Divan, J. - (1.) In support of its case against accused No. 1, the prosecution led the evidence of Mr. J. C. Trivedi, Inquiry Officer; and the prosecution relied upon the two statements made by accused No. 1 before Mr. Trivedi. The first statement was made on February 9, 1952 and that statement is Ex. 43 on the record. The other statement was made on February 22, 1958 and that statement is Ex. 42 on the record. According to the prosecution, Ex. 42 contained certain statements of self- inculpatory nature and amounted to a confession on the part of accused No. 1. It was urged before us that Ex. 42 was made by accused No. 1 in the course of the inquiry conducted by Mr. J. C. Trivedi when the evidence was recorded on oath and. therefore, this statement, Ex. 42, was hit by the provisions of Article 20(3) of the Constitution of India. We will first deal with the legal aspect of this matter before considering the contents of Ex. 42. As is well known, Article 20(3) provides against testimonial compulsion and lays down that no person accused of any offence shall be compelled to be a witness against himself. It was urged before us that looking to the nature of the inquiry before Mr. J. C. Trivedi, there was a compulsion on accused No. 1 to make that statement before Mr. J. C. Trivedi and, therefore, we cannot take the contents of Ex. 42 into consideration as that document was the result of some thing which was done contrary to the provisions of Article 20(3) of the Constitution of India.
(2.) In order to appreciate this argument, it is necessary to bear in mind that the inquiry before Mr. Trivedi was under Section 43(1) of the Bombay Co-operative Societies Act, 1925. That section provides as follows: "43. (1) The Registrar may of his own motion by himself or by a person duly authorised by him in writing in this behalf hold an inquiry into the constitution, working and financial condition of a society." The original order appointing either Mr. J. P. Parikh or Mr. J. C. Trivedi as the Inquiry Officer was not on record but at the request of the teamed counsel for the appellant we have allowed the original order, dated June 22, 1957 and the subsequent order, dated September 11, 1957, appointing Mr. J. C. Trivedi vice Mr. J. P. Parikh to be brought on record and the copies of these orders have been kept on the record of this case. The order, dated June 22, 1957, mentions that the appointing authority viz., the Assistant Registrar for Industrial Co-operatives, Baroda, had read the confidential letter of the Special Auditor, Co-operative Societies, regarding the working of this Society and also the letter of the Deputy Registrar for Industrial Co-operatives, Abmedabad; and after setting out various details the order says as follows: "The above happenings call for an exhaustive inquiry and a detailed investigation into the affairs of the Haveli Vibhag Co-operative Forest Labourers' Society Ltd., Taluka Lunawada, Under the circumstances, I Shri N. R. Kolhe, Assistant Director of Small Industries and Assistant Registrar for Induslrial Co-operatives, Baroda, hereby order an inquiry into the constitution, working and financial position of the Haveli Vibhag Cooperative Forest Labourers' Society Ltd., under Section 43(1) of the Bombay Cp-operalive Societies Act (VII of 1925), with special reference to the points noted above, and others that may come to notice of the Inquiry Officer during the course of Inquiry and on such other points which he deems necessary to investigate, with a view to bring to light the gross irregularities etc., if any, and also report cases of responsible persons which might be noticed by him." Then the order proceeds to appoint Mr. J. B. Parikh as the Inquiry Officer. The order, dated September 11, 1957, merely says that in partial modification of the earlier order, Mr. J. C. Trivedi was appointed Inquiry Officer vice Mr. J. P. Parikh to conduct the inquiry; and some directions were given to Mr. J. C. Trivedi in connection with the inquiry. Thus, the inquiry which was to be conducted by Mr. J. C. Trivedi was under the provisions of Section 43(1) of the Bombay Co-ope'rative Societies Act and was not an inquiry into the offences alleged against accused No.1. It was urged before us that in the inquiry before Mr. Trivedi, he accused was treated as a person against whom charges of criminal breach of trust and various other offences were made and, therefore, the inquiry before Mr. Trivedi was hit by the provisions of Article 20(3) of the Constitution. Mr. Bhatt on behalf of accused No. 1 orally applied before us that we should exercise the powers under Section 428, Cri. P. C. and that additional evidence should be recorded regarding what transpired in the course of the inquiry before Mr. Trivedi. We rejected that application because, in our opinion, no useful purpose would have been served by having fresh evidence recorded in connection with what transpired before Mr. Trivedi in the course of the inquiry. The scope of the inquiry before Mr. Trivedi was restricted to the provisions of Section 43(1) of the Bombay Co-operative Societies Act, 1925 as shown by the order appointing him. If the order appointing Mr. Trivedi had purported to say anything more than what was warranted by the language of Section 43(1) of the said Act, then the appointment of Mr. Trivedi and his conduct of the inquiry were open to a challenge. But as the language of the order, as we have set out above, indicates the inquiry to be conducted by Mr. Trivedi was within the four corners of Section 43 (1) of the said Act and, therefore, there was no point in allowing additional evidence to be led as regards this particular aspect.
(3.) What is meant by testimonial compulsion in Article 20(3) of the Constitution has now been settled by an authoritative pronouncement of the Supreme Court in the case of State of Bombay v. Kathi Kalu, AIR 1961 SC 1808. There a Bench of 11 Judges of the Supreme Court considered the scope of Article 20(3) in all its various aspects and the majority judgment was delivered by Sinha. C. S. on behalf of himself, Imam, Gajendragadkar, Subba Rao, Wanchoo, Raghubar Dayal, Rajagopala Ayyangar and Mudholkar, JJ.; whereas the minority judgment was delivered by Das Gupta, J. on behalf of himself, S. K. Das and A. K. Sarkar, JJ. At page 1816 in para 16, after considering the various authorities the majority judgment laid down certain conclusions seriatim and in conclusion No. (7) it was laid down as follows: "(7) To bring the statement in question within the prohibition of Article 20(3), the person accused must have stood in the character of an accused person at the time he made the statement. It is not enough that he should become an accused, any f time after the statement has been made.";