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Hasmukh Balubhai Shah Vs. State of Maharashtra and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Case NumberCriminal Writ Petition No. 240 of 1983
Judge
Reported in1985(2)BomCR469
ActsEvidence Act, 1872 - Sections 115, 123, 124, 125, 126 and 214; Indian Penal Code (IPC) - Sections 120B, 409 and 477B; Essential Commodities Act - Sections 7; Code of Criminal Procedure (CrPC) - Sections 173;
AppellantHasmukh Balubhai Shah
RespondentState of Maharashtra and ors.
Appellant AdvocateN.H. Gurusahani and ;D.S. Mane, Advs.
Respondent AdvocateS.B. Patil, P.P. and ;A.H. Sayyad, Adv., for Respondent No. 5
Excerpt:
criminal - witness - sections 120b, 409 and 477b of indian penal code, section 173 of criminal procedure code, 1973 and section 7 of essential commodities act - complaint lodged against accused alleging that they have made attempt to deliver essential commodities in unauthorised manner - petitioner employed in company alongwith accused but left company due to some dispute - petitioner not stranger to entire episode and in picture as employee - claim made by petitioner that he should not be examined as prosecution witness - petitioner was not informant - no question of secrecy observed as statement of petitioner furnished to accused in advance - petitioner cited as prosecution witness in charge sheet - request of petitioner rejected. - - 7. the learned trial magistrate upheld the.....v.s. kotwal, j.1. the whole foundation of ventilating the grievance by the petitioner claiming privilege for not being examined as prosecution witness in a criminal case is obviously misconceived having regard to the facts and circumstances of the case. the learned magistrate while negativing the said contention has assigned cogent reasons on application of mind. all the facts considered in proper perspective make it clear that there is no reason whatsoever to upset the impugned order in this proceeding initiated under article 227 of the constitution of india and under the inherent powers under section 482 of the code of criminal procedure, as also the revisional jurisdiction under section 397 of the code of criminal procedure.2. on the basis of a report by the investigating officer, the.....
Judgment:

V.S. Kotwal, J.

1. The whole foundation of ventilating the grievance by the petitioner claiming privilege for not being examined as prosecution witness in a criminal case is obviously misconceived having regard to the facts and circumstances of the case. The learned Magistrate while negativing the said contention has assigned cogent reasons on application of mind. All the facts considered in proper perspective make it clear that there is no reason whatsoever to upset the impugned order in this proceeding initiated under Article 227 of the Constitution of India and under the inherent powers under section 482 of the Code of Criminal Procedure, as also the revisional jurisdiction under section 397 of the Code of Criminal Procedure.

2. On the basis of a report by the Investigating Officer, the Company Law Board, Bombay a formal complaint came to be lodged by the Regional Director, Company Law Board, Bombay, one Shri Rajagopalan, in September 1972 under section 154 of the Code of Criminal Procedure wherein four persons were arrayed as accused persons. On that basis offence under sections 120B, 402 and 477-B of the Indian Penal Code and section 7 of the Essential Commodities Act came to be registered and investigation was taken up by the then Deputy Superintendent Police of Shri Karnik, who unfortunately is no more. The gravamen of the allegations is quite serious in nature and contents. In substance it mentions that it was revealed through the inspection of books of accounts and record of M/s. New Standard Engineering Company Limited, Bombay, a public limited company having its operational area in this metropolis of which accused Nos. 1 and 2 claimed to be the Directors, that an attempt was made to co-relate the delivery of pig iron and mild steel plates delivered by the said company to different parties whose names figured in their record. On enquiry it transpired that the company had effected the delivery of large quantities of the said commodity during the years 1964 to 1966 totally valued at Rs. 16 lakhs to different persons, though the sales were not accounted for and it further revealed that the said commodity being the controlled one could not have been disposed of in such unauthorised manner as the motive is suggested that it was done for the purpose of securing wrongful profits, out of such sales. The details of the said allegations need not detain us since the question posed in this proceeding falls in a narrow field.

3. During the progress of the investigation statements of various persons came to be recorded. There are in all six accused persons who are sought to be placed in the dock, the other three being the purchasers. The factory premises as also residential premises of the Directors were searched and certain documents came to be seized. It appears that the Officers of the Sales Tax Department were also on the scene though they had their own enquiry restricting to the violation of the provisions of Sales Tax Act on account of which a proceeding was initiated and the Company has been assessed accordingly with which we are not concerned in this proceeding. It is clear that this investigation was taken up, carried and ultimately concluded by the Central Bureau of Investigation, which was obviously an investigation under the provisions of the Code of Criminal Procedure. As stated, various witnesses were examined obviously under section 164 of the Code of Criminal Procedure. Then comes in the picture the present petitioner, who at some part of the material time was employed in the said company in the capacity as Electrical Engineer. He was initially looking after the Sales Department of Factory Equipment and Electrical Induction Licences and in that capacity he was required to work in the company's factory at Carole Road and also at Goregaon. He was, however, shifted to different branches of the company though during some period he was sent to Japan for special training. It also appears that some dispute arose between the company and the petitioner which prompted the petitioner to leave the services of the company. The record also reveals that the dispute between the parties about the outstanding dues was going on which ultimately was settled not before the criminal prosecutions were launched between the parties. It is thus claimed that the petitioner was very much in the picture in his capacity as an employee of the Company and thus was not a stranger to the entire episode. During the course of investigation the Investigating Officer Shri Karnik recorded his statement obviously under section 164 of the Code of Criminal Procedure on 9th January, 1973. It is after completing entire investigation that a charge-sheet was filed in the Court of the learned Additional Chief Metropolitan Magistrate, Court No. 38, Ballard Estate, Bombay, which is the subject matter of Criminal Case No. 9/P of 1981 for the said offences against the said six persons.

4. One Shri Walawalkar, who was then working as Assistant Commissioner of Sales Tax was examined as prosecution witness No. 1 and he was also cross-examined on behalf of the defence and his evidence was closed on 22nd November, 1982.

5. At that stage after the conclusion of that evidence the prosecution moved the trial Court for issuing summons to the petitioner as they wanted to examine him as the material prosecution witness in response to which motion a witness summons was served on the petitioner to appear and tender evidence. In response to the said summons the witness i.e. the petitioner did appear in that Court, but instead of entering the witness box he gave an application, a copy of which is annexed as Exh. B, inter alia, contending that he cannot be examined as a witness since he claimed privilege on several counts and ultimately prayed that the summons which was issued to him may be cancelled. In effect the privilege was claimed relying on the provisions of section 125 of the Evidence Act as also under section 115 formulating a contention to the effect that in reality he is an informant and as such even his name should not have been disclosed and in any event as an informant he could not be compelled to give evidence against the accused persons and as such privilege was claimed on the ground of public policy. It was also contended in that application that the Investigating Officer Shri Karnik at the time of recording his statement in the year 1973 had given him oral assurance that he would not be examined in Court of law in any proceeding and on that basis plea of promissory estoppel reflected in the said application presumably under section 115 of the Act.

6. The prosecution opposed the said application on merits and mainly contended that it is a misnomer to call the petitioner as informant since he is nothing short of a prosecution witness. It was also contended that his statement was recorded by the police during the course of investigation at which time the petitioner produced certain material nexus with the offence and involvement of the accused and it was further categorically stated that the copies of the petitioner's statement, documents which he produced as also the copy of panchanama under which the documents were produced have been supplied to the defence under section 173 of the Code of Criminal Procedure. It was indicated that there was no secrecy left over in view of these developments. The prosecution, therefore, prayed for the dismissal of that application.

7. The learned trial Magistrate upheld the validity of the contention raised by the prosecution that the petitioner really was not an informant as such and further more there is no question of any secrecy being observed in view of the admitted position that the copies of these material documents including the statement of the petitioner have been furnished to the accused well in advance and that the petitioner has been cited as a prosecution witness in the charge-sheet. He negatived the plea of so-called promissory estoppel as being wholly misconceived.

8. Parallel to this proceeding the petitioner also moved the trial Court for supply of copies of certain documents and some of the statements recorded by the police. It is significant to note that the petitioner moved the Sessions Court for interim order against the latter order as he feels that copies of all the documents are not directed to be supplied to him whereas he did not move the Sessions Court against the first order when his plea for privilege was negatived. On this forum he has not agitated anything about the order vis-a-vis granting of copies of certain documents while the petitioner restricted his petition only to the first order under which his plea of privilege has been negatived. Consequently the question of documents and supply of their copies pale in the background in this proceeding.

9. The said order of the learned Magistrate rejecting the petitioner's application is being placed under challenge in this petition.

10. Shri N.H. Gurusahani, the learned Counsel for the petitioner, mainly contended that the petitioner's capacity is only in the shape of an informant as according to him, he set the ball rolling on account of which the Sales Tax Officer raided the premises on the basis of a note book or a document at Article No. 1. The learned Counsel submits that the petitioner's capacity as an informant never changed. Further reliance is placed by the learned Counsel on the provisions contained in sections 123, 124 and 125 of the Evidence Act in support of the validity of his contention, as accordingly to him the public policy demands that, protection should be given to the petitioner so that he need not compelled to disclose the identity as also to make other discloser in the witness box. The learned Counsel also reiterated the petitioner's grievance that Shri Karnik had given him a promise of not being examined and it is only on that assurance that the petitioner gave his statement and, therefore, a plea of promissory estoppel based on section 115 of the Evidence Act is raised. Shri S.B. Patil, the learned Public Prosecutor for the State, has obviously countered these contentions and adopted the reasons assigned by the learned Magistrate and he emphasised than the petitioner is not an informant but he is out and out a prosecution witness and his evidence is extremely material for the prosecution against the accused persons. Shri Sayyad, the learned Counsel for the respondent accused No. 5 has supported the learned Public Prosecutor as according to him on the premise of legal position read in the context of facts of the instant case no such privilege can be claimed by the petitioner even though his evidence may go against the accused.

11. I have already indicated the structure of the rival contentions and, therefore, the same need not be restated. The learned Magistrate has applied his mind to all the facts and has recorded a well reasoned order, which is also supported by the material on record. Since the findings and the reasons are being endorsed a detailed discussion may become unnecessary.

12. Some of the features which would furnish as a relevant backdrop to pursue the rival contentions, can be stated at the threshold. It must be observed that these features are accepted by all the parties including the petitioner as these were also conceded in the trial Court. Apart from the concession, the record fully justifies their existence. The first is that the statement of the petitioner was recorded by the Deputy Superintendent of Police, Shri Karnik, on 9th January, 1973. It is a detailed statement. During the course of investigation it came to be recorded. In the said statement admittedly the petitioner produced certain documents. Those documents were admittedly attached by the Investigating Officer under a panchanama. Further admitted position is that the petitioner has been cited a prosecution witness in the charge-sheet by the Investigating Officer. The last item of admitted position is that along with copies, all other documents, the defence has been furnished with copies of the petitioner's statement recorded by the Investigating Officer, copy of the panchanama under which documents were attached from the petitioner and the copies of those documents themselves.

13. In the second category falls several other features for which there can hardly be any controversy and the record substantiates the same, though the petitioner may not admit those in terms. The prosecution has shown the relevant papers of investigation. In the first instance there is a report of Shri Gupta, who was then working as Inspecting Officer in the Directorate of Inspection, Company Law Board, Government of India, Bombay. The second is the F.I.R. under section 154 of the Code of Criminal Procedure, wherein the complainant is shown as one Shri S. Rajagopalan, Regional Director, Company Law Board, Bombay. This report was lodged on the basis of which Crime No. RC-18/EGW/73 was registered by the Central Bureau of Investigation on 22nd September, 1970. It is made clear in that report that an offence has been registered and which is to be investigated by the police when Shri Karnik was put in charge of the investigation. The record further reveals that the factory premises were raised as also residential premises of the two accused persons where several documents and articles were attached The agreement of the allegations is already indicated that there has been unauthorised or illegal sale by clandestine process of the controlled commodity in violation of the Act and Rules. The record further reveals and there can hardly be any controversy that the statement of the petitioner recorded by the Investigating Officer was obviously under section 161 of the Code of Criminal Procedure, which was a statement during the course of investigation. It was not a statement recorded by any other Officer such as Sales Tax Officer or the Officer of the Company Law Board, but it was a statement by the police. The said statement which is a detailed one makes reference to several aspects including the function of the factory apart from certain features noticed by the petitioner while working in that office. In addition, the petitioner accepted that he produced certain relevant documents which had direct nexus with the proceeding in question before the Investigating Officer and which were attached under a regular panchanama. This would also indicate that he was being examined by the Investigating Officer as a witness under the Code and the documents were attached as part and parcel of investigation and this assumes importance as it unmistakably substantiates that all this was done treating the petitioner as nothing short of higher than the prosecution witness. The petitioner on his own showing has been in charge of different branches of the company and was in the know of several features for which he was competent to depose before the Court. A submission is made by Shri Gurusahani, the learned Counsel, that the petitioner cannot be compelled to disclose some information which he might have received from other employees. However, the statement makes reference to several other features suggesting personal knowledge on the part of the petitioner about various items. The last feature in this category would be that it is nearly after 10 years that a protest is being made by the petitioner for the first time in the Court regarding all these contentions claiming so-called privilege.

14. Reliance was placed by Shri Gurusahani, the learned Counsel on the provisions contained in sections 123, 124 and 125 of the Evidence Act. The bunch of these provisions fall in Chapter IX relating to the witnesses. The learned trial Magistrate has considered this aspects and recorded a finding that all these provisions do not apply to the facts of the instant case and I see no reason to depart from that finding. Thus section 123 puts an embargo on any one from giving evidence derived from unpublished official record relating to any affairs of the State except with the permission of the Head of Department. This provision, therefore, obviously relates to the privilege of a witness under restricted circumstances. It is very difficult to accept that the facts are embraced by this provision since there is no question of anyone trying to give evidence from unpublished official record which relates to affairs of the State. A faint attempt was made to suggest, which was obviously with some strain, that the statement given by the witness before the Investigating Officer can be deemed to be an unpublished record relating to the affairs of the State. For obvious reasons, it is impossible to uphold the validity of this contention. In my opinion, it hardly requires any further comments. Shri Gurusahani, the learned Counsel, in that contest placed reliance on some of the observations in the ratio in State of Punjab v. Sodh Sukhdev Singh, : [1961]2SCR371 essentially to suggest that the ambit or concept of affairs of State have now been expanded and cannot be restricted to the earlier notions. The Supreme Court no doubt observed in consonance with that suggestion that the inevitable consequence of the change in the concept of the functions of the State is that the State in pursuit of the welfare activities, undertakes to an increasing extent, activities which were formerly treated, as purely commercial, and documents in relating to such commercial activities undertaken by the State in the pursuit of public policies of social welfare are also apt to claim the privilege of documents relating to the affairs of State. Expanding this definition and concept it was further observed that if the proper function of the public servant would be impaired by the discloser of any document such document may also claim the status of document relating to public affairs. Some categories were envisaged. In one category the documents relating to matters of political or administrative character were placed. It was indicated that the contents would not be the primary consideration but this was with reference to the contents of the documents. In the other category it was indicated that similar privilege can be claimed with reference to a document not by reason of its contents but by reason of fact that if the said document is disclosed it would materially affect the freedom and concept of opinion in the determination and execution of public policies. The undercurrent of all the categories and even expanded concept of affairs of the State has no nexus whatsoever with the facts of the instant case where in a private concern, fraud was detected and an ex-employees was questioned by the Police Officer during investigation, when he makes certain discloser regarding the working of that private undertaking. Section 214 of the Act stipulates that a public Officer cannot be compelled to disclose the publication made to him in his official capacity with the qualification that if he considers that public interest would suffer by such discloser. In the instant case not only there is no such formation of opinion by the concerned public Officer but on the contrary the prosecution wants and which is supported by the concerned public Officer that such a discloser is necessary to be made in the interest of justice, as also such discloser would not be against the public policy. Further there is no question in the instant case of compelling any public Officer to make such a discloser. The situation is entirely different. Similar would be the case vis-a-vis the provisions contained in section 125 of the Act as there is no question of any Magistrate or a Police Officer or Revenue Officer being compelled to give any evidence about the commission of any offence.

15. Reliance was then placed on the provisions of section 115 of the Evidence Act, particularly the doctrine of promissory estoppel and in that behalf it is submitted that the Investigating Officer, Shri Karnik, who was in charge of the relevant investigating has promised the petitioner that even though he was recording his statement still the witness would not be called to give any evidence in a Court of law. Unfortunately Shri Karnik is no more. However, the concerned Investigating Officer, who took over and ultimately filed charge-sheet obviously fleet that there is no question of any promise that could be legitimately given to the petitioner by the said Investigating Officer. It is also rightly submitted by the learned Public Prosecutor that the concerned Officer should basically have jurisdiction and authority to give such a promise. It also cannot be overlooked that this plea had come forth for the first time nearly 10 years after the statement was recorded. It is impossible to accept that any such promise would ever have been given or in fact was given by the Investigating Officer. In any event assuming otherwise there is no question of application of doctrine of promissory estoppel in the facts and circumstances of the case.

16. The ratio cited in Nagaraja Pillai and another v. Secretary of State A.I.R. 1915 Mad 1113 has no application on facts. The communication in official confidence as prescribed in section 124 of the Act was equated being on the same par as professional confidence in section 126 and it was indicated further that opinion of the Officer in charge that it is so detrimental in the public interest should normally be accepted as official. In Sukhdev Singh's case (cited supra) Supreme Court indicated that the formation of opinion as to whether the discloser of a particular document would be detrimental to public policy or not is normally a matter for the authority concerned to decide but they have indicated the qualification that the Court is competent to hold primarily enquiry and determine the validity of that objection for the production. The question, therefore, obviously was entirely different inasmuch as the documents containing the minutes of the meeting of Council of Ministers and indicating the advices the Council gave to the Rajpramukh were sought to be produced including that by the public service commission to the Council of Ministers when privilege was claimed under section 123 of the Act. The further discussion and certain ratios, therefore, need not detain us when the facts of the instant case are entirely different and are not governed by various ratios, though there can hardly be any dispute about the proposition reflected in these ratios.

17. Reliance was sought to be placed on the provisions of sub-clause (6) of section 173 of the Code of Criminal Procedure. On the contrary, the said provision is very much against the petitioner. Under the said provisions it is envisaged that the Police Officer indicated to the learned Magistrate while supplying copies of the documents that the part of the statements need not be disclosed as such discloser would not be in the interest of justice and would be in expedient and on the note being appended in that behalf the learned Magistrate has then to exclude that statement while giving copies. The situation here is entirely different inasmuch as police not only cited the petitioner as a witness in the charge-sheet but they also furnished copy of the statement along with copies of the panchanama and the documents attached from him to the defence and further more the prosecution expressly indicated to the Court that they very much desire to examine the petitioner as witness. Therefore, the situation is exactly contrary inasmuch as the police make no secrecy and did not feel that any part of his statement need not be furnished to the defence and further more the prosecution did not claim any privilege of any kind. But on the contrary they went to unfold the entire evidence for the learned Magistrate.

18. Shri Gurusahani, the learned Counsel, made a grievance that the circumstances indicate that the petitioner at the threshold gave information to the Sales Tax Officer in pursuance of which the factory premises of the firm and the residence of the partners came to be raided when certain documents were attached. According to the learned Counsel, there are indications to suggest that the petitioner himself gave information to the Company Law Board on which basis that company board also started enquiry when on the same pattern several other documents were attached. It is then suggested that the source of the police about the information is based on the complaint given by Shri Rajagopalan, Regional Director, Company Law Board, Bombay. Therefore, by necessary deduction it would be clear that ultimate source of information even to the police is no one else except the petitioner. It is not possible to accept the validity of this contention. In the first instance, there is noting on record to substantiate the foundation of this contention. No document was produced before the learned Magistrate when application was hotly contested. Further it is very significant to note that in the evidence of P.W. 1 Ramchandra Walawalkar, who, was then acting as Assistant Commissioner of Sales Tax, there is nothing even to inferentially hold that the Sales Tax Department had received information from the petitioner on which the further action was founded. This evidence, therefore, does not even inferentially support the petitioner's case in that behalf. As regards the complaint filed by Shri S. Rajagopalan, the Company Law Board, came in the picture thereafter. On that forum also there is absolutely nothing even to inferentially suggest that the board was moved only on the information given by the petitioner. On the contrary the complaint of Shri S. Rajagopalan has indicated that the board was put in action only after a detailed enquiry was made and the report was submitted by Shri Gupta, who was then working as Inspecting Officer in the Directorate of Inspection, Western Region of Company Law Board, Government of India, Bombay. A detailed report has been made by Shri Gupta a copy of which has been furnished for perusal by the prosecution. It is a document making demonstration of industry and methodic approach to the whole enquiry by the Officer which is really commendable. This is more so as not only evasion but even a fraud on large scale was unfolded in that enquiry in different branches and it was not an easy task to collect all rational material in the said network. In addition, a statement was recorded by the Investigating Officer on 17-8-1973. According to him, he was directed to make enquiry on inspection of the accounts and other documents. No doubt some documents were in the custody of Enforcement Director while other in the custody of the Sales Tax Authority. He has given a detailed statement in consonance with his report suggesting as to how fraud has been perpetrated, the details of which would not be relevant in this proceeding. It does, therefore, appear from the record as contended by the learned Public Prosecutor for the State, that may be that the Sales Tax Authorities came in possession of delivery memo of the concerned firm showing delivery of pig iron in the month of May 1964 and November 1965. However, there is not even an indication as to how the said material came into their possession. The enquiry pertains to the violation and breach of provisions under the Sales Tax Act and Rules and for evasion of sales tax for which the accused are proceeded against, by the said Board. In pursuance of that, Shri Walawalkar raided the factory and residential premises and attached several documents exposing, suppression of income. The assessment order has been passed and an appeal against that order is pending. The Central Bureau of Investigation considered the complaint of Shri S. Rajagopalan, Regional Director of Company Law Board and it is on that basis that an offence was registered at C.R. No. 18 of 1972 under sections 120B, 409 and 477-B of the Indian Penal Code and section 7 of the Essential Commodities Act. Prior to the sending of the complaint, Shri Gupta had inspected the Books and Account of the company and noticed illegal sale of pig iron whereafter he submitted his report to his superiors on which basis a complaint was lodged and in turn on which basis offence was registered and investigation proceeded. Having regard to all these events, it is not possible to accede to the claim made by the learned Counsel as stated earlier. The investigation itself does not reveal in any manner that it was the petitioner, who had given information to the police. The circuitous mode of giving information through different channels as suggested on behalf of the petitioner is difficult to be upheld. The Officer of the Sales Tax, who has been so far examined has also not indicated even inferentially any such source and so also the report of Shri Gupta as also the complaint of Shri S. Rajagopalan did not make any reference to any such source. On the contrary it is in the enquiry by the Officer that several documents came to be attached when it was revealed a fraud on large scale having been perpetrated by the said Company. The Investigating Officer, Shri Karnik, who took up the investigation or registration of the offence had his independent action as he also raided the factory and residential premises and attached documents under the panchanama and carried his own independent investigation. It is during the course of such investigation that he examined the petitioner only and exclusively in the capacity as a prosecution witness and not even inferentially in the capacity as an informant. His intention is further reflected in the fact that the petitioner was cited as a witness in the charge-sheet. Not only that but copies of his statement and panchanama of the documents attached from him have also been supplied to the defence after filing of the charge-sheet obviously under section 173 of the Code of Criminal Procedure. Further the prosecution has opposed even in the trial Court, the motion on behalf of the petitioner making it clear that in the entire investigation carried out by the police the petitioner has assumed only one character and that too as a prosecution witness and he was no where treated or considered as an informant, much less the police agency had ever considered or thought of claiming any privilege so as not to examine the said witness.

19. Parallel to this aspect there is a detailed statement given by the petitioner before the Investigating Officer, which runs into not less than 7 pages and it is dated 9th January, 1973, recorded by Shri Karnik, the then Deputy Superintendent of Police, Central Investigation Bureau. That statement of the witness came to be recorded under section 161 of the Code of Criminal Procedure during the course of investigation. Admittedly its copy has been supplied to the defence in the Court along with copies of other statements. Even a cursory glance at the recitals of this statement makes it clear that there is hardly any scope to infer even on facts that the petitioner would assume character only as an informant. On the contrary it contains such wealth of details which could legitimately be extracted from a witness would observing any secrecy or privilege. It would not be proper to consider all shades of the statement in this proceeding. Suffice however, to observe that mention of those recitals relating to working of the factory in different branches could legitimately be deposed to by the witness or employee in the witness box. Certain mal-practices purported to have been committed by the company though disclosed in that statement would not come as a surprise to the prosecution inasmuch as even independent thereof the Investigating Officer has collected even the material to establish the nexus of the accused vis-a-vis the alleged fraud. Thus for instance, Accounts Books, Vouchers and several other documents are sought to be relied upon by the prosecution in that behalf.

20. There is yet another thing to this aspect. It is interesting to note that the witness has made a grievance that he was deliberately shunted from one branch to another by realising that the petitioner would not be co-operative but on the contrary would create obstacles. At one stage he was actually sent abroad for further training and it is on his return that he was shifted to another branch. The petitioner has made a grievance of this, meaning thereby that the accused and the petitioner who apparently were on cross-roads observed no secrecy in that behalf. According to the petitioner subsequently when he decided to resign, the accused deliberately with held his salary on account of the said consideration as he was shifted from different branches and ultimately the petitioner had to knock the doors of the Court against the accused to get his salary when the dispute was ultimately settled in the Court. It is also borne out by his own statement that proceedings have been initiated inter se between the accused and the petitioner on different forums and according to him, he has made a specific grievance that when he issued legal notices to the partners for his dues, criminal prosecutions under section 500 of the Penal Code have been launched by the accused against him in various Courts at Bombay, Baroda and Calcutta when he was ultimately obliged to move the Supreme Court for getting all the cases transferred to Bombay and he was successful in getting those cases stayed.

21. The totality of all these circumstances including the details in the statement of the petitioner and the conduct of the respective parties and also the conduct of the investigating agency make it manifestly clear that all the cards were open even to the knowledge of the accused and no secrecy could be observed by any source. The relations between the parties i.e. accused and the petitioner are already strained and either of them makes no secrecy thereof. Cases and counter cases have been filed and are pending even on other counts. The statement which is a detailed one recorded under section 161 of the Code of Criminal Procedure obviously gives him a label only as a prosecution witness. All the relevant copies including the statement of the petitioner and the documents produced by him are supplied to the defence well in advance. The prosecution rightly felt that in the nature of things the evidence of this witness is extremely material on several features including the documents attached from him. The Policy Agency as well as the prosecution not only did not even inferentially claim any privilege but on the contrary insists that they should be permitted to examine the petitioner, who has been openly mentioned in the charge-sheet as prosecution witness. The specious claim of the petitioner that Shri Karnik had given promise 10 years back carries no conviction and is really of no consequence. The basic foundation of claiming privilege under various provisions of the Act is not only blissfully missing but on the contrary the parties concerned do not desire to claim any such privilege. Further even the basic concept and foundation of a character of an informant cannot be annexed to the petitioner. Lastly, as to when and why, the informant is to be afforded privilege for his own safety as well as in the public interest as also in consonance with the public policy is also eloquently missing in the instant case. In reality the situation is such that it cannot even indirectly apprehended by the petitioner that he would be exposed before the accused so as to jeopardise his safety since last several years the parties know the reality with no secrecy whatsoever. Consequently the integral element in claiming privilege and observing secrecy mainly for seeking protection from the accused is totally non-existent. The basic foundation of claiming privilege, therefore, is absent.

22. Having regard to all these facts, I find no reason to interfere with the impugned order rightly recorded by the learned trial Magistrate. The motion canvassed by the petitioner claiming privilege even at the threshold, informing the Court that he should not be made even to enter the witness box is thoroughly misconceived and cannot be sustained. It was suggested by Shri Gurusahani, the learned Counsel, that certain questions may be put to his client which again may be a basis for privilege on account of certain provisions of law. However, this is all speculative and in any event it is not germane to this proceeding as the proceeding is restricted to limited question as to whether petitioner's motion, that he should not be made to enter the witness box should be accepted or not. Answer to that query would be obviously in the negative in firm manner. Consequently, there is absolutely no merit in this petition on any count.

23. In the result, rule is discharged. The order recorded by the learned trial Magistrate is confirmed.


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