S.K. Ray, J. -
(1.) THE Petitioner in both these cases in the Ex -Chief Minister of Orissa against whom vigilance Police Case No. 22 of 1977 has been instituted under Section 5(2) read with Section 5(1)(d) and (e) of the Prevention of Corruption Act and under Sections 161/165/120 -B/109, Indian Penal Code on the basis of an F.I.R. lodged by I.O., Shri Dani, D.S.P., Vigilance 'Opp. party No. 1. at the Cuttack Vigilance Police Station. She I was granted anticipatory ball by the Sessions Judge on 15 -9 -1977 on condition that she would attend the Court of the Chief Judicial Magistrate, Cuttack and would appear at the vigilance Police Station for interrogation when called upon to do so. This order was passed when the Petitioner was on tour in. Europe. On her return she was arrested at New Delhi on 17 -9 -1977 and was released on bail. Opp. Party No. 1, the I.O. wrote to the Petitioner on 8 -10 -1977 directing her to attend the Vigilance Police Station for interrogation. The Petitioner replied on 10 -10 -1977 that this requirement to attend the Police Station was contrary to law, but, nevertheless, she was willing to attend the Police Station, but pleased that she was not inclined to make any statement whatsoever. The Petitioner was further asked to appear on 11 -10 -1977 at the Police Station for further interrogation in relation to the Case under the Prevention of Corruption Act. The Petitioner appeared at the Police -station on 13 -10 -1977 but refused to make any statement claiming privilege under Article 20(3) of the Constitution of India. She also handed over a letter on the same day to the I.O. reiterating her stand on Article 20(3) of the Constitution that she should not be coerced to answer the question. Thereupon O.P. No. 1 filed a complaint under Section 179, Indian Penal Code against the Petitioner for declining" to answer his questions in the Court of the Sub -Divisional Judicial Magistrate, Sadar, Cuttack. This complaint was registered as Complaint case No. 2(c) 388 of 1977 and the Magistrate took cognizance and issued summons against her by his order dated 1 -11 -1977.
(2.) THE Petitioner being aggrieved by that order of the Magistrate has filed the aforesaid writ application and the Criminal Revision, both of which were heard together and will be governed by this judgment. Mr. Rath, the learned Counsel for the Petitioner, has raised three main contentions:
(a) The Petitioner being a person accused of an offence in Vigilance Police Case No. 22 of 1977 is not under any legal obligation under Section 161, Code of Criminal Procedure to answer truly all questions relating to such case, put to her by the I.O., The ingredients of Section 179, Indian Penal Code "being legally bound to state the truth on any subject to any public servant, refuses to answer any question demanded of him touching that subject by such public servant in the exercise of the legal powers of such public servant", are therefore, not satisfied in the present case. The impugned order of the Magistrate issuing summons under Section 179, Indian Penal Code is therefore, liable to be quashed.
(b)The prosecution of the Petitioner under Section 179, Indian Penal Code constituted gross infringement of Article 20(3) of the Constitution which provides that "No person accused of any offence shall be compelled to be a witness against himself" inasmuch as, the consequence of such prosecution is to compel the Petitioner to speak the truth before the I.O. which is prohibited by the aforesaid Article.
(c)Conceding for the sake of argument that Section 161(2), Code of Criminal Procedure casts an obligation on the Petitioner to answer questions put by the police, a plea of constitutional protection under Article 20(3) of the Constitution constitutes a reasonable excuse for not answering the questions. As such, there is no mens rea and no Intensional violation of any law. Similarly, if questions are not answered on the plea of incrimination, there is also no violation of Section 161(2), Code of Criminal Procedure and no offence can be said to have been committed. It was the duty of the Magistrate before taking cognizance to apply his mind to the defence plea as expressly stated in the complaint petition and his omission to do so amounts to improper exercise of jurisdiction and abuse of process of Court.
1. The first contention is now taken upfor consideration. It must be stated at the outset that the Petitioner has not impeached the constitutional validity of Section 161, Code of Criminal Procedure or of Section 179, Indian Penal Code and there is no prayer to declare those sections or any part thereof as ultra vires the Constitution. There is also no dispute that an accusation has been levelled against the Petitioner in the F.I.R. Dated 3 -9 -1977 (Vigilance Police Case No. 22 of 1977) and that she was arrested in connection with that case on 17 -9 -1977 and was released on bail. Nor is there any controversy that the Petitioner claimed constitutional protection under Article 20(3) of the Constitution in declining to answer questions put to her by the I. O. relating to the Criminal Charges against her. The principal question for adjudication is interpretation of Section 161, Code of Criminal Procedure with particular reference to the meaning and Import of the expression "any person" contained therein. Mr. Rath's contention is that the expression "any person" in Section 161, Code of Criminal Procedure does not include an accused person and only refers to "witnesses" as is indicated in the original note to that section.
Section 161, Code of Criminal Procedure is extracted herein below:
161. Examination of witnesses by Police: (1) Any police officer making an investigation under this Chapter, or any police Officer, not below such rank as the State Government may, by general or special order, prescribe in this behalf, acting on the requisition of such officer, may examine orally any person supposed to be acquainted with the facts and circumstances of the case.
(2) Such person shall be bound to answer truly all questions relating to such case put to him by such officer, other than questions, the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture.
(3) The police officer may reduce into writing any statement made to him in the course of an examination under this section; and if he does so, he shall make a separate and true record of the statement of each such person whose statement he records.
Mr. Rath's contention substantially is that the controlling key to the meaning of Section 161, Code of Criminal Procedure its marginal note which must be referred to in construing the section. The law is well settled by the highest Court of the land as also by the Privy Council that the marginal Note to a section in the Statute" cannot control the plain words of the statute but they may explain ambiguous words. If there is any doubt in the interpretation of the words in the section the heading certainly helps the Court to resolve that doubt". See the case of Bhinka v. Charan Singh : A.I.R. 1959 S.C. 960. The Privy Council in the case of Thakurani Balaraj Kunwar v. Rae Jagatpal Singh, 31 I.A. 132s, said:
It is well settled that marginal notes to the section of any Act of Parliament cannot be referred to for the purpose of construing the Act. The contrary opinion originated in a mistake, and it has been exploded long ago. There seems to be no reason for giving the marginal notes in an Indian Statute any greater authority than the marginal notes in an English act of Parliament.
The language of the different Sub -sections of Section 161, Code of Criminal Procedure is very plain and there does not appear to be any ambiguity therein. Accordingly, in deriving the meaning of different clauses of that section" resort cannot be had to the marginal note or heading. The expression "any person" is of wide and generic import. In the absence of anything in the Section itself or any other external compelling reasons the, expression "any person" cannot be construed narrowly so as to exclude an accused person from its ambit.
(3.) THE provision of this section had come for judicial interpretation in a string of cases of various High Courts in India as also the Privy Council and of the Supreme Court. The consensus is in favour of the view that the expression "any person" includes an accused person as will be shown by a discussion of various cases hereunder.;