Section 138 BSA Is The Misconceived Product Of Judicial Misinterpretation

SECTION 138 BSA IS THE MISCONCEIVED PRODUCT OF JUDICIAL MISINTERPRETATION

C O N T E N T S

I N T R O D U C T I O N

The Bharatiya Sakshya Adiniyam, 2023 (“BSA” for short) which repealed and replaced the Indian Evidence Act, 1872 (“the Evidence Act” for short) came into force on 01-07-2024. In this article I propose to deal with the contours of “testimonial competence” of an “accomplice” to give evidence before a Court of Law. “Conspiracy cases” are usually proved with the aid of “approvers” and “accomplices”.

“Conspiracies are hatched in secrecy and executed in darkness”. (Vide para 5 of Badri Rai v. State of Bihar AIR 1958 SC 953 = 1958 Cri.L.J. 1434 = 1958 KHC 511 (SC) - B. P. Sinha, S. J. Imam – JJ.). Generally, a conspiracy is hatched in secrecy and it may be difficult to adduce direct evidence of the same. (Vide para 29 of Firozuddin Basheeruddin v. State AIR 2001 SC 3488 = (2001) 7 SCC 596 – K. T. Thomas, D. P. Mohapatra – JJ.) See also Proposition No: 3 in the summary on “conspiracy” as laid down in para 583 of Supdt. of Police, CBI/SIT v. Nalini AIR 1999 SC 2640 = (1999) 5 SCC 253 – K. T. Thomas, D. P. Wadhwa, S. S. Mohmmed Quadri – JJ – reiterated in para 32 of Firozuddin Basheeruddin (Supra – AIR 2001 SC 3488).

The inter-relationship between “accomplice” and “approver” and their testimonial competence

2. An “approver” is an “accomplice” who has received pardon under Section 306 Cr.P.C. (Vide para 67 of Somasundaram @ Somu v. State rep. by the Deputy Commissioner of Police AIR 2020 SC 3327 = (2020) 7 SCC 722 = 2020 KHC 6406 (SC) – K. M. Joseph, V. Ramasubramanian - JJ.)

An “accomplice” who was not arrayed as an accused and prosecuted in the case and an “accomplice” who was not granted pardon, would still be competent witnesses. (Vide para 42 of Chandran @ Manichan @ Maniyan v. State of Kerala AIR 2011 SC 1594 = (2011) 5 SCC 161 – V. S. Sirpurkar, Cyriac Joseph – JJ; Paras 28 to 30 of Suresh Raj v. National Investigation Agency 2022 Cri.L.J. 3777 = 2022 (4) KHC 480 (Kerala) – K. Vinod Chandran, C. Jayachandran – JJ.)

This means that in order to be examined as a witness, an “accomplice” need not necessarily become an “approver” or even an “accused”.

Why an “accomplice” or an “approver” ?

3. Many a time heinous and grave crimes are committed in such a manner that there will be no eye-witnesses and no clue or trace also available for their detection. It is to take care of such precarious situations that Section 306 Cr.P.C. was enacted by the Parliament to ensure that offenders of such brutal crimes do not go unpunished. Section 306 Cr.P.C. was preceded by Section 337 of the 1898 Code. Hence, with a view to prevent the escape of offenders of such heinous crimes from punishment, a person who was a privy to the offence (an accomplice) is tendered pardon subject to the condition that he will make a clean breast of the occurrence inculpating himself and the other partners of the crime. (Vide para 21 of Suresh Chandra Bahri v. State of Bihar AIR 1994 SC 2420 = 1994 Cri.L.J. 3271 = 1995 KHC 556 (SC) – Dr. A. S. Anand, Faizan Uddin – JJ; Para 15 of State of Maharashtra v. Abdu Salem Abdul Kayyum Ansari (2010) 10 SCC 179 – P. Sathasivam, R. M. Lodha – JJ; Para 28 of Mrinal Das v. State of Tripura AIR 2011 SC 3753 = (2011) 9 SCC 479 – P. Sathasivam, H. L. Gokhale – JJ.) When an accused/accomplice is granted pardon under Section 306 Cr.P.C. he stands discharged as an accused and becomes a “witness for the prosecution”. (Vide para 9 of A. J. Peiris v. State of Madras AIR 1954 SC 616 – 3 Judges – M. C. Mahajan – CJI, Vivian Bose, Ghulam Hassan – JJ; Para 11 of State v. Jagjit Singh AIR 1989 SC 598 – Ray, Ojha – JJ; Para 17 of Abdu Salem Kayyum Hansari (Supra (2010) 10 SCC 179). As a necessary corollary, once the pardon is withdrawn or forfeited on the certificate given by the Public Prosecutor under Section 308 Cr.P.C., the accomplice/witness is reverted to the position of an accused and becomes liable to be tried separately. (Vide para 17 of Abdu Salem (Supra – (2010) 10 SCC 179)

The relevant legal provisions in the Evidence Act

4. Section 133 of the Evidence Act dealing with the competency of an accomplice as a witness, reads as follows –

“133. Accomplice – An accomplice shall be a competent witness against an accused person; and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice.”

It is pertinent to note that it may not be correct in saying that Section 133 of the Evidence Act insisted on “corroboration” as a condition precedent for accepting the testimony of an accomplice even for the purpose of convicting an accused. As per that Section an uncorroborated testimony of an accomplice could be the basis for a conviction. “Uncorroborated” means not confirmed or supported by other evidence. What the above provision really meant was that merely because the testimony of an “accomplice” was not corroborated by other evidence, it would not affect the competence of the “accomplice” as a witness and that even a conviction of the accused on such uncorroborated testimony of an “accomplice”, would be perfectly legal.

5. One other provision which was relevant in the Evidence Act, regarding an accomplice, was Section 114 and Illustration (b) to the said Section. The said Section and Illustration (b) to the said Section read as follows –

“114. Court may presume existence of relevant facts – The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.”

Illustrations

(Illustrations (a) and (c) to (i) omitted as not relevant here.)

“Illustration (b) – The Court may presume that an accomplice is unworthy of credit, unless he is corroborated in material particulars;”

No interdependence between Section 133 and Illustration (b) to Section 114 of the Evidence Act

6. While Section 133 of the Evidence Act was a “substantive provision”, Illustration (b) to a totally different Section, namely, Section 114, was merely an “Illustration” which said that the Court may in relation to the facts of the particular case, presume that an accomplice is unworthy of credit unless corroborated in material particulars. The above statement contained in an “Illustration” to a Section and which could be applied only to a given case, cannot be treated as a generalized proposition of law applicable in the case of all accomplices in all cases. It was a discretion given to the Court in a particular case and not in all cases. If it were to be treated as a rule of general application to “all accomplices”, then it would render Section 133 of the Evidence Act a “dead letter”. It was impermissible to treat the “Illustration” to a particular section (and that too, applicable only to a particular case), as a general proposition of law applicable to “all accomplices” in “all cases”. “Illustration (b)” was not a “proviso” or an “Illustration” to Section 133 of the Evidence Act. Even to Section 114 of the Evidence Act, it was not a “proviso” but only an “Illustration”. Moreover Section 114 of the Evidence Act is not a provision concerning “accomplices” at all. The real problem was not in the Evidence Act, but in the Courts reading together Section 133 and Illustration (b) to Section 114 resulting in travesty of Justice.

Justice Arijit Pasayat although helplessly bound by the long line of precedents applying Illustration (b) to Section 114 of the Evidence Act to the testimony of all accomplices, took particular care to emphasize that the word used in the “Illustration” is “may” and not “must” and that no Court is obliged to hold that the accomplice is unworthy of credit in all cases. (Vide para 27 of Hashim v. State of Tamil Nadu AIR 2005 SC 128 = (2005) 1 SCC 237 – Arijit Pasayat, C. K. Thakkar – JJ; Para 16 of Sitaram v. State of Jharkhand AIR 2008 SC 391 = (2007) 12 SCC 630 – Dr. Arijit Pasayat, Lokeshwar Singh Panta – JJ.)

Even though Courts in India conceded the acceptability of uncorroborated testimony of an accomplice, they have unjustifiably deviated therefrom and drawn support from precedents in English Law, to add a rider to such testimony

7. Way back in the year 1952, Justice Vivian Bose observed as follows –

“There is no rule or practice that there must, in every case, be corroboration before a conviction can be allowed to stand.” (Vide end of para 19 of Rameshwar v. State of Rajasthan AIR 1952 SC 54 = 1951 SCC OnLine SC 83 = 1952 KHC 299 (SC) – Saiyid Fazl Ali, Vivian Bose – JJ.)

The same view has been taken in the following verdicts also –

• Para 8 of Ramnarayan v. State of Rajasthan AIR 1973 SC 1188 = (1973) 3 SCC 805 – 3 Judges – A. Alagiriswami, I. D. Dua, C.A. Vaidialingam – JJ;
• Para 34 of Narayan Chetanram Chaudhary v. State of Maharashtra AIR 2000 SC 3352 = (2000) 8 SCC 457 – K. T. Thomas, R. P. Sethi – JJ (Case-law discussed);
• Para 8 of Haroon Haji Abdulla v. State of Maharashtra AIR 1968 SC 832 = 1968 Cri.L.J. 1017 – M. Hidayatullah, C. A. Vaidialingam – JJ;
• Paras 6 and 7 of Bhiva Doulu Patel v. State of Maharashtra AIR 1963 SC 599 – 3 Judges - J. L. Kapur, A. K. Sarkar, M. Hidayatulla – JJ;
• Para 11 of CBI v. Ashok Kumar Aggarwal (2013) 15 SCC 222 = (2013) KHC 4917 (SC) – Dr. B. S. Chauhan, S. A. Bobde – JJ;
• Paras 18 to 21 of Prathipal Singh v. State of Punjab (2012) 1 SCC 10 = 2011 KHC 5008 (SC) – P. Sathasivam, Dr. B. S. Chauhan – JJ;

There is a plethora of decisions taking the very same view. But in all those verdicts, after stating the principle of Section 133 of the Evidence Act, the learned Judges deviated therefrom by placing reliance on “Illustration (b)” to Section 114 of the Evidence Act and also upon the English decision in Rex v. Baskarville (1916) 2 KB 658 in which Chief Justice of England Lord Reading observed as follows –

"There is no doubt that the uncorroborated evidence of an accomplice is admissible in law (R. v. James Atwood, (1787) 1 Leach 464). But it has been long a rule of practice at common law for the Judge to warn the jury of the danger of convicting a prisoner on the uncorroborated testimony of an accomplice, and in the discretion of the Judge, to advise them not to convict upon such evidence, but the Judge should point out to the jury that it is within their legal province to convict upon such unconfirmed evidence (R. v. Stubbs, (1855) Dears CC 555; in re, Meunier, (1894) QB 415)."

Emphasis supplied by me

How can a long rule of practice at “common law” govern the procedure in India where there is a specific provision like Section 133 of the Evidence Act ?

In Buboni Sahu v. The King AIR 1949 PC 25 = 76 Ind. App. 147, the Privy Council observed as follows –

“The Law in India relating to the evidence of accomplices stands thus:

Whilst it is not illegal to act upon the uncorroborated evidence of an accomplice it is a rule of prudence so universally followed as to amount almost to a rule of law that it is unsafe to act upon the evidence of an accomplice unless it is corroborated in material respects so as to implicate the accused: and further that the evidence of one accomplice cannot be used to corroborate the evidence of another accomplice. The rule of prudence may be said to be based upon the interpretation placed by the Courts on the phrase “corroborated in material particulars” in illustration (b) to S.114.”

(Emphasis is mine)

The above verdict proceeds on the basis of interpretation placed by the Courts in India by reading “Illustration (b)” to Section 114 along with Section 133 of the Evidence Act without noticing that “Illustration (b)” to Section 114 of the Evidence Act is patently contradictory to the substantive Section 133 of the said Act. The said Illustration should be confined only to a case in which the testimony of the approver was found to be partly “reliable” and partly “credible”. If the approver was found to be a “reliable witness” (by applying the usual tests for evaluating any other witness) and his version was found to be “intrinsically credible”, there will be no occasion for the Trial Court to look for any corroboration in his evidence. In other words, for gauging the testimony of an approver to find out whether his evidence is intrinsically credible, the question of corroborating his evidence does not arise. (Vide para 7 of Sarwan Singh Rattan Singh v. State of Punjab AIR 1957 SC 637 = 1957 Cri.L.J. 1014 – 3 Judges – B. Jagannadhadas, B.P. Sinha, P. B. Gajendragadkar – JJ.)

In para 7 of Sarwan Singh Rattan Singh v. State of Punjab AIR 1957 SC 637 = 1957 Cri.L.J. 1014 – 3 Judges – B. Jagannadhadas, B.P. Sinha, P. B. Gajendragadkar – JJ, it was held that the approver's evidence should pass the twin tests, namely –

i) whether as an accomplice, the approver was a reliable witness (which is common to all witnesses) and his version was intrinsically credible, and

ii) if so, whether his evidence was corroborated against each accused in material particulars by other evidence direct or circumstantial.

In para 8 of Piara Singh v. State of Punjab AIR 1969 SC 961 = (1969) 1 SCC 379 – 3 Judges - J. C. Shah, V. Ramaswami, A. N. Grover - JJ, it is observed as follows –

“It is well settled that the appreciation of approver's evidence has to satisfy a double test. His evidence must show that he is a reliable witness and that is a test which is common to all the witnesses. If this test is satisfied the second test which still remains to be applied is that the approver's evidence must receive sufficient corroboration. (See Sarwan Singh v. State of Punjab, AIR 1957 Supreme Court 637).”

If the first test is satisfied and it is found that the accomplice is a “reliable witness”, then why look for corroboration at all thereby doing violence to Section 133 of the Evidence Act ?

Apply the usual test for evaluating the credibility of an “accomplice” like any other witness

8. In my humble opinion, the testimony of an approver should be evaluated by applying the same yardsticks applicable to any other ordinary witness. The antecedents of the witness, whether good or bad, are also factors which go into the process of evaluating the credibility of the testimony of any witness including an approver. Factors such as the evidence of an accomplice is “tainted evidence” as held in AIR 1957 SC 637; AIR 1979 SC 1761; or that the approver is an “infamous witness” as observed in para 57 of AIR 1963 SC 1850; or that the approver is a “most unworthy friend” as observed in para 12 of AIR 1975 SC 856; or the approver is a “man of bad character” as observed in AIR 1949 PC 257; or that the approver is a “self confessed traitor” as observed in AIR 1959 SC 1199 and AIR 1984 SC 226 etc., should enter the mind of the trial Judge while considering the “reliability” of the approver. With utmost respect, I am constrained to say that the view taken in Sarwan Singh (Supra - AIR 1957 SC 637), Piara Singh (Supra – AIR 1969 SC 961) etc. cannot be supported as sound in law having regard to the fact that the very examination of the approver has been necessitated on account of the total dearth of evidence against the other accused persons. If so, how can the Court expect any other incriminating circumstance which could be made use of for “corroborating” the approver ? In Somasundaram v. State of Madras (2020) 7 SCC 722, Justice K. M. Joseph speaking also on behalf of Justice V. Ramasubramanian, made a pertinent observation as follows –

“To overlook the testimony of PW.10 and PW.11 (The accomplices) in a case based on circumstantial evidence, being about matters which could not possibly have been witness by any other witnesses other than the accomplices, will be asking for the impossible, except perhaps concocted evidence.”

The above warning from the highest Court of the country should percolate down to all Courts particularly the trial Courts in the country.

Loosened standards of evidence permissible in

“conspiracy cases”

9. There is an illuminating discussion on “criminal conspiracy” in paragraphs 21 to 23 of Firozuddin Basheeruddin v. State AIR 2001 SC 3488 = (2001) 7 SCC 596 – K. T. Thomas, D. P. Mohapatra – JJ. The Apex Court in this verdict in paragraph 26 has taken Judicial notice of the fact that in “conspiracy cases” loosened standards of evidence outside the Evidence Act, is permissible.

Mohamed Sugal Esa Mamasan Rer Alalah v. The King AIR 1946 PC 3 – Lord Goddard, Lord Simonds, Lord Porter, was a case arising from Somaliland to which the provisions of the Indian Evidence Act, 1872 and the Indian Oaths Act, 1873 had been made applicable. The question there was whether the sole testimony of a child could be relied on without any corroboration at all. Holding that the uncorroborated testimony of the child could be the basis of a conviction, the Privy Council observed as follows –

“It was also submitted on behalf of the appellant that assuming the unsworn evidence was admissible the Court could not act upon it unless it was corroborated. In England where provision has been made for the reception of unsworn evidence from a child it has always been provided that the evidence must be corroborated in some material particular implicating the accused. But in the Indian Act there is no such provision and the evidence is made admissible whether corroborated or not. Once there is admissible evidence a court can act upon it; corroboration, unless required by statute, goes only to the weight and value of the evidence. It is a sound rule in practice not to act on the uncorroborated evidence of a child, whether sworn or unsworn, but this is a rule of prudence and not of law.”

The proper test for evaluation of the testimony of an accomplice

10. The proper test for deciding whether the Court should look for corroboration is by applying the ratio in Vadivelu Thevar v. State of Madras AIR 1957 SC 614 = 1957 Cri.L.J. 1000 – 3 Judges – B. Jagannadhadas, B. P. Sinha, Gajendragadkar – JJ, wherein witnesses were classified into three categories namely –

1. Wholly reliable – No corroboration is needed
2. Wholly unreliable – Deserves to be rejected even if there is corroboration (See para 18 of Sitaram v. State of Jharkhand AIR 2008 SC 391 = (2007) 12 SCC 630 – Dr. Arijit Pasayat, Lokeshwar Singh Panta – JJ.)
3. Partly reliable and partly unreliable corroboration necessary – (See para 10 of Lallu Manjhi v. State of Jharkhand AIR 2003 854 = (2003) 2 SCC 401 – R. C. Lahoti, Brijesh Kumar – JJ.

Thus the Court need not look for any corroboration if the testimony of the approver is either “wholly reliable” or “wholly unreliable”. The question of looking for corroboration will arise only if the approver is “partly reliable” and “partly unreliable”. Vadivelu Thevar was followed in a number of subsequent decisions by the Supreme Court, such as –

1. Ramraton v. State of Rajasthan AIR 1962 SC 424 = 1962 (1) Cri.L.J. 473 = 1962 KHC 476 – 3 Judges – K. N. Wanchoo, K. C. Das Gupta, J. C. Shah - JJ.
2. Guli Chand v. State of Rajasthan AIR 1974 SC 276 = (1974) 3 SCC 698 = 1974 KHC 621 – M. H. Beg, Y. V. Chandrachud – JJ.
3. Badri v. State of Rajasthan AIR 1976 SC 560 = (1976) 1 SCC 442 = 1976 KHC 641 – M. H. Beg, P. K. Goswami – JJ.
4. Vahula Bhushan @ Venuna Krishnan v. State of Tamil Nadu AIR 1989 SC 236 = 1989 Supp. 1 SCC 232 = 1989 SCC (Cri) 353 – B.C. ray, N. D. Ojha - JJ
5. Para 7 of Jagdish Prasad v. State of M. P. AIR 1994 SC 1251 = 1994 Cri.L.J. 1106 = 1994 KHC 1344 (SC) – R. Ratnavel Pandian, M. Fathima Beevi – JJ.
6. Kartik Malhar v. State of Bihar (1996) 1 SCC 614 = 1996 Cri.L.J. 889 – Kuldip Singh, S. Saghir Ahmad – JJ. (Case law discussed)

In my humble opinion, the proper yardstick for deciding whether the Court should look for corroboration is by applying the above ratio. This is probably the only way in which Illustration (b) to Section 114 of the Evidence Act can be harmonized with Section 133 of the Evidence Act, if at all, it can be read along with Section 133 of the Evidence Act.

When Indian Law is clear there is no need to rely on English Principles

11. Interpreting Section 70 of the Indian Contract Act, 1872, the Apex Court in State of West Bengal v. B. K. Mondal AIR 1962 SC 779 = 1961 SCC OnLine SC 76 – 5 Judges – P. B. Gajendragadkar, A. K. Sarkar, K. N. Wanchoo, K. C. Das Gupta and N. Rajagopala Ayyangar – JJ, observed as follows –

“Mr. Sen's argument is that in dealing with the question about the effect of the contravention of S.175(3) of the Act and the applicability of S.70 of the Contract Act the decision in the case of Lawford 1903 (1) KB 772 is irrelevant while that in the case of H. Young and Co., 1882 (8) AC 517 is relevant and material because we are concerned with the contravention of a statutory provision and not with the contravention of the provision of the rule of common law. We are not impressed by this argument. The question which the appellant has raised for our decision falls to be considered in the light of the provisions of S.70 and has to be answered on a fair and reasonable construction of the relevant terms of the said Section. In such a case, where we are dealing with the problem of construing a specific statutory provision it would be unreasonable to invoke the assistance of English decisions dealing with the statutory provisions contained in English law. As Lord Sinha has observed in delivering the judgment of the Privy Council in Ramanandi Kuer v. Kalawati Kuer, 55 Ind App 18 : ILR 7 Pat 221 : AIR 1928 PC 2

"it has often been pointed out by this Board that where there is a positive enactment of the Indian Legislature the proper course is to examine the language of that statute and to ascertain its proper meaning uninfluenced by any consideration derived from the previous state of the law or of the English law upon which it may be founded".

If the words used in the Indian statute are obscure or ambiguous perhaps it may be permissible in interpreting them to examine the background of the law or to derive assistance from English decisions bearing on the point; but where the words are clear and unambiguous it would be unreasonable to interpret them in the light of the alleged background of the statute and to attempt to see that their interpretation conforms to the said background. That is why, in dealing with the point raised before us we must primarily look to the law as embodied in S.70 and see to put upon it a fair and reasonable construction.” (Vide para 12)

(Emphasis supplied by me)

Again in M/s World Wide Agencies Pvt. Ltd. v. Mrs. Margarat T. Desor AIR 1990 SC 737 = (1990) 1 SCC 536 – Sabyasachi Mukharji – CJI, B. C. Ray – JJ, the Bench observed as follows –

“But we need not detain ourselves with this controversy because the decisions of the English Courts are not binding in the Courts of India. But the observations or the reasoning are of persuasive value.”

(Emphasis supplied)

Thus, when the “substantive provision”, namely, Section 133 of the Evidence Act enables the Court even to record a conviction on the uncorroborated testimony of an “accomplice”, it may not be permissible for the Courts in India to fall back upon the English precedents to hold that the testimony of an accomplice cannot be relied on unless sufficiently corroborated by other evidence. In cases where there is adequate circumstantial evidence, why an “accomplice” at all ?

It was impermissible to read together Section 133 and Illustration (b) to Section 114 of the Evidence Act since one was destructive of the other

12. In most of the judicial verdicts referred to above Section 133 and Illustration (b) to Section 114 of the Evidence Act have been read together. How can a mere illustration to a totally different Section be read along with a substantive Section which is diametrically opposed to the said Illustration ? It is rather unfortunate that Courts failed to notice the fact that “Illustration (b)” to Section 114 was neither a proviso nor even an Illustration to Section 133 which was the appropriate “substantive provision” pertaining to an “accomplice”. If we are to start with a presumption from “Illustration (b)” that every “accomplice” is unworthy of credit unless corroborated in material particulars, does it not militate against, if not neutralize and offend the “substantive provision” in Section 133 of the Evidence Act ? Even “Illustration (b)” which insist on corroboration on “material particulars” is next to impossibility on account of the total dearth of other evidence in such type of cases. It would be like “asking for the impossible” as mentioned by Justice K. M. Joseph in Somasundaram (Supra – (2020) 7 SCC 722).

The matter is made worse under Section 138 of BSA which is now made subservient to Illustration (b) to Section 119 BSA

13. It is strange and unfortunate that the Standing Committee of the Rajya Sabha in its 240^th Report has observed that there is a contradiction between “Illustration (b)” to Section 114 and Section 133 of the Evidence Act. There is absolutely no contradiction between the two. If at all there is such a view, it is solely attributable to the blunders made by the Judicial verdicts by reading the two provisions together without any justification. It was on the Standing Committee's recommendation that the age-old, time-tested and well accepted Section 133 of the Evidence Act has been statutorily overturned by the framers of BSA by enacting Section 138 thereof as follows –

“138. Accomplice

An accomplice shall be a competent witness against an accused person; and a conviction is not illegal if it proceeds upon the corroborated testimony of an accomplice.”

What exactly did the framers mean by the above deviation made from Section 133 of the Evidence Act ? Does it not make an “accomplice” an incompetent witness if the conviction proceeded the uncorroborated testimony of the “accomplice” ?

Duty of the legislator and the Judiciary and the consequence of dereliction of that duty

14. Traditionally, it is the province of the legislature to determine what is the best for the public good and to provide for it by suitable legislations. It is the province of the Judge to expound the law. In his essay, “On judicature”, Sir Francis Bacon, the great “Lord Chancellor”, “thinker” and “Philosopher”, had observed –

“Judges ought to remember that their office is “Jus dicere” (to declare or decide the law) and not “jus dare” (to give or make the law).”

According to Professor Vepa P. Sarathi, the great “jurist”, “researcher” and “author”, Sir Francis Bacon's opinion holds good only in a “monarchy” and not in a “democracy” where the better view is that – “whomsoever has an absolute authority to interpret any written or spoken law, it is he who is truly the “lawgiver” for all intents and purposes and not the person who first wrote or spoke it.”

Whatever may be the true role of the “law-maker” and the “Judge”, my humble submission, with due respect, is that the latter has failed miserably in interpreting the law governing accomplices, having regard to the purpose of helplessly bringing the accomplice to the witness-box.

MY CONCLUSION

15. Experience shows that in the majority of cases approvers and accomplices are disbelieved mainly for want of corroboration. The result is that notorious conspirators have gone unpunished. Now, with Section 138 of BSA on the statute book no conviction is possible on the uncorroborated testimony of an accomplice. Can any democratic society afford to allow such a state of affairs to be perpetrated ? “Illustration (b)” to Section 114 of the Evidence Act, as judicially interpreted, had done more harm than good to Section 133 of the Evidence Act although the insertion of the said “Illustration” in Section 114 was for a totally different purpose. Now, the framers of BSA have gone one step further by driving the last nail on the accomplices' coffin. This new provision under Section 138 of BSA will be a “boon for all conspirators” and a “nightmare for all victims” of organized crimes. Our nation has already suffered intra-country, inter-country and trans-border terrorism of the worst kind. Even under the old statutory regime really truthful accomplices were disbelieved for want of corroboration without the law insisting on the same. But now, the testimony of accomplice will never be accepted without sufficient corroboration which is a mirage, if not a virtual impossibility. Unmerited acquittals in “conspiracy cases” will hereafter be a regular feature emboldening the hard core criminals. Dishonestly obliging police officers will hereafter be busy manufacturing “tainted evidence” by way of fake corroboration calculated to secure sure acquittals for the conspirators. The Constitutional and statutory duty of every Judge in quest for truth, is to render justice without any “fear” or “favour” and “affection” or “ill will” rather than pleasing the conspirators with unmerited acquittals.

Author is Former Judge, High Court of Kerala. Views Are Personal.