A.D.V. Reddy, J.
1. In this petition the scope of the doctrine of testimonial compulsion incorporated in Article 20(3) of the Constitution of India has come up for consideration, and it arises under the following circumstances:
2. In connection with the alleged defalcations of the funds of the Hyderabad Khadi Samithi, two private complaints were filed by one Ramachandra Vaswani claiming to be Chief Accountant and also the President of the Employees Union of the said Samithi, before the VI City Magistrate, Hyderabad and they were taken on file as C. C. Nos. 1371 of 1970 and 1372 of 1970 for offences under Section 408, I. P. C.
3. In C. C. No. 1371 of 1970 the accused were shown as Sri Swami Ramananda Thirtha, Damodar Pangrekar (present petitioner) and Ramkrishna Nanavati. As Sri Ramananda Tirtha died, the case was proceeded with against the remaining two. In C. C. No. 1372/70 though the complaint was against six persons including the present petitioner (D. V. Pangrekar), cognizance of the complaint was taken only as against Ramakrishna Nanavathi. Both the cases were being posted for trial together on the same day and summons were sought to be taken in both the cases against D. V. Pangrekar who was the Secretary of the Samithi for the production of certain records and to give evidence. As he was one of the accused in C. C. No. 1371/70, that petition was dismissed. But in C. C. No. 1372/70. as the case was not taken on file against him, summonses were issued. As against the issue of the said summons, the said D. V. Pangrekar filed a petition claiming protection under Article 20(3) of the Constitution, contending that summoning him as a witness in the case would amount to testimonial compulsion and he should not be examined as a witness. This contention was rejected by the VI City Magistrate and it is against that order this revision has been filed.
4. Protection is sought under Article 20(3) of the Constitution from giving evidence. The said Article is as follows:
No person accused of an offence shall be compelled to be a witness against himself.
The doctrine of immunity from self in-crimination is founded on the presumption of innocence which characterises the English system of criminal jurisprudence, differing from the inquisitorial procedure obtaining in France and some other continental countries. The fundamental principle underlying this system is that it is for the prosecution to prove the guilt of the accused and the accused need not make any statement if he does not choose to do so. It is as a protest against the inquisitorial methods adopted by the Star Chamber and other ecclesiastical Courts in England that the maxim 'No man is bound to accuse himself' (nemo tenetur prodere or nemo tenetur seipsum accusare) came to be asserted. This principle now embodied in the Criminal Evidence Act, 1898 in England, stipulates that though the accused is competent to be a witness on his own behalf, he cannot be compelled to give evidence against himself. The same privilege was extended to witnesses also both in civil and criminal proceedings. This principle was adopted in other countries also. In the Fifth Amendment, to the Constitution of the United States of America, it is said that 'No person ...shall be compelled in any criminal case to be a witness against himself'
5. As stated by Deen Griswold of the Harvard Law School, 'Privilege against self-incrimination is one of the great landmarks in man's struggle to make himself civilized. We do not make even the most hardened criminal sign his death warrant or dig his own grave, or pull the lever that springs the trap on which ha stands. We have, through the course of history, developed a considerable feeling of the dignity and the intrinsic importance of the individual man...neither torture, nor an oath, nor the threat of punishment such as imprisonment for contempt should be used to compel him to provide the evidence to accuse or to convict himself. 'In India Section 3 of Act 15 of 1852 recognised that an accused person in a criminal proceeding was not a competent or compellable witness for or against himself. This provision was repealed by the Evidence Act, 1872. In the meanwhile, Sections 204 and 203, Criminal P. C., 1861, provided that no oath was to be administered to the accused and it was in the discretion of the Magistrate to examine him. Under Section 250, Criminal P. C. of 1872, a general questioning of the accused after witnesses for the prosecution had been examined, was provided and under Section 345 of the said Code, it was provided that no oath or affirmation was to be administered to an accused person and these provisions were continued in the law Codes of Criminal Procedure and were incorporated into Section 342, Criminal P. C. of 1898. It is only by the Amending Act 26 of 1955 that Section 342-A, Criminal P. C. was introduced enabling the accused to be a competent witness for the defence and give evidence on oath on his own behalf in disproof of the charges made against him, but this was subject to the provision that he shall not be called in as a witness except on his own request and Section 5 of the Oaths Act was simultaneously amended permitting administration of oath to the accused.
6. The immunity against self-in-crimination was wide enough to enable even witnesses in the Anglo-American systems. There are some who consider that justice however would not perish if the accused were subjected to a duty to respond to orderly inquiry, that the immunity operated more as a mischief rather than a benefit as this enables the accused to hide the truth under a bushel of protection and justice suffers. This protection available to the accused is not extended to the witnesses in India. The Indian Evidence Act even as far back as 1872 had incorporated Section 132, a provision stating that a witness shall not be excused from answering any question as to any matter relevant to the matter in issue in any suit or in any civil or criminal proceeding, upon the ground that the answer to such question will criminate, or may tend directly or indirectly to criminate, such witness, or that it will expose, or tend directly or indirectly to expose, such witness to a penalty or forfeiture of any kind. This principle is incorporated in Article 20(3) of the Constitution. It extends the immunity only to persons accused of an offence and not to witnesses. Under Article 20(3) therefore it is necessary to show that a person claiming the immunity (1) is accused of an offence (2) is sought t6 be examined as a witness; (3) against himself. 'Offence' has been defined in Section 3(38) of the General Clauses Act of 1897 as any act or omission made punishable by any law for the time being in force. It is therefore necessary that the person who is sought to be examined as a witness must first be a person who is accused of an offence.
7. It is now contended by the learned Counsel for the petitioner Sri Y. Sivarama Sastry. first that the petitioner is an accused in the other case, i. e., C. C. No. 1371 of 1970 and the evidence given here may incriminate him in that case. This is far-fetched as the evidence given in this case cannot be read as evidence in the other case. Moreover, it is incumbent on the Court to admit only such evidence as is relevant to the case in which he is called as a witness and disallow other questions that may tend to incriminate him in the other case. Moreover, this argument is not any more available, as the other case C. C. No. 1371 of 1970 has already been disposed of.
8. It is next contended that it is not necessary that the person sought to be examined as a witness must be an accused in the Court, that it is enough if he had been in the nature of an accused at any time prior to his examination and he relied on the judgment in M. P. Sharma v. Satish Chandra : 1978(2)ELT287(SC) , where it is stated that the protection afforded to an accused in so far as it related to the phrase 'to be a witness' is not merely in respect of testimonial compulsion in the Court room but may well extend to compelled testimony previously obtained from him, that it is available therefore to a person against whom a formal accusation relating to the commission of an offence has been levelled which in the normal course may result in prosecution, that considered in that light, the guarantee under Article 20(3) would be available to persons against whom a First Information Report has been recorded as accused therein. The above decision has been distinguished in State of Bombay v. Kathi Kalu : 1961CriLJ856 where it is held that to bring the statement of a person 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 when he made the statement. In the present case it is contended by the learned Counsel for the petitioner that the complaint was filed even against the present petitioner and therefore he was in the nature of an accused. But it is clear from the above decisions that he must be an accused at the time when his statement is sought to be recorded. Though the complaint was against the petitioner, also and he was shown as one of the Accused, the Court took cognizance of the offence under Section 408, I. P. C. against Ramakrishan Nanavati only and not against this petitioner and others. He no longer assumed the character of an accused and he cannot therefore claim the immunity under Article 20(3) as an accused person.
9. The third limb of Article 20(3) of the Constitution provides that an Accused should not be called as a witness against himself. In the present case, the petitioner has certainly not been called as a witness against himself but only against another person who is the accused in the case to give evidence that is relevant to the offence with which that person is charged. The petitioner therefore cannot claim the immunity provided for under Article 20(3) of the Constitution. His application has therefore rightly been rejected by the Sessions Judge.
This petition is therefore dismissed.