BALASAHEB @ RAMESH LAXMAN DESHMUKHversusSTATE OF MAHARASHTRA & ANR.

                  [2010] 13 (ADDL.) S.C.R. 1190


A       BALASAHEB @ RAMESH LAXMAN DESHMUKH
                              v.
             STATE OF MAHARASHTRA & ANR.
               (Civil Appeal No. 1043 of 2002)
                       DECEMBER 07, 2010
B
       [HARJIT SINGH BEDI AND CHANDRAMAULI KR.
                      PRASAD, JJ.)

        Constitution of India, 1950 - Article 20(3) - Protection
C under - Police case wherein appellant not an accused but
  asked to depose as a witness - Filing of complaint case in
  relation to same incident later on wherein appellant figuring
  as accused - Appellant seeking protection under Article
  20(3) - Held: Not entitled - Protection under Article 20(3) does
D not extend to all kinds of evidence but only to self-
  incriminating statements relating to charges brought against
  accused - For invoking constitutional right under Article 20(3),
  formal accusation against the person claiming the protection
  must exist - Merely because the appellant figures as
E accused in the complaint case, a blanket protection cannot
  be granted.

       The appellant was asked to depose as a witness in
  a police case. Thereafter, a complaint case was filed in
  relation to the same incident. The appellant was named
F as an accused in the complaint case. The Magistrate in
  sesin of the trial was directed to conclude the trial. The
  appellaht was to be examined as a witness. The appellant
  challenged the same. The Magistrate held that the
  prosecution could not examine the appellant as a witness
G in the Police case. The responde!lt-State filed a revision
  application. The High Court allowed the application and
  set aside the order of the Magistrate holding that no such
  blanket protection could be given to the appellant under

H                               1190
BALASAHEB@ RAMESH LAXMAN DESHMUKH v. STATE1191
             OF MAHARASHTRA

Article 20(3) of the Constitution of India, 1950. Therefore,   A
the appellant filed the instant appeal.

    Dismissing the appeal, the Court
     HELD: 1.1 The protection under Article 20(3) of the
Constitution of India, 1950 does not extend to all kinds B
of evidence but only to self-incriminating statements
relating to the charges brought against an accused. In
order to bring the testimony of an accused within the
prohibition of constitutional protection, it must be of such
character that by itself it tends to incriminate the accused. C
However, in case of trial in the police case answer to a
certain question if tends to incriminate the appellant he
can seek protection at that stage. Whether answer to a
question is incriminating or otherwise has to be
considered at the time it is put. [Para 5] [1195-F-H; 1196- D
A-B]
     1.2 For invoking the constitutional right under Article
20(3) a formal accusation against the person claiming the
protection must exist. Simply because the appellant E
figures as the accused in the complaint case, a blanket
protection as claimed by him cannot be granted. In the
Police case, he utmost can be asked to support the case
of the prosecution but no question intended to
incriminate him can be asked and in case it is done, the
protection under Article 20(3) of the Constitution would F
spring into action. What question should be put to the
appellant when he appears as a witness is a matter of
guess and on that basis he does not deserve the blanket
protection under Article 20(3) of the Constitution. [Paras
6 and 9] [1196-E; 1198-D-G]                                  G

     1.3 The appellant is not an accused in the police case
but, in fact, is a witness, whose statement was recorded
under Section 161 of the Code of Criminal Procedure,
1973. Therefore, at this stage the blanket protection          H
    1192 SUPREME COURT REPORTS (201 O] 13 (ADDL.) S.C.R.


A   sought by the appellant is not fit to be granted. [Paras 5
    and 9] [1195-G-H; 1198-G]

         State of Bombay vs. Kathi Kalu Oghad AIR 1961 SC
    1808; Ramanal Bhogi/al Shah and Anr. vs. D:K. Guha and
B   Ors. (1973) 1 SCC 696; Raja Narayan/al Bansi/a/ v. Maneck
    Phiroz Mistry and Anr. AIR 1961 SC 29 - referred to.

        Nandini Satpathy vs. P. L. Dani and Anr. (1978) 2 SCC
    424 - distinguished.

c                        Case Law Reference:
      (1973) 1 sec 696           Referred to         Para 4, 7
      AIR 1961 SC 1808           Referred to         Para 5
      AIR 1961 SC 29             Referred to         Para 6
D
      (1978) 2 sec 424           Distinguished       Para 8

        CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
    No. 1043 of 2002.

E       From the Judgment & Order dated 27.4.2001 of the High
    Court of Judicature of Bombay, bench at Aurangabad in
    Criminal Revision Application No. 268 of 2001.

        M.Y. Deshmukh, Shivaji M. Jadhav for the Appellant.
F       Manisha Pitale, Sanjay V. Kharde, Asha Gopalan Nair,
    Vimal Chandra S. Dave for the Respondents.

        The Judgment of the Court was delivered by

G       CHANDRAMAULI KR. PRASAD, J. 1. The short but
    important question of law which falls for our determination in
    the present appeal is as to whether protection under Article
    20(3) of the Constitution is available to the appellant, who
    though not an accused in the police case in which he has been
H
BALASAHEB@ RAMESH LAXMAN DESHMUKH v. STATE1193
 OF MAHARASHTRA [CHANDRAMAULI KR. PRASAD, J.]

asked to depose as a witness but figures as an accused in the      A
complaint case filed later on in relation to the same incident.

      2. Bereft of unnecessary details, the facts necessary for
determination of the aforesaid question are that informant
Charudatta Pawar is alleged to have been assaulted by four         B
persons in a Hotel in the night between 25th and 26th of April,
1996 and on the basis of the report given by him CR No.102/
1996 was registered at Chalisgaon Police Station. During the
investigation the appellant figured as a witness and his
statement was recorded under Section 161 of the Code of
Criminal Procedure. After investigation Chalisgaon Police
                                                                   c
Station submitted chargesheet against 4 accused persons
named in the first information report on 24.5.1997. The said
case, hereinafter referred to as the police case, is pending for
trial before Judicial Magistrate, First Class, Chalisgaon. In
regard to the same incident which is the subject matter of the     D
trial in the aforesaid Police case, a complaint was filed
impleading the appellant herein besides five other persons as
accused. Appellant figures as accused No.6 in the complaint
case and according to the allegation he conspired with other
accused in commission of a crime. In this case, hereinafter        E
referred to as the complaint case the Judicial Magistrate took
cognizance of the offence and issued process by order dated
2nd February, 1998 against the four accused who were already
chargesheeted in the police case and three other accused
including the appellant herein. By an order of the Bombay High     F
Court dated 26th April, 1999 both the criminal cases i.e. police
case and complaint case were directed to be tried and decided
simultaneously. The Bombay High Court further directed the
 Magistrate in sesin of the trial to conclude the trial within
stipulated time.                                                   G
    3. The appellant filed an application before the learned
Magistrate in sesin of the Police case objecting his examination
as witness, inter alia, contending that in view of the
Constitutional protection guaranteed under Article 20(3) of the
                                                                   H
    1194 SUPREME COURT REPORTS [2010] 13 (ADOL.) S.C.R.


A   Constitution of India, he cannot be compelled to be a witness
    in the case as he himself is an accused in relation to the same
    incident in the complaint case. The learned Magistrate by its
    order dated 5th September, 2000 allowed the application and
    observed that the prosecution cannot examine the appellant as
B   a witness in the Police case. The State of Maharashtra
    aggrieved by the aforesaid order filed Criminal Revision
    Application No.268 of 2000 before the Bombay High Court
    which by its order dated 27th April, 2001 allowed the application
    and set aside the order of the learned Magistrate, inter alia,
c   obse..Ving that no such blanket protection can be given to the
    appellant. Relevant portion of the judgment of the High Court
    reads as follows:

               "10. To. sum up, witness Balasah1tb @ Ramesh
        Laxman Deshmukh is not an accused in CC NO. 97/96 in
D         pite of accusations against him in the deposition of
        complainant Charudatta (Esh.142) and admission of
        complainant dated 26.4.1996 (Exh.143) which are pieces
        of evidence relevant in C.C.No.3/98, since he is not
        charged by the charge framed in that case. Therefore, even
E       if he is compelled to depose as a witness in C.C. No. 97/
        96 that can not be said to be compulsion to give evidence
        against himself. Moreover, by virtue of proviso to Section
        132 of Indian Evidence Act, he is protected from use of
        self incriminating statements against him, in any other
F       proceeding inclurJing C.C. No.3/98.

            •The blanket protection granted by Magistrate vide his
        order dated 5.9.2000 can do, therefore, be sustained."

       4. Mr. M.Y. Deshmukh, learned Counsel appearing on
G behalf of the appellant contends that the appellant being an
  accused in the complaint case cannot be compelled to give
  evidence against himself in the Police case. It is pointed out
  that Article 20(3) of the Constitution contemplates that no
  person, accused of any offence, shall be compelled to be a
H witness against himself. It is emphasised that the appellant is
BALASAHEB @ RAMESH LAXMAN DESHMUKH v. STATE 1195
 OF MAHARASHTRA [CHANDRAMAULI KR. PRASAD, J.]

not an accused in the Police case but in relation to the same        A
incident in the complaint case he figures as an accused and,
therefore, he is entitled to the protection under Article 20(3) of       '·
the Constitution. In support of the submission reliance has been
placed on· a decision of this Court in the case of Ramanal
Bhogilal Shah & Another vs. D.K. Guha & Others, (1973) 1             B
sec 696, and our attention has been drawn to paragraph 22
of the judgment which reads as follows:

           "22. The Additional Solicitor-General says that the
     petitioner had not been specifically named as accused in
     the first information report and, therefore, he is not entitled C
     to the protection under Article 20(3). We are unable to
     agree with him in this respect. The petitioner was the
     General Manager of the United Commercial Bank and it
     was alleged in the grounds of arrest that the petitioner was
     in charge of, or was responsible to the United Commercial D
     Bank Ltd. for the conduct of the business of the said Bank,
     and that he failed to prove in course of his statements
     made under Section 19-F before Shri D.K. Guha, Deputy
     Director of Enforcement that the contravention took place
     without his knowledge or that he exercised all due E
     diligence to prevent the aforesaid contravention, as
     required under Section 23-C of the Exchange Act."

     5. At the first blush we were inclined to accept this
submission but on a deeper scrutiny we find no substance in it       F
and the decision relied on instead of supporting his case, goes
against him. Protection under Article 20(3) of the Constitution
does not extend to any kind of evidence but only to self-
incriminating statements relating to the charges brought against
an accused. In order to bring the testimony of an accused within     G
the prohibition of constitutional protection, it must be of such
character that by itself it tend to incriminate the accused.
Appellant is not an accused in the Police case and in fact a
witness, whose statement was recorded under Article 161 of
the Criminal Procedure Code, and, therefore, not entitled to a
                                                                     H
    1196 SUPREME COURT REPORTS [201 OJ 13 (ADDL.) S.C.R.


A   blanket protection. However, in case of trial in the Police case
    answer to certain question if tends to incriminate the appellant
    he can seek protection at that stage. Whether answer to a
    question is incriminating or otherwise has to be considered at
    the time it is put. Reference.in this connection can be made to
s   a decision of this Court in the case of State of Bombay vs.
    Kathi Kalu Oghad, AIR 1961 SC 1808, wherein it has been
    held as follows:

               "In order that a testimony by an accused person may
         be said to have been self-incriminatory the compulsion of
c        which comes within the prohibition of the constitutional
         provision, it must be of such a character that by itself it
         should have the tendency of incriminating the accused, if
         not also of actually doing so. In other words, it should be a
         statement which makes the case against the accused
D        person at least probable, considered by itself."

          6. We are of the opinion that for invoking the constitutional
    right under Article 20(3) a formal accusation against the person
    claiming the protection must exist. Simply because the appellant
E   figures as the accused in the complaint case, a blanket
    protection as claimed by him cannot be granted. Reference in
    this connection can be made to a decision of this Court in the
    case of Raja Narayan/al Bansi/al v. Maneck Phiroz Mistry and
    Another, AIR 1961 SC 29, wherein it has been held as follows:
F       "The effect of this decision thus appears to be that one of
        the essential conditions for invoking the constitutional
        guarantee enshrined in Article 20(3) is that a formal
        accusation relating to the commission of an offence, which
        would normally lead to his prosecution, must have been
G       levelled against the party who is being compelled to give
        evidence against himself; and this conclusion, in our
        opinion, is fully consistent with the two other decisions of
        this Court to which we have already referred.

H        7. Referring to the decision of this Court in the case of
BALASAHEB @ RAMESH LAXMAN DESHMUKH v. STATE1197
 OF MAHARASHTRA [CHANDRAMAULI KR. PRASAD, J.]

Raman/a/ Bhogilal Shah (supra), relied on by the appellant,          A
the same in spite of supporting his case goes against him which
would be evident from the following paragraph of the said
judgment:

          "24. Although we hold that the petitioner is a person
                                                                B
    accused of an offence within the meaning of Article 20(3),
    the only protection that Article 20(3) gives to him is that
    he cannot be compelled to be a witness against himself.
    But this does not mean that he need not give information ·
    regarding matters which do not tend to incriminate him.
                                                                     c
      8. Mr. Deshmukh, then contends that the protection under
Article 20(3) goes beyond the complaint case but shall cover
the Police case also because appellant is an accused in
relation to the same incident and the trial is pending in the said
case. Reliance has been placed on a decision of this Court in        D
the case of Nandini Satpathy vs. P.L Dani & Another, (1978)
2 sec 424, and our attention has been drawn to paragraph
57 of the judgment which reads as follows:

             "57. We hold that Section 161 enables the police to
                                                                     E
     examine the accused during investigation. The prohibitive
     sweep of Article 20(3) goes back to the stage of police
     interrogation - not, as contended, commencing in court
     only. In our judgment, the provisions of Article 20(3) and
     Section 161(1) substantially cover the same area, so far
     as police investigations are concerned. The ban on self-        F
     accusation and the right to silence, while one investigation
     or trial is under way, goes beyond that case and protects
     the accused in regard to other offences pending or
     imminent, which may deter him from voluntary disclosure
     of criminatory matter. We are disposed to read "compelled       G
     testimony" as evidence procured not merely by physical
     threats or violence but by psychic torture, atmospheric
     pressure, environmental coercion, tir>j.ag interrogative
     prolixity, overbearing and intimidatory mettlods and the like
     - not legal penalty for violation. So, th_e legal perils        H
           ,4.
    1198 SUPREME COURT REPORTS (201 O] 13 (ADDL.) S.C.R.


A     ·\ following upon refusal to answer, or answer truthfully, cannot
         be regarded as compulsion within the meaning of Article
         20(3). The prospect of prosecution may lead to legal
         tension in the exercise of a constitutional right, but then, a
         stance of silence is running a calculated risk. On the other
B        hand, if there is any mode of pressure, subtle or crude,
         mental or physical, direct or indirect, but sufficiently
         substantial, applied by the policeman for obtaining
         information from an accused strongly suggestive of guilt,
         it becomes "compelled testimony", violative of Article
c        20(3)."                            .

          We do not find any substance in this submission of the
    learned Counsel and the decision relied on is clearly
    distinguishable.

D       9. As observed earlier the appellant is not an accused in
  the Police case and in fact a witness whose statement was
  recorded during the course of investigation under Section 161
  of the Code of Criminal Procedure. In the Police case he utmost
  can be asked to support the case of the prosecution but no
E question intented to incriminate him can be asked and in case
  it is done the protection under Article 20(3) of the Constitution
  shall spring into action. What question shall be put to this
  appellant when he appears as a witness is a matter of guess
  and on that basis he does not deserve the blanket protection
F under Article 20(3) of the Constitution. Even at the cost of the
  repetition we may observe that in the Police case when he
  appears and asked to answer question, the answer whereof
  tends to incriminate him, he can refuse to answer the same
  pleading protection under Article 20(3) of the Constitution. In
G such eventuality the Court would decide the same. Therefore,
  at this stage the blanket protection sought by the appellant is
  not fit to be granted.

      10. As regards the authority of this Court in the case of
  Nandini Satpathy (supra) the same has no bearing in the facts
H and circumstances of this case. There the question was as to
BALASAHEB @ RAMESH LAX.MAN DESHMUKH v. STATE 1199
 OF MAHARASHTRA [CHANDRAMAULI KR. PRASAD, J.]

whether the protection under Article 20(3) of the Constitution         A
shall apply at the stage of Police interrogation and in answer
thereto this Court held that it shall go back to the stage of Police
interrogation and not in Court only.

     11. As the trial is pending since long, the learned
                                                                       8
Magistrate in sesin of the trial shall make endeavour to dispose
of the same expeditiously, preferably within a period of six
months from the date of receipt of a copy of this order.

      12. In the result, we do not find any merit in the appeal and
it is dismissed accordingly with the observation aforesaid.            C

N.J.                                          Appeal dismissed.