Vimala v. State of Kerala and Forest Range Officer, Thamarassery

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL** **FRIDAY, THE 19TH DAY OF JULY 2013/28TH ASHADHA, 1935** **Crl.Rev.Pet.No. 1590 of 2012 () --------------------------------** **AGAINST THE ORDER IN CC 22/2011 of J.M.F.C.II, THAMARASSERY.** **REVISION PETITIONER(S):** **-----------------------** **VIMALA, DAUGHTER OF ELANDY KARAPATTAPURAYIL HOUSE, P.O. CHAMAL THAMARASSERRY, KOZHIKODE.** **BY ADV. SRI.JACOB ABRAHAM** **RESPONDENT/COMPLAINANT(S): --------------------------** **1. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM** **2. FOREST RANGE OFFICER, THAMARASSERY, KOZHIKODE-673 001.** **BY PUBLIC PROSECUTOR SRI. LIJU V. STEPHEN** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 19-07-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **K. HARILAL, J. -----------------------------------------------------Crl.R.P. No. 1590 of 2012 -----------------------------------------------------Dated this the 19[th] day of July, 2013** ## **ORDER** The revision petitioner is the 3[rd] accused in C.C.No.22/11 on the files of the Judicial First Class Magistrate's Court-II, Thamarassery. The impugned order was passed in the said case impleading the revision petitioner as the 3[rd] accused. Originally, the revision petitioner was not an accused in the case. The crime was registered against one Rabeesh and Divakaran who are the son and neighbour of the revision petitioner. The allegation against them is that they have committed the offences punishable under Secs.2(1), 16(b), 36, 9, 39(3)(a), 50(1)(b) (c), 51(1) and 57 of the Wild Life (Protection) Act,1972. It is alleged that they have captured and kept a common palm **Crl.R.P. No. 1590 of 2012** -: 2 :- civet in their house in violation of the provisions of the Wile Life (Protection) Act. 2. During the trial, all the witnesses cited by the prosecution were examined in court and thereafter, the learned Magistrate felt that the revision petitioner was a witness to be examined essentially to the just decision of the case. Consequently, summons was issued to the revision petitioner under Sec.311 of the Code of Criminal Procedure. Pursuant to the receipt of the summons, the revision petitioner appeared in court and she was examined by the court as C.W.1. After her examination, the learned Magistrate felt that the petitioner had committed the offence punishable under the Wile Life (Protection) Act and consequently, she was arraigned as the 3[rd] accused in the case by the order under challenge. Thus, this revision petition is filed challenging the above said order on various grounds. 3. The learned counsel for the revision petitioner submits that the impugned order is passed in violation of the **Crl.R.P. No. 1590 of 2012** -: 3 :- law under Sec.132 of the Indian Evidence Act. The court below ought to have found that, as a summoned witness, the revision petitioner has the protection under Sec.132 of the Evidence Act. But, the revision petitioner is now arraigned as 3[rd] accused in the above case without jurisdiction and hence the impugned order is liable to be set aside. 4. Going by the impugned order, it could be seen that she was summoned to the court invoking the power under Sec.311 of the Cr.P.C. to give evidence as a witness and she was examined as C.W.1. She deposed that the above said animal was captured from a canal laying adjacent to her house and kept it in her house in a cage. On the basis of the above said deposition, the court below arraigned the revision petitioner as the 3[rd] accused in the above case. 5. The learned counsel for the revision petitioner cited a decision reported in **Gangadharan v. Sub Inspector of Police** (1989 (2) KLT 448) and contended that when a witness is summoned by the court and she deposes before **Crl.R.P. No. 1590 of 2012** -: 4 :- court, her statement cannot be treated as a statement made voluntarily; but such statement must be treated as one made under compulsion. 6. Going by Sec.132 of the Evidence Act, the statutory mandate is 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 incriminate, such witness, or that it will expose, or tend directly or indirectly to expose, such witness be a penalty or forfeiture of any kind. But the proviso to the above Section operates as an exemption to the rigour of the above Section. The proviso says that no such answer, which a witness shall be compelled to give, shall subject him to any arrest or prosecution, or be proved against him in any criminal proceeding, except a prosecution for giving false evidence by such answer. In view of the above Section, the question to be considered is whether the answer of a witness called **Crl.R.P. No. 1590 of 2012** -: 5 :- for on summons shall be deemed to be treated as a statement given voluntarily. This question was considered by the Division Bench of this Court in **Gangadharan v. Sub Inspector of Police** (cited supra) and held as follows: “4. Thomas,J. had occasion to consider these aspects in _Kunhappan v. State of Kerala_ (1987 (2) KLT 222). In the above decision, it has been held that a voluntary statement made by a witness may stand on a different footing and the answers given by a witness either to questions put by the Court or by the counsel on either side cannot be said to be voluntary statements made by him and that it is immaterial whether he objects to the question or not. In a case where a party to a civil litigation gives evidence, it is possible to presume that he gives the evidence on his own accord. Similarly, if the accused in a criminal case offers himself to be examined as a witness, a presumption may arise that the evidence given by him is voluntary. That would not be the position with regard to the evidence given by a witness summoned by **Crl.R.P. No. 1590 of 2012** -: 6 :- the court. The answer given by a witness in a court, whose presence is required by the Court either by issuance of summons or by other means cannot be equated with the answer given by a party in a civil litigation or the statement of an accused as a witness in a criminal case. The answer given by such a witness cannot be characterised as a mere voluntary statement and without any compulsion. 5. Petitioner has not voluntarily adduced evidence before the Court. Only on summons he appeared and testified. This is a case where he has been compelled to answer the question. Left to himself, he would not have come before the Court to depose. A situation in which a witness is placed when he is examined before a Court of law cannot be lost sight of. When a person is examined as a witness his natural feeling is that he has to answer the questions. If during the course of the testimony he gives answer criminating himself, he can really look forward to the **Crl.R.P. No. 1590 of 2012** -: 7 :- protection under the proviso. We agree with Thomas, J. in _Kunhappan v. State of Kerala_ (1987 (2) KLT 222) where it is held that answer given by a witness cannot be used against him in a subsequent criminal proceeding as he is entitled to the protection contained in the proviso to S.132 of the Evidence Act. 6. As the petitioner was summoned as a witness and was examined as D.W.1 and while being examined he has given an answer, that answer cannot be used against him in subsequent criminal proceedings. He is clearly protected under the proviso to S.132 of the Evidence Act”. 7. The principle that can be culled out from the above decision is that the statements for answer to a question put by the court or by the counsel on either side cannot be said to be a voluntary statement made by the witness, if the witness was called for on summons. In view of the above decision, I find that the issue involved in this revision petition is squarely covered by the above decision and **Crl.R.P. No. 1590 of 2012** -: 8 :- certainly the revision petitioner is entitled to get protection under the proviso to Sec.132 of the Evidence Act. 8. Consequently, I am inclined to set aside the impugned order under challenge and I do so. This revision petition is allowed to the above extent. Sd/- ## **(K. HARILAL, JUDGE)** ## **Nan/** //true copy// P.S. to Judge