ARUN GANESH PHANSALKAR Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THESE two applications arise out of Session Trial No. 14 of 1973 in which 44 accused persons from village Erangaon in Tahsil Saoner. District Nag-pur are being tried on the allegations that they committed the murder of one Ramdas on 11-8-1972. Dr. Arun Ganesh Phansalkar, applicant in Criminal Application No. 257, who is an Assistant Surgeon at the Health Unit Hospital Saoner, is alleged to have carried out the post-mortem examination of the dead body of deceased Ramdas at Saoner. Head Constable Mohboobkhan son of Mohammad Khan, applicant in Criminal Application No. 261 of 1973, is alleged to have made the inquest panchanama and the spot panchanama when the dead body of the deceased was taken out from a well. The prosecution at the trial examined several witnesses. Both the applicants were cited as witnesses but were not examined by the prosecution, because, according to them, the two witnesses were hostile to the prosecution Therefore, after evidence of all the witnesses examined by the prosecution was recorded, the prosecution filed an application before the learned Additional Sessions Judge praying that these two witnesses should be examined as Court witnesses, because their evidence was essential for a just decision of the case. On this application the Additional Sessions Judge passed an order issuing summonses to the two applicants for their examination as Court witnesses. The learned Judge took the view that the evidence of both these witnesses was essential and that since some doubt was thrown on their conduct they would also set an opportunity to explain their conduct before reaching any decision as regards the correctness or otherwise of the post-mortem report and inquest panchnama. It may be stated that the prosecution has already filed charge-sheets against both these witnesses for offences under Sections 201 and 218 of the Indian Penal Code because, according to the prosecution these witnesses had suppressed facts with the intention of screening the offenders from legal punishment. The learned Judge observed in his order that since both these witnesses were facing trial in sister cases they would be entitled to object to answering such question as may tend directly or indirectly to incriminate them, and that if they were compelled to give answers to such Questions no such answers shall be proved against them in any criminal proceeding including Sessions Trial Nos. 23 and 47 of 1973.

(2.) IT appears that after summonses were isued for these two witnesses, they claimed protection against testimonial compulsions under Article 20 (3) of the Constitution of India. It was contended before the Additional Sessions Judge that they could have been prosecuted along with the 44 accused persons in a joint trial and that by compelling them to give evidence in the trial against these 44 persons, the guarantee under Article 20 (3) would be violated. The learned Additional Sessions Judge relying on the decision of the Supreme Court in Laxmipat Choraria v. State of Maharashtra held that the protection under Article 20 (3) was available only to an accused and not to witnesses and there was no constitutional bar in examining the two applicants as Court witnesses. When it was contended before the learned Judge that the statements which the two applicants would be required to make while giving evidence were likely to prejudice their defence in the trial for the offences with which they were charged the learned Judge held that there was sufficient protection in the proviso to Section 132 of the Evidence Act. In the order the learned Judge also again made it clear that both the witnesses were entitled to object to answer such questions as may tend directly or indirectly to incriminate them, that if they were compelled to give answers to such questions no such answers shall be proved against them in any criminal proceeding and in particular in Sessions Trials Nos. 23 and 47 of 1973 and that the evidence in the Sessions Trial could in no wav be read as evidence in the separate trials against the two witnesses. Both the applicants have now filed these two revisions applications challenging the order passed by the Additional Sessions Judge rejecting the objections that the applicants could not be examined as witnesses.

(3.) COMMON arguments were advanced in both the cases. The only argument advanced on behalf of the applicants was that the words of Article 20 (3) of the Constitution of India do not restrict the protection against self-in-crimination only in respect of the proceeding in which the person claiming the protection is accused of an offence and it is argued on the authority of Charles Counselman v. Frank Hitchcock. (1890-91) 35 Law Ed 1110 that the protection under Article 20 (3) is available even where a person against whom a prosecution is pending appears as a witness in another case and according to the learned Counsel even in Session Trial No. 14 of 1973 which is against the 44 accused persons the applicants cannot be asked to give evidence and answer questions which are likely to incriminate them.