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Section 132 only protects the accused in the case where he is compelled to answer a question and not where the accused voluntarily answers

Nihal Thareja ,
  23 July 2020       Share Bookmark

Court :

Brief :
As per the dissenting opinion of Justice Birchwood, section 132 of the Indian Evidence Act read with section 14 of the Indian Oaths’ Act, compels a witness to answer criminating questions and he is protected by the proviso to section 132 from criminal prosecution for any offence in which he criminates himself directly or indirectly by his answer, except a prosecution for giving false evidence by such answer. It is not only when a witness asks to be excused from answering a criminating question, and his request is refused, that he is “compelled to give” the answer within the meaning of the proviso. The compulsion is operative whether he asks to be executed or gives the answer without asking.
Citation :
Appellant: Ganu Sonba Respondent: Queen Empress Citation: (1888) ILR 12 Bom 440
  • Section 132- Queen-Empress vs Ganu Sonba & Anr.
  • Bench: Justice Bayley, Justice Birchwood and Justice Parsons.

Facts:

  • One Sabaji Baji obtained a decree against Kesu Ram Laka for possession of three thikanas, and in execution obtained possession of one of the thikanas on the 27th June, 1887.
  • Kesu's sister, Sarasvati bai, applied under section 332 of the Code of Civil Procedure, alleging that the thikana in question belonged to her, which was purchased by her from her father Ram Bhagvan in 1888 under a sale-deed

Issue:

  • Whether the accused were liable for abetment of forgery under sections 109 and 467 of the Indian Penal Code
  • The scope of compelled under section 132 of the Indian Evidence Act (hereinafter referred to as the “Act”)

Contentions of the Respondent:

  • That the sale deed had been fabricated and committed through the acts of Sarasvati bai and her accomplices Ganu, Bhikaji and Tukia who thereby are liable for forgery and abetment to forgery.

Contentions of the Appellant:

  • That the sale deed was executed by Ram Bhagvan on of the 2nd November, 1875, and the same had been attested by the Appellants in their presence.

Background:

The Subordinate Judge made an enquiry where the accused Ganu Sonba and Bhikaji Hari were examined as witnesses for Sarasvatibai. The Subordinate Judge, however, disbelieved the evidence and found that the sale-deed was a fabrication, and committed Sarasvatibai and her accomplices— Kesu Ganu, Bhikaji and Tukia. The Court of Session took their trial, on a charge of forgery and the others for abetment of forgery. The Acting Sessions Judge convicted both of abetment of forgery under sections 109 and 467 of the Indian Penal Code and sentenced them each to one year’s rigorous imprisonment. Against this conviction and sentence, both Ganu and Bhikdji appealed to the High Court.

Judgment:

As per the dissenting opinion of Justice Birchwood, section 132 of the Indian Evidence Act read with section 14 of the Indian Oaths’ Act, compels a witness to answer criminating questions and he is protected by the proviso to section 132 from criminal prosecution for any offence in which he criminates himself directly or indirectly by his answer, except a prosecution for giving false evidence by such answer. It is not only when a witness asks to be excused from answering a criminating question, and his request is refused, that he is “compelled to give” the answer within the meaning of the proviso. The compulsion is operative whether he asks to be executed or gives the answer without asking.

The court through its majority opinion cited the case of The Queen vs Gopal Dass. As per Justice Pearsons, the Legislature in section 132 has made a clear distinction between those cases in which a witness voluntarily answers a question and those in which he is compelled to answer, and has given a protection in the latter of those cases only. Justice Bayley, the acting Chief Justice relied on the case and the findings of Justice Pearson and accordingly.

The appeal was dismissed and the decision of the Session’s court followed which held the appellants liable for forgery and abetment to forgery.

 
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Published in Constitutional Law
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