  offences pending or imminent, which may deter him  from voluntary disclosure of criminatory matter. We  are  disposed  to  read  “compelled  testimony”  as  evidence procured not merely by physical threats or  violence  but  by  psychic  torture,  atmospheric  pressure,  environmental  coercion,  tiring  interrogative prolixity, overbearing and intimidatory  methods  and  the  like  —  not  legal  penalty  for  violation. So, the legal perils following upon refusal  to answer, or answer truthfully, cannot be regarded  as compulsion within the meaning of Article 20(3).  The  prospect  of  prosecution  may  lead  to  legal  tension in the exercise of a constitutional right, but  then,  a  stance  of  silence  is  running  a  calculated  risk.  On the  other  hand,  if  there  is  any mode  of  pressure, subtle or crude, mental or physical, direct  or indirect, but sufficiently substantial, applied by  the  policeman  for  obtaining  information  from  an  accused  strongly  suggestive  of  guilt,  it  becomes  “compelled testimony”, violative of Article 20(3).”

We do not find any substance in this submission of the  

learned  Counsel  and  the  decision  relied  on  is  clearly  

distinguishable.  

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9. As observed earlier the appellant is not an accused in the  

Police  case  and  in  fact  a  witness  whose  statement  was  

recorded during the course of investigation under Section 161  

of  the  Code  of  Criminal  Procedure.  In  the  Police  case  he  

utmost can be asked to support the case of the prosecution  

but no question intented to incriminate him can be asked and  

in  case  it  is  done  the  protection  under  Article  20(3)  of  the  

Constitution shall spring into action.  What question shall be  

put to this appellant when he appears as a witness is a matter  

of guess and on that basis he does not deserve the blanket  

protection under Article 20(3) of the Constitution.  Even at the  

cost of the repetition we may observe that in the Police case  

when he appears and asked to answer question, the answer  

whereof tends to incriminate him, he can refuse to answer the  

same  pleading  protection  under  Article  20(3)  of  the  

Constitution.  In such eventuality the Court would decide the  

same.  Therefore, at this stage the blanket protection sought  

by the appellant is not fit to be granted.   

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10. As  regards  the  authority  of  this  Court  in  the  case  of  

Nandini Satpathy (supra) the same has no bearing in the  

facts and circumstances of this case. There the question was  

as  to  whether  the  protection  under  Article  20(3)  of  the  

Constitution  shall  apply  at  the  stage  of  Police  interrogation  

and in answer thereto this Court held that it shall go back to  

the stage of Police interrogation and not in Court only.  

11. As the trial is pending since long, the learned Magistrate  

in sesin of the trial shall  make endeavour to dispose of the  

same expeditiously, preferably within a period of six months  

from the date of receipt of a copy of this order.   

12. In the result, we do not find any merit in the appeal and  

it is dismissed accordingly with the observation aforesaid.

…………………...........................J      [HARJIT SINGH BEDI]

 ................................................J

 [CHANDRAMAULI KR. PRASAD] NEW DELHI DECEMBER 7, 2010.

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