The scope of Section 132 of the Evidence Act fell for consideration of Supreme Court in Laxmipat Choraria & Others v. State of Maharashtra, (1968) 2 SCR 624. Three appellants (brothers) were convicted for the offence under Section 120-B of the Indian Penal Code and Section 167(81) of the Sea Customs Act, 1878. Briefly stated the facts are that the three appellants before this Court were part of an international gold smuggling organization. The kingpin of the organization was a Chinese citizen living in Hong Kong. One Ethyl Wong, an Air Hostess of Air India was also a member of the abovementioned organization and carried gold on "several occasions". She was examined as a prosecution witness in the case. "She gave a graphic account of the conspiracy and the parts played by the accused and her own share in the transaction. Her testimony was clearly that of an accomplice."
40. Before this Court, the main argument was that "Ethyl Wong could not be examined as a witness because (a) no oath could be administered to her as she was an accused person since Section 5 of the Indian Oaths Act bars such a course and (b) it was the duty of the prosecution and/or the Magistrate to have tried Ethyl Wong jointly with the appellants. The breach of the last obligation vitiated the trial and the action was discriminatory. In the alternative, even if the trial was not vitiated as a whole, Ethyl Wong's testimony must be excluded from consideration and the appeal reheard on facts here or in the High Court".
41. Dealing with the question whether Ethyl Wong should have been prosecuted along with other accused, this Court opined: "The prosecution was not bound to prosecute her, if they thought that her evidence was necessary to break a smugglers' ring. Ethyl Wong was protected by s. 132 (proviso) of the Indian Evidence Act even if she gave evidence incriminating herself. She was a competent witness...."
42. Dealing with the immunity conferred under Section 132, this Court held thus:
"Now there can be no doubt that Ethyl Wong was a competent witness. Under Section 118 of the Indian Evidence Act all persons are competent to testify unless the court considers that they are prevented from understanding the questions put to them for reasons indicated in that section. Under Section 132 a witness shall not be excused from answering any question as to any matter relevant to the matter in issue in any criminal proceeding (among others) upon the ground that the answer to such question will incriminate or may tend directly or indirectly to expose him to a penalty or forfeiture of any kind. The safeguard to this compulsion is that no such answer which the witness is compelled to give exposes him to any arrest or prosecution or can it be proved against him in any criminal proceeding except a prosecution for giving false evidence by such answer. In other words, if the customs authorities treated Ethyl Wong as a witness and produced her in court, Ethyl Wong was bound to answer all questions and could not be prosecuted for her answers. Mr. Jethmalani's argument that the Magistrate should have promptly put her in the dock because of her incriminating answers overlooks Section 132 (proviso). In India the privilege of refusing to answer has been removed so that temptation to tell a lie may be avoided but it was necessary to give this protection. The protection is further fortified by Article 20(3) which says that no person accused of any offence shall be compelled to be a witness against himself. This article protects a person who is accused of an offence and not those questioned as witnesses. A person who voluntarily answer questions from the witness box waives the privilege which is against being compelled to be a witness against himself, because he is then not a witness against himself but against others. Section 132 of the Indian Evidence Act sufficiently protects him since his testimony does not go against himself. In this respect the witness is in no worse position than the accused who volunteers to give evidence on his own behalf or on behalf of a co-accused. There too the accused waives the privilege conferred on him by the article since he is subjected to cross- examination and may be asked questions incriminating him."
43. In substance, Apex Court held that once the prosecution chose to examine Ethyl Wong as a witness she was bound to answer every question put to her. In the process, if the answers given by Ethyl Wong are self- incriminatory apart from being evidence of the guilt of the others she could not be prosecuted on the basis of her deposition in view of the proviso to Section 132 of the Evidence Act. This Court's conclusions that "in India the privilege of refusing to answer has been removed ....." and that "the safeguard to this compulsion" in our opinion, are clearly in tune with the dissenting opinion expressed by Ayyar, J. in Gopal Doss's case. This Court opined that the proviso to Section 132 of the Evidence Act is a necessary corollary to the principle enshrined under Article 20(3) of the Constitution of India which confers a fundamental right that "no person accused of any offence shall be compelled to be a witness against himself." Though such a fundamental right is available only to a person who is an accused of an offence, the proviso to Section 132 of the Evidence Act creates a statutory immunity in favour of a witness who in the process of giving evidence in any suit or in any civil or criminal proceeding makes a statement which criminates himself. Without such an immunity, a witness who is giving evidence before a Court to enable the Court to reach a just conclusion (and thus assisting the process of law) would be in a worse position than an accused in a criminal case.
The sweep of Article 20 fell for consideration of this Court in Nandini Satpathy v. P.L. Dani & Another, (1978) 2 SCC 424. Justice V.R. Krishna Iyer spoke for the bench. (i) It was a case where a crime under the Prevention of Corruption Act and certain other offences under the Indian Penal Code came to be registered against Nandini Satpathy, former Chief Minister of Orissa.
(ii) This Court examined the scheme of Article 20(3) and Section 161(2) and opined that "..... we are inclined to the view, terminological expansion apart, the Section 161(2) of the CrPC is a parliamentary gloss on the constitutional clause". This Court also recognised that protection afforded by Section 161(2) is wider than the protection afforded by Article 20(3) in some respects. "...The learned Advocate General, influenced by American decisions rightly agreed that in expression Section 161(2) of the Code might cover not merely accusations already registered in police stations but those which are likely to be the basis for exposing a person to a criminal charge. Indeed, this wider construction, if applicable to Article 20(3), approximates the constitutional clause to the explicit statement of the prohibition in Section 161(2). This latter provision meaningfully uses the expression 'expose himself to a criminal charge'. Obviously, these words mean, not only cases where the person is already exposed to a criminal charge but also instances which will imminently expose him to criminal charges. In Article 20(3), the expression 'accused of any offence' must mean formally accused in praesenti not in futuro - not even imminently as decisions now stand."
(iii) This Court opined that there is "cluster of rules" commonly grouped under the term 'privilege against self-incrimination'. The origins of such privilege against self-incrimination are traceable to a sharp reaction to the practice of the court of Star Chamber which readily convicted persons on the basis of self-incrimination. Such a rule of the common law is embodied in Article 20(3) of the Constitution of India.
(iv) This Court opined that the protection of Article 20(3) is available not only to a person who is facing trial for an offence before a Court of law but even to a person embryonically accused by being brought into police diary. In other words, 'suspects' but 'not formally charged' are also entitled for the protection of Article 20(3).
45. The rule against self-incrimination found expression in Indian law much before advent of the Constitution of India [under Article 20(3)]. Facets of such rule are seen in (i) Section 161 Cr.P.C., 1898. Sub-section (1) authorised a police officer investigating a case to examine any person "supposed to be acquainted with the facts and circumstances of the case". Sub-section (2) exempted such person from answering the questions "which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture". Section 161 of the Cr.P.C., 1973 corresponds to Section 161 of the Cr.P.C., 1898. Sub-sections (2) of both the old and new Code are substantially identical.
(ii) Another facet of the rule against self-incrimination finds expression in Sections 25 and 26 of the Evidence Act which make a confession made to a police officer or a confession made while in the custody of the police inadmissible in evidence.
(iii) The proviso to Section 132 of the Evidence Act, in our opinion, embodies another facet of the rule against self-incrimination.
Supreme Court of India
R.Dineshkumar@Deena vs State Rep. By Inspector Of Police ... on 16 March, 2015
The scope of Section 132 of the Evidence Act fell for the consideration of Madras High Court as early as in 1881 in the case of Gopal Doss.
A Bench of five Judges heard the matter. The facts are as follows.
(i) A suit for summary recovery of an amount of Rs.1000/- was filed against Gopal Doss and his son Vallaba Doss. It was a suit under Order XXXIX of Code of Civil Procedure 1859, corresponding to Order XXXVII of the CPC 1908 based on a promissory note allegedly signed by Gopal Doss and his son. Both the father and son sought leave of the Court to defend the suit, which was granted. Gopal Doss denied his signature on the suit promissory note whereas his son "swore that he wrote both signatures on the promissory note according to the instructions of the plaintiff" for a monetary consideration. The suit was decreed against the son. Subsequently, Gopal Doss prosecuted his son and the plaintiff for forgery and other charges. The plaintiff was acquitted and Vallaba Doss was convicted. The question was - whether (a) the affidavit filed by Vallaba Doss in the summary suit in support of his claim for leave to defend the suit, and (b) his deposition at the trial of the said suit are admissible evidence against Vallaba Doss in the criminal case.
(ii) The matter was heard by a Bench of five Judges. Three of them held both the affidavit and deposition were admissible evidence, whereas two Judges held that only affidavit was admissible, but not the deposition. (Dissenting opinion was written by Justice Muttusami Ayyar with whom Justice Kernan agreed.)
(iii) Insofar as the deposition of Vallaba Das in the summary suit, the basic issue was whether the compulsion contemplated under Section 132 is compulsion of law arising out of a statutory obligation or compulsion by the presiding Judge by not excusing the witness from answering any particular question put to him.
Chief Justice Turner commenced from the premise that under Section 14 of the Indian Oaths Act, 1873 (corresponding to Section 8 of the Oaths Act, 1969), every person giving evidence on any subject before any court (or a person authorized to administer oaths and affirmations) shall be bound to state the truth of such subject and the Court was the authority to either compel or excuse the witness from complying with the requirement of the above-mentioned rule. Turner, CJ examined the scheme of Sections 121 to 132 of the Evidence Act and held that the expressions "compelled" and "permitted" employed in those sections "are so used as to pre-suppose a public officer having authority to compel or to permit and exercising it at the time, the necessity when such compulsion or permission arises". He further held that "..... implies an inquiry and decision on the circumstances which excuse or prohibit the compulsion or permission and action on the part of the authority presiding at the examination in pursuance of its decision". In substance, Turner, CJ opined that the compulsion is not by virtue of an obligation arising under law but imposed by the Judge.
On the other hand, both Justice Ayyar and Justice Kernan opined that the compulsion is the obligation arising out of law, but not the compulsion imposed by the Judge.
"It seems to me that the Legislature in India adopted this principle, repealed the law of privilege, and thereby obviated the necessity for an inquiry as to how the answer to a particular question might criminate a witness, and gave him an indemnity by prohibiting his answer from being used in evidence against him and thus secured the benefit of his answer to the cause of justice, and the benefit of the rule, that no one shall be compelled to criminate himself, to the witness when a criminal proceeding is instituted against him. The conclusion I come to is that Section 132 abolishes the law of privilege and creates an obligation in a witness to answer every question material to the issue, whether the answer criminate him or not, and gives him a right, as correlated to that duty, to claim that the answer shall not be admitted in evidence against him in a criminal prosecution." (per Muttusami Ayyar, J.) [emphasis supplied]
Logic of Justice Ayyar for coming to such a conclusion was: "It seems to me incongruous that the Legislature should have directed the Judge never to excuse a witness from answering a criminative question relevant to the matter in issue, and at the same time commanded the witness to ask the Judge to excuse him from answering such a question.
... Under the law of privilege, it is necessary to set it up because it is only an excuse which the Judge may or may not recognize as good, and it is his decision that either accords the privilege or withholds it; but under Section 132 it is not in the power of the Judge to excuse a witness from answering if the question is relevant to the issue. Such being the case, it is not clear to me why a witness should go through the form of asking and being refused to be excused."
Coming to the question of the admissibility of the affidavit of Vallaba Doss,
(a) Justice Ayyar opined that since the affidavit given in the summary suit was given by Vallaba Doss in his capacity as a party (but not as a witness) to the suit with a view to obtaining leave to defend the suit, it was a voluntary statement made by Vallaba Doss without any compulsion (either from the Judge or of law) within the meaning of Section 132 of the Evidence Act, and therefore, admissible evidence against Vallaba Doss, the subsequent prosecution.
(b) Justice Kernan agreed fully with the views of Justice Ayyar.
Section 132 existed on the statute book from 1872 i.e. for 78 years prior to the advent of the guarantee under Article 20 of the Constitution of India. As pointed out by Justice Muttusami Ayyar in Gopal Doss (supra), the policy under Section 132 appears to be to secure the evidence from whatever sources it is available for doing justice in a case brought before the Court. In the process of securing such evidence, if a witness who is under obligation to state the truth because of the Oath taken by him makes any statement which will criminate or tend to expose such a witness to a "penalty or forfeiture of any kind etc.", the proviso grants immunity to such a witness by declaring that "no such answer given by the witness shall subject him to any arrest or prosecution or be proved against him in any criminal proceeding". We are in complete agreement with the view of Justice Ayyar on the interpretation of Section 132 of the Evidence Act.
The proviso to Section 132 of the Evidence Act is a facet of the rule against self incrimination and the same is statutory immunity against self incrimination which deserves the most liberal construction. Therefore, no prosecution can be launched against the maker of a statement falling within the sweep of Section 132 of the Evidence Act on the basis of the "answer" given by a person while deposing as a "witness" before a Court.