- (1.) This is an appeal against the judgment and order of the High Court of Nagpur confirming the decision of the Special Magistrate disallowing the application of the appellant to give evidence as a witness under s. 342-A of the Criminal Procedure Code.
(2.) The Advocate-General of Madhya Pradesh, on 13-1-1953, filed a complaint against the appellant and three others under S. 282 of the Indian Companies Act and sections 465 and 477-A of the Indian Penal Code. The proceedings commenced in 1954 before a Magistrate but on 18-5-1955, they were transferred to a Special Magistrate who commenced the recording of evidence on 4-7-1955. On August 12, 1955, the Criminal Procedure Code (Amendment) Act (26 of 1955) received the assent of the President and came into force on 2-1-1956. In this judgment it will be referred to as the Amending Act and the Code of Criminal Procedure as the Code. On 14-1-1956, the appellant made an application to the Magistrate claiming the right to appear as a witness on his own behalf under S. 342A of the amended Code "in disproof of the charges made against him". His application was dismissed and so was his revision to the High Court of Nagpur which held : "While it must be conceded that the wording of clause (c) as also the other clauses of S. 116 of the amending Act could have been put in simpler and more direct language, its ingenuous circumlocution cannot be allowed to cloak its true meaning or to permit the construction which the applicant seeks to put upon it. The language used does not justify holding that when the statute says "this Act" it means only "some of the provisions of this Act". Thus the High Court was of the opinion that the proceedings pending before the Special Magistrate would be according to the procedure laid down in the unamended Code and the appellant could not therefore appear as a witness under S. 342A of the amended Code.
(3.) According to the provisions of the unamended Code an accused person could not appear as a witness in his defence although for the purpose of enabling him to explain circumstances appearing in the evidence against him the Court could put such question as it considered necessary. Section 118 of the Evidence Act deals with persons who are competent to testify as witnesses but in view of S. 342 of the unamended Code no accused person could appear as a witness and therefore S. 118 was inapplicable to such persons. Article 20(3) of the Constitution provides that no person accused of an offence shall be compelled to be a witness against himself and S. 342A was inserted into the Code by S. 61 of the amending Act. It provides : S. 342A : "Any person accused of an offence before a Criminal Court shall be a competent witness for the defence and may give evidence on oath in disproof of the charges made against him or any person charged together with him at the same trial : Provided that (a) he shall not be called as a witness except on his own request in writing; or (b) his failure to give evidence shall not be made the subject of any comment by any of the parties or the Court to give rise to any presumption against himself or any person charged together with him at the same trial". Thus the law was amended and the accused person has become a competent witness for the defence but he cannot be compelled to be a witness and cannot be called as a witness except at his own request in writing and his failure to give evidence cannot be made the subject matter of comment by the parties or the Court.;