Co-Accused Can't Be Examined As Prosecution Witness Unless Made An Approver By Grant Of Pardon: Kerala High Court

The Kerala High Court recently held that a person arraigned as an accused can only be examined as a witness against the other accused in a trial relating to the same offence when the witness has been made an approver after granting pardon under Sections 306 or 307 of the Code of Criminal Procedure.A Division Bench of Justices Vinod Chandran and Ziyad Rahman observed that it is only under Section 315 that an accused could be examined as a witness for the defence in the trial and disprove the charges against him. In that situation, the protection under Article 20(3) does not apply; since the accused voluntarily mounts the box as a witness and there is no element of compulsion.However, it was also noted that Section 315 CrPC does not apply in the instant case as the disputed witness is not on trial and has already been convicted.Anticipating that allowing to examine the accused-convict as a witness might deprive him of the protection available to them because of a threat or enticement neither contemplated in the Cr. P.C nor envisaged in the scheme of criminal trials, the Court noted,"Law has provided a measure to the prosecution to meet a contingency where the assistance of one or more of the accused is necessitated for ensuring a successful prosecution, and that is the procedure contemplated under section 306 and 307 of Cr.P.C. Accordingly, they are not expected to adopt any other method than contemplated therein for achieving the said object."Factual Background The petitioner is the second accused in a case before the National Investigation Agency. The said application challenges an annexure to the order passed by the Special Court, allowing to examine an additional witness named Shahjahan, who is a co-accused to the petitioner. The said additional witness had been previously tried and convicted for the offences arising out of the same transaction as the present petitioner, punishable under sections 38, 39, and 40 of Unlawful Activities (Prevention) Act, 1967 and under sections 120B and 125 of Indian Penal Code.The specific case of the prosecution is that a criminal conspiracy was entered into by all the accused, including Shajahan; they associated themselves with an illegal terrorist organization ISIS/Daish, intending to further its activities by waging war against Syria, raised funds for furthering the activities thereof and attempted to travel to Syria following the call of ISIS//Daish to perform "Hijra" and for indulging in violent jihad.The prosecuting agency filed an application to examine Shahjahan as an additional witness, which was allowed by the impugned order by the Special Court.Advocate Vipin Narayan, appearing for the petitioner, argued that: (a) allowing a co-accused of the same offence to be examined as a witness would be against the basic tenants of criminal justice, i.e., an accused cannot be a witness against himself; (b) that the accused and the disputed witnesses are accomplices, and thus he cannot be allowed to testify unless he is made an approver under Section 306 of the Indian Penal Code; (c) allowing a co-accused to testify will cause serious prejudice to the defence.He brought the attention of the Court to Section 315 of Cr. P.C contemplates the circumstances under which an accused person can be permitted to be examined as a witness. The provision only contemplates an accused person to be a competent witness for the defence to disprove the prosecution case, and that too on the request of such accused in writing. Praying for the dismissal of the said order, the petitioner relied on Article 20 (3) of the Constitution of India, arguing that it encompasses within its larger ambit, protection from the evidence of an accused being used against the co-accused, unless as specifically enabled under the Cr.P.C.Additional Solicitor General P.Vijayakumar raised three contentions: (a) the application is not maintainable as it is an appealable order under Section 21 of the NIA Act; (b) Section 315 prohibits an 'accused' from being examined as a defence witness as the Special Court has convicted him; (c) Article 20 (3) encompasses protection from the evidence of an accused being used against the co-accused. Findings Of The CourtOn examining the facts and rival submissions, the Court noted that the entire proceedings against the petitioner here are akin to a 'split-up' trial based on the very same charge sheet. In such a situation, a co-accused cannot be examined as a witness, even if he was tried and convicted before the instant trial.MaintainabilityAccording to the petitioner, there is an appeal contemplated under section 21 of the National Investigation Agency Act, 2008, which was supposed to be filed within a period of 30 days. The appeal contemplated in the said provision is against a judgment, sentence or order, not being an interlocutory order ie: an order which has an element of finality to it.The Court noted that in this case, what is impugned is an order by which an additional witness...

Co-Accused Can't Be Examined As Prosecution Witness Unless Made An Approver By Grant Of Pardon: Kerala High Court

Shrutika Pandey

The Court also said that a person already convicted in the same case cannot be sought to be examined as an approver.

Tags