Durga Charan Nischal v. The State of Jharkhand

As per the FIR, the petitioner, who is the informant, has instituted Dumka (Town) P. S. Case No. 161 of 2006 for the offences under Sections 381/409 of the Indian Penal Code against co-accused Shivlal Das, (Passing Officer, Punjab National Bank) for causing loss to the Punjab National Bank, Dumka Branch, Dumka to the tune of Rs. 10,00,000/- i.e. Rs. 500 denomination of 1000 and Rs. 100 denomination of 5,000 and later on 27.11.2006, under Section 120B of the Indian Penal Code was added and the -2- petitioner has also been made an accused in this case.

4. It has been submitted by the learned Senior Counsel for the petitioner that the impugned order passed by the learned Court below is not sustainable in the eye of law. It is further submitted that the petitioner is the informant of this case and later on, he has been made an accused and thereafter charge-sheet has also been submitted against him and thereafter the petitioner has been granted bail by Jharkhand High Court in B. A. No. 5234 of 2011 vide order dated 19.09.2011. It is submitted that the prosecution has filed a petition under Section 311 of the Cr. P. C. to examine the petitioner as a witness, which is not sustainable in the eye of law. It is submitted by the learned Senior Counsel for the petitioner that under the provisions of Section 316 of the Cr. P. C., the accused cannot be under coercion or threaten to disclose or withhold any matter to his knowledge. It is further submitted that power conferred under Section 311 Cr. P. C. has been wrongly exercised by the Court. It is further submitted that the petition filed under Section 311 of the Cr. P. C. is against the provision of Section 316 of the Cr.P.C. and Section 24 of the Indian Evidence Act and the impugned order passed by the learned Court below may be set aside and this Criminal Revision Application may be allowed.

5. On the other hand, learned counsel for the State has opposed the prayer. It is submitted that the petitioner is the informant of this case and as such, his examination as a witness for the prosecution is necessary in the interest of justice. However, the petitioner was also involved in connivance with other co-accused in this case and hence he has been charge sheeted by the police and as such, the impugned order passed by the learned Court below requires no interference and this Criminal Revision Application may be dismissed. -3-

6. Learned counsel for the State has placed reliance upon the judgment rendered by the Hon’ble Supreme Court in the case of Mohanlal Shamji Soni Vs. Union of India Another reported in AIR 1991 SC 1346 and has submitted that the Court in order to find out the truth and in the interest of justice and to render to just a decision, may examine any person as a witness and holding that the order passed by the learned Court below is fit and proper and hence, no interference is required by this Court.

7. Perused the Lower Court Records and considered the submission of both the sides.

8. It transpires that the petitioner is the informant in this case and has earlier instituted an FIR being Dumka (Town) P. S. Case No. 161 of 2006 for the offence under Section 381/409 of the Indian Penal Code and later on 27.11.2006, under Section 120B of the Indian Penal Code was added for causing loss to the Punjab National Bank, Dumka Branch, Dumka to the tune of Rs. 10,00,000/- i.e. Rs. 500 denomination of 1000 and Rs. 100 denomination of 5,000.

9. It further transpires from the Lower Court Records that after investigation, police has submitted charge sheet against the accused person, however, during course of enquiry and after investigation, the police again submitted charge sheet against on

16.06.2011 under Sections 408/409/120-B of the Indian Penal Code against this petitioner- Durga Charan Nischal and one co- accused Devendra Prasad, although, the FIR was lodged on

31.07.2006.

10. It further transpires from the record that the petitioner was granted bail by the Co-ordinate Bench of this Court in B. A. No. 5234 of 2011 vide order dated 19.09.2011. -4-

11. It further transpires that the charges have been framed against the petitioner on 02.06.2015 under Sections 408/409/120-B of the Indian Penal Code and trial has proceeded further.

12. It further transpires from the record that during penedency of the trial before the learned Court below, the prosecution filed a petition under Section 311 of the Cr. P. C. on

16.01.2018 for examining the petitioner as a witness and for the evidence of the informant.

13. Thereafter vide impugned order dated 05.02.2018 passed by the learned Chief Judicial Magistrate, Dumka in connection with Dumka (Town) P. S. Case No. 161 of 2006 corresponding to G. R. No. 938 of 2006 whereby the learned Chief Judicial Magistrate, Dumka has allowed the petition filed by prosecution under Section 311 of the Cr. P. C. for examination of the petitioner, who has been now made an accused in this case and has directed him to appear before the Court on the next date i.e.

17.02.2018 for his examination as a prosecution witness.

14. At this stage under Section 316 of the Cr. P. C. and Section 24 of the Evidence Act and Article 20 of the Constitution of India are being quoted for the reference, which read as follows:- “Section 316 of The Code of Criminal Procedure Section-316:- No influence to be used to induce disclosure Description: Except as provided in sections 306 and 307, no influence, by means of any promise or threat or otherwise, shall be used to an accused person to induce him to disclose or withhold any matter within his knowledge’ Section 24 of The Indian Evidence Act, 1872 -5- Section -24:- Confession caused by inducement, threat or promise, when irrelevant in criminal proceeding.—A confession made by an accused person is irrelevant in a criminal proceeding, if the making of the confession appears to the Court to have been caused by any inducement, threat or promise,1 having reference to the charge against the accused person, proceeding from a person in authority and sufficient, in the opinion of the Court, to give the accused person grounds, which would appear to him reasonable, for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him.—A confession made by an accused person is irrelevant in a criminal proceeding, if the making of the confession appears to the Court to have been caused by any inducement, threat or promise,2 having reference to the charge against the accused person, proceeding from a person in authority and sufficient, in the opinion of the Court, to give the accused person grounds, which would appear to him reasonable, for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him." Artiel 20 of the Constitution of India. Protection in respect of conviction for offences (1) No person shall be convicted of any offence except for violation of the law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence (2) No person shall be prosecuted and punished for the -6- same offence more than once (3) No person accused of any offence shall be compelled to be a witness against himself.”

15. It transpires that the petitioner is the informant of this case and later on, has been arrayed as an accused in this case for causing loss of Rupees Ten Lac (Rs. 10,00,000/-) in connivance with the other Bank Officials.

16. So far as the petition filed by the prosecution under Section 311 of the Cr. P. C. is concerned, it is evident that from the provisions of Section 316 of the Cr. P. C. and Section 24 of the Indian Evidence Act that the accused cannot be induced to give evidence influenced or threatened against himself.

17. Even as per Article 20(3) of the Constitution of India, which is a constitutional mandate, no person accused of any offence shall be compelled to be a witness against himself.

18. So far as the judgment rendered by the Hon’ble Supreme Court in the case of Mohanlal Shamji Soni Vs. Union of India Another reported in AIR 1991 SC 1346, which has been relied by the learned counsel for the State is concerned, the same is not applicable in this case, in view of the fact that in the above case, the prosecution after examination of the entire witness and after recording the statement of the accused under Section 313 of the Cr.P.C., when the case was of fixed for argument and then subsequently the prosecution has filed a petition to examine some more witnesses under Section 311 of the Cr. P. C, which was not allowed by the learned Court below, and hence the order was passed. However, in this case, the petitioner himself is an accused in this case.

19. In view of the above provision mentioned above, the -7- impugned dated 05.02.2018 passed by the learned Chief Judicial Magistrate, Dumka in connection with Dumka (Town) P. S. Case No. 161 of 2006 corresponding to G. R. No. 938 of 2006 is set aside in the interest of justice and the matter is remitted back to the learned Court below to pass a fresh order in accordance with law.

20. The Criminal Revision No. 242 of 2018 is allowed and stands disposed of with the observation mentioned above. Kamlesh/ (Sanjay Prasad, J.)