Supreme Court clarifies when a witness can be summoned as an accused in corruption cases (23 August 2017)

Can a person initially named as a witness be summoned as an accused later in a criminal trial? The Supreme Court of India addressed this crucial question in a case involving alleged corruption. The court clarified the circumstances under which a person, initially considered a witness, can be summoned as an accused. This judgment impacts how criminal trials proceed, especially in cases involving multiple suspects.

Citation: 2017 INSC 724

Judges: Adarsh Kumar Goel, J. and Uday Umesh Lalit, J.

Case Background

On February 12, 2015, the Anti-Corruption Bureau and Economic Offences Wing registered FIR No. 9/2015. The FIR alleged that a large amount of money, obtained through corruption, was recovered from the possession of several individuals. Initially, 27 people were named in the FIR. However, after investigation, a chargesheet was filed against only 16 individuals. These 16 individuals included senior officers of the Chhattisgarh State Civil Supplies Corporation.

During the investigation, statements of three individuals—Girish Sharma, Arvind Singh Dhruv, and Jeet Ram Yadav—were recorded under Sections 161 and 164 of the Code of Criminal Procedure (Cr.P.C.). These three were not named as accused in the chargesheet. Instead, they were listed as witnesses.

After the trial court took cognizance of the chargesheet, some of the accused filed applications under Sections 193 and 319 of the Cr.P.C. They requested that Girish Sharma, Arvind Singh Dhruv, and Jeet Ram Yadav be summoned as accused. The trial court rejected these applications. However, the High Court overturned the trial court’s decision and ordered their summoning. The High Court reasoned that the procedure under Section 306 of the Cr.P.C., which deals with granting pardon to an accomplice to make them a witness, was not followed.

Timeline

Course of Proceedings

The trial court initially rejected the applications to summon Girish Sharma, Arvind Singh Dhruv, and Jeet Ram Yadav as accused. The High Court, however, reversed this decision. The High Court’s primary reason was that the prosecution did not follow the procedure under Section 306 of the Cr.P.C. This section allows an accomplice to be made a witness after being granted a pardon. The High Court relied on the statements of the three individuals recorded under Sections 161 and 164 of the Cr.P.C., which indicated that some amount was recovered from their possession.

Legal Framework

The case involves several key sections of the Code of Criminal Procedure, 1973 (Cr.P.C.).

• Section 161 Cr.P.C.: This section allows a police officer to examine witnesses during an investigation.
• Section 164 Cr.P.C.: This section allows a magistrate to record statements and confessions made by individuals.
• Section 193 Cr.P.C.: This section deals with the cognizance of offenses by a Sessions Court.
• Section 306 Cr.P.C.: This section provides for the grant of pardon to an accomplice to make them a witness.
• Section 319 Cr.P.C.: This section empowers a court to proceed against any person who appears to be guilty of an offense during an inquiry or trial, even if they were not initially named as an accused.

The core issue revolves around whether the High Court was correct in summoning the three individuals as accused, especially when they were initially listed as witnesses and the procedure under Section 306 Cr.P.C. was not followed.

Arguments

The appellants, Girish Sharma, Arvind Singh Dhruv, and Jeet Ram Yadav, argued that Section 319 Cr.P.C. was not applicable in their case. They contended that the trial court had already declined to take cognizance against them. Therefore, the High Court should not have summoned them as accused.

They further argued that the investigator/prosecutor had made a conscious decision to use their evidence to secure convictions against the main accused, who faced more serious charges. The appellants also contended that the procedure under Section 306 Cr.P.C. was not the only way to use the evidence of an accomplice. They argued that their self-incriminating statements, made as proposed witnesses, should not be used against them. Further, they could be prosecuted separately later if needed.

The appellants relied on the judgment in Chandran @ Manichan @ Maniyan versus State of Kerala [(2011) 5 SCC 161], to support their argument that the prosecution can use an accomplice as a witness without granting them pardon under Section 306 of the Cr.P.C.

The respondent, Kaushal Kishore Yadu, conceded that Section 319 Cr.P.C. might not be applicable at this stage. However, they argued that the prosecutor’s decision not to array a person as an accused is not final. The court can take cognizance based on the available material.

Issues Framed by the Supreme Court

The Supreme Court did not explicitly frame issues in a separate section. However, the core issue was:

1. Whether the High Court was correct in summoning Girish Sharma, Arvind Singh Dhruv, and Jeet Ram Yadav as accused under Section 319 of Cr.P.C., when they were initially cited as witnesses in the chargesheet and the procedure under Section 306 of Cr.P.C. was not followed?

Treatment of the Issue by the Court

The following table demonstrates how the Court dealt with the issue:

Authorities

The Supreme Court considered the following authorities:

• Chandran @ Manichan @ Maniyan versus State of Kerala [(2011) 5 SCC 161] – Supreme Court of India

  The Court relied on this case to support the proposition that the prosecution can cite an accomplice as a witness without granting them pardon under Section 306 of the Cr.P.C. The Court held that the procedure under Section 306 is not the only way to rely on the evidence of an accomplice.

Judgment

The Supreme Court held that the High Court’s decision to summon the appellants as accused was not based on a proper assessment of the interest of justice. The High Court focused solely on the existence of incriminating material against the appellants. It did not consider the potential value of their testimony as witnesses. The Supreme Court emphasized that the prosecution could cite an accomplice as a witness without following the procedure under Section 306 Cr.P.C. The decision of the prosecutor to cite them as witnesses does not bind the Court and such decision can be interfered with if interest of justice so requires.

The court also noted that the High Court had not considered whether rejecting the prosecution’s proposal to cite the appellants as witnesses would jeopardize the case against the more serious accused. The Supreme Court set aside the High Court’s order and remanded the matter for fresh consideration. The High Court was directed not to consider the statements made by the appellants under Sections 161 and 164 Cr.P.C. as proposed witnesses.

The Supreme Court also took note of the fact that the charges had already been framed and four witnesses had been examined. The High Court was directed to consider this factor while deciding whether to interfere with the trial court’s decision.

The court directed the parties to appear before the High Court on September 4, 2017, and requested the High Court to deal with the matter expeditiously.

What weighed in the mind of the Court?

The Supreme Court’s decision was primarily influenced by the need to ensure a fair trial and the larger interest of justice. The Court emphasized that the High Court had not properly balanced the need to have the appellants as accused against their potential value as witnesses. The Court also noted the importance of the prosecution’s discretion in determining who should be cited as a witness.

The Court was also concerned that the High Court’s decision was based on an erroneous assumption that an accomplice could not be cited as a witness without following the procedure under Section 306 Cr.P.C. The court also considered that the trial had already progressed significantly, with charges framed and four witnesses examined.

The Supreme Court stated:

“The submission made on behalf of the appellants that the prosecution was entitled to cite the three original accused as witnesses, in the given fact situation, having regard to larger interest of justice to strengthen the prosecution case against more serious accused cannot be held to be without substance.”

“It is certainly open to the Court to finally decide whether cognizance ought to be taken or not after balancing all the relevant considerations.”

“The decision of the prosecutor to cite them as witnesses does not bind the Court and such decision can be interfered with if interest of justice so requires.”

Key Takeaways

• The prosecution has the discretion to cite an accomplice as a witness without granting them a pardon under Section 306 of the Cr.P.C.
• The court can interfere with the prosecution’s decision if it is not in the interest of justice.
• The court must balance the need to have a person as an accused against their potential value as a witness.
• Statements made by proposed witnesses under Sections 161 and 164 Cr.P.C. should not be considered against them when deciding whether to summon them as accused.

Directions

The Supreme Court directed the High Court to reconsider the matter, keeping in mind the following:

• The High Court should not take into account the statements made by the appellants under Sections 161 or 164 Cr.P.C. as proposed witnesses.
• The High Court should consider whether rejecting the prosecution’s proposal to cite the appellants as witnesses would jeopardize the case against the more serious accused.
• The High Court should consider that the charges have already been framed and four witnesses have been examined.

Development of Law

The ratio decidendi of this case is that the prosecution has the discretion to cite an accomplice as a witness without granting them a pardon under Section 306 of the Cr.P.C. The court can interfere with the prosecution’s decision if it is not in the interest of justice. This judgment clarifies the procedure for using accomplice evidence in criminal trials. It also emphasizes the importance of balancing the interests of justice.

Conclusion

The Supreme Court’s judgment in this case clarifies the circumstances under which a person initially named as a witness can be summoned as an accused. The Court emphasized that the prosecution has the discretion to cite an accomplice as a witness without granting them a pardon under Section 306 of the Cr.P.C. The Court also emphasized the importance of balancing the need to have a person as an accused against their potential value as a witness. The matter was remanded to the High Court for fresh consideration.