# LAXMIPAT CHORARIA AND ORS v. STATE OF MAllARASHTRA f)ecember 14, 1967

- **Citation:** [1968] 2 S.C.R. 624
- **Court:** Supreme Court of India
- **Decided:** 1968
- **Case number:** Criminal Appeals Nos. D 50---52 of 1964
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/laxmipat-choraria-and-ors-v-state-of-mallarashtra-f-ecember-14-1967-4251
- **Pages:** 17

## Headnote

624
LAXMIPAT CHORARIA AND ORS.
v.
STATE OF MAllARASHTRA
f)ecember 14, 1967
(.M. HIDAYATULLAH AND C. A. VAIDIALINGAM, JI.]
Evidence Acf, 1872, ss. 118, 132, 133---<:rimi11a/
Procedure
Code,
1898, s.r. 337, 338, 342(4) llJld 494-Jndian Oaths Act, s. 5-Appellants
convicted under s. 1208 ands. 167(81) of Sea Customs Act of smuggl·
ing-Accomplice giving evidence nut
prosecuted-Whether
pro_1!cu1ion
or Magistrate bourtd to arraign 11ccon1plice 1t•here cornplaint by Anistr.nl
Collector exclude1 him-Upon failure ro make! accon1plice an accused if
he can
111! conipetent witness-Plro.•ostat copies of doc11n1ents-Wlren
admissible evidence.
Cons1itution of India, Art. 14--Taking acconrp/ice evidence by usin~
s. 494 Cr. P.C. if constitutional.
1be throe appellants were convicted under s. 1208 l.P.C. ands. 167(81)
of the Sea Customs Act for having entered into a criminal conspiracy among
themselves and with a Chinese citiun in Hong Cong to smuggle gold into
India with the help of E, an Airlines.stewardess. E gave evidence at the trial
as a wi~ for the prosecution. Her teStimony "'as clearly that uf an ac--
complicc and although she could have been prosecuted. she was not arraigned.
It was contended, Inter alia, on behalf of the appellants (i) that it
waa the duty of the prooecution and/ or the MaJlistrate to have tried E
jointly "ith the •pPellants and the breach of this obligation vitiated the
trial; in the alternative, E'a testimony must be excluded from consideration
and tho appeal re-heard on the factS; (ii) that no oath could be adminis·
1ered to E as she was an accused pcr.;on in 'a criminal procc.!ding' within
the meaning of s. 5 of the Indian Oaths Act as shown by her own state·
ment& made to the Customs officials and in Court; she could nee therefore
be examined as a witness; furthermore. the provisions relating to tender
of pardon ~o accomplices contained in Chapter XIV of the Criminal Procedure Code do not apply to offences under s. 1208 (first Part)
l.P.C.
and a. 168 ( 81) of the Sea Customs Act; the only ways in which E's testi·
mony could have been obtained was either to tal;e her plea of guilty and
convict and sentence her or withdraw lhc prosecution against her undc'r
s. 494 Cr. P. C. Not to send up a person for trial with the sole object of
taking accomplice evidence is illegal.
Furthermore. under s. 351 read with
s. 91 of the Code it was the duty of the Court to have detained E and included her in the array of accused before it; (iii) the evidence of E in
re,;pect of the identification of two of the appellants was inadmissible because she had been shown ~heir photographs before her statements were
taken; (iv) the photosrats of certain documen•s without the production of
the originals were wrongly admitted and should have been excluded· and
(v) selection of E as one out of sc-ver31 accused "·as discrin1inat;I') ..
HELD : dismissing the appeal,
B
c
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F
G
(i) The offences were non-cognizahlc and \\.\:re inve~-.:igatcd bv customc;
H
officers under the Sea Customs Act and not by the police. under- Chapter
XIV of the Code. Therefore. no question of the application of«. 169 and
170 arose.
The accused were pla'-'"'id on trial on the complaint of the
••
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CHORARIA v. MAHARASHTRA (Hidayatul/ah, J.)
62S.
Assi•tant Collector of Customs under the authority of. the Chief Customs
Officer Bombay.
Although the Magistrate was
takmg cogruzanoe of
offence~ and not of offenders, it was no part of his duty to find offe.nders
in view of the bar of s. 187 A if the complaint did not name a t>alllicular
offender. All that the Magistrate could do was to take a bond from E
for her appearance in court if required. [629 C-E]
Under s. 118 of the Evidence Act, all persons are competent to
testify unles the court considers that they are . p~evented from un~er
standing the questions put to them for reasons 1nd~cated m ah.at section.
Under s. 132 a witness is not excused from answering any relevant qu~s
tion upon the ground that the answer will i

## Text

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624
LAXMIPAT CHORARIA AND ORS.
v.
STATE OF MAllARASHTRA
f)ecember 14, 1967
(.M. HIDAYATULLAH AND C. A. VAIDIALINGAM, JI.]
Evidence Acf, 1872, ss. 118, 132, 133---<:rimi11a/
Procedure
Code,
1898, s.r. 337, 338, 342(4) llJld 494-Jndian Oaths Act, s. 5-Appellants
convicted under s. 1208 ands. 167(81) of Sea Customs Act of smuggl·
ing-Accomplice giving evidence nut
prosecuted-Whether
pro_1!cu1ion
or Magistrate bourtd to arraign 11ccon1plice 1t•here cornplaint by Anistr.nl
Collector exclude1 him-Upon failure ro make! accon1plice an accused if
he can
111! conipetent witness-Plro.•ostat copies of doc11n1ents-Wlren
admissible evidence.
Cons1itution of India, Art. 14--Taking acconrp/ice evidence by usin~
s. 494 Cr. P.C. if constitutional.
1be throe appellants were convicted under s. 1208 l.P.C. ands. 167(81)
of the Sea Customs Act for having entered into a criminal conspiracy among
themselves and with a Chinese citiun in Hong Cong to smuggle gold into
India with the help of E, an Airlines.stewardess. E gave evidence at the trial
as a wi~ for the prosecution. Her teStimony "'as clearly that uf an ac--
complicc and although she could have been prosecuted. she was not arraigned.
It was contended, Inter alia, on behalf of the appellants (i) that it
waa the duty of the prooecution and/ or the MaJlistrate to have tried E
jointly "ith the •pPellants and the breach of this obligation vitiated the
trial; in the alternative, E'a testimony must be excluded from consideration
and tho appeal re-heard on the factS; (ii) that no oath could be adminis·
1ered to E as she was an accused pcr.;on in 'a criminal procc.!ding' within
the meaning of s. 5 of the Indian Oaths Act as shown by her own state·
ment& made to the Customs officials and in Court; she could nee therefore
be examined as a witness; furthermore. the provisions relating to tender
of pardon ~o accomplices contained in Chapter XIV of the Criminal Procedure Code do not apply to offences under s. 1208 (first Part)
l.P.C.
and a. 168 ( 81) of the Sea Customs Act; the only ways in which E's testi·
mony could have been obtained was either to tal;e her plea of guilty and
convict and sentence her or withdraw lhc prosecution against her undc'r
s. 494 Cr. P. C. Not to send up a person for trial with the sole object of
taking accomplice evidence is illegal.
Furthermore. under s. 351 read with
s. 91 of the Code it was the duty of the Court to have detained E and included her in the array of accused before it; (iii) the evidence of E in
re,;pect of the identification of two of the appellants was inadmissible because she had been shown ~heir photographs before her statements were
taken; (iv) the photosrats of certain documen•s without the production of
the originals were wrongly admitted and should have been excluded· and
(v) selection of E as one out of sc-ver31 accused "·as discrin1inat;I') ..
HELD : dismissing the appeal,
B
c
D
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(i) The offences were non-cognizahlc and \\.\:re inve~-.:igatcd bv customc;
H
officers under the Sea Customs Act and not by the police. under- Chapter
XIV of the Code. Therefore. no question of the application of«. 169 and
170 arose.
The accused were pla'-'"'id on trial on the complaint of the
••
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CHORARIA v. MAHARASHTRA (Hidayatul/ah, J.)
62S.
Assi•tant Collector of Customs under the authority of. the Chief Customs
Officer Bombay.
Although the Magistrate was
takmg cogruzanoe of
offence~ and not of offenders, it was no part of his duty to find offe.nders
in view of the bar of s. 187 A if the complaint did not name a t>alllicular
offender. All that the Magistrate could do was to take a bond from E
for her appearance in court if required. [629 C-E]
Under s. 118 of the Evidence Act, all persons are competent to
testify unles the court considers that they are . p~evented from un~er
standing the questions put to them for reasons 1nd~cated m ah.at section.
Under s. 132 a witness is not excused from answering any relevant qu~s
tion upon the ground that the answer will incriminate him or expose him
to a penalty of forfeiture of any kind and when .compelled to answer
such question is prote:::ted 'against arrest or prosecution by t~e safeguard
in the proviso to· s. 132 as well as in Art. 2~(3). The ev1.dence of E
could not therefore be ruled out as that of an incompetent witness. Since
E was a self-confessed criminalt in conspiracy with others who
wer~
being tried, her evi.Jence was accomplice evidence. S. 133 of the Evidence Act makes the accomplice a competent witness against an accused
. person. For this reason also E's testimony was that: of a competent
witness. [630 B-HJ
Iii) The competency of an accomplice is n.ot destroyed becaMse he
could have been tried jointly with the, accused but was not and was
instead made to give evidence in ,the case.
Section · 5 of the
Indian
Oa'hs Act and s. 342 of the OxJ.e of Criminal Procedure do not stand
'rn the way of such a procedure.
If any accomplice is not prosecuted but is tendered as a witness, the
bar of the Indian Oaths Act ceases because the person is not an accused
person in a criminal proceeding. The interrelation of s. 342(4) of the
Code and s. 5 of the Indian Oaths Act. both of which p'rOhibited the giving
of oath or affinnation to an accused on trial is fnlly evidenced by the
simultaneous ·amendment of the Code in 1955 by which the right to give
evidence on oath is confene<I on the accused and provisions in parl
materia are made in s. 5 of the Oaths Act. The only prohibition against
the use of accomplice testimony exists in the rule of caution about corrobc>ration and the interdiction, of influence in any form by s. 343 of the
Code,, If any influence by way of promise of pardon has to be made,
the provisions of ss. 337 and 338 or of the Criminal Law Amendment
Act have to be observed. That, however, applies to special kinds of cases
of which the present was not one. [632 F-HJ
The expression. 'criminal proceeding' in the exclusionary clause of
•. 5 of the Indian Oaths Act cannot be used to widen the meaning of the
word 'accused'.
The same expression is used in. the proviso to s. 132
of the Indian Evidence Act and there it means a criminal trial and not
investigation. The same me·aning muSit be given to the
e·xclusionary
clause of s. 5 of the Indian Oaths Act tu make it conform to the provisions in pari Jnateria to be found in ss. 342, 34:?.A of the Code and
•· 132 of the Indian Evidence Act.
The expression is also not rendered
superftuO\lS beC'ause, given this meanin_g, it limits 1the operation. of the
exclusionary clause to criminal nrosecutions as opposed to investigations
nod civil proceeding•. [633 D-F]
(iii) If the court is satisfied that there is no trick photography
ancf
the• photograph i<; above stispicion. the photograph can be rece1yed in
evidence.
It is. of course, always admissible to p'rove the contents of
the document, but subject to the snfeguards indicated to prove th-e author~
ship. This is all the more so in India under s. I 0 of the Evidence Act
626
SUPREME COURT REPORTS
(1968] 2 S.CR.
to prove participation in a conspiracy.
Detection and proof of crime
A
will be rendered not only not easy buL sometimes impossible if corapirators begin
to correspond through photographs of lctter5 instead of
originals.
But evidence of pho:ographs to prove v;ritin~ or handY;riting
can only he received if the original cann-.:n he obtained and the photJgraphic reproduction is faithful and no! faked or false.
In the present
ca\C no such suggestion exists and the originals having been suppressed
by the accused, were not available.
The evidence of pho:ographs as to
the cootenrs and as to hanJ\\'riting was reco:vablc. [638 F-H]
B
(iv) If rhe proseoution had to rely only on the identifica:ioo by E to
fix th<: iden ity of the suspects, th~ fact that their pho:ographs were shown
to her would hav·o materially affected the value of identification.
However there \\'as considerable other evidence of identification and the pro--
.liCcution \\'as not required to rely only on this identification.
(v) Section 337 Cr.P.C. has been held not to offend Art. 14 and the
C
matter of taking accomplice evideoce
ou:sid~ s. 33 7 by using s. 494
or otherwise is not very different.
It cannot be held that there was any
breach qf the Constitution in selecting E ou: of several accused to give
ev:dence. (640 Fl
Case Jaw discussed.
CRIMINAL APPELLATE JURISDICTION: Criminal Appeals Nos.
D
50---52 of 1964.
Appeals from the judgment and order dated January 17, :'.->,
1964 of the Bombay High Court in Criminal Appeals Nos. 96i
to 963 of 1962.
A. K. Sen, R. Jethmalani,
Jethma/ani,
Kumar M. Mehta,
I.
B. Parthasarathy and J. B. Dadachanji, for the appellants
(in
Cr. A. No. 50 of 1964).
R. Jethmalani, Kumar M. Mehta, Jethmalani and J. B. Dadachanji, for the appellants (in Cr. As. Nos. 51 and 52 of 1964).
K. G. Khanda/awa/a, H. R. Khanna, B. A. Panda, R. H.
r
Dhebar and S. P. Na.var, for the respondent (in all the appeals).
The Judgment of the Court was delivered by
Hidayatullab, J. The appellants who ate three brothers appeal
by certificate agah :t their conviction under s. 120-B of the Indian
Penal Code and s. 167 ( 81) of the Sea Cltstocns Act and the sentences of imprisonment and fine respectively imposed on them. A
fourth brother had filed Criminal Appeal. No. 55 of 1964 but did
not press it at the hearing. One other person ( S. L. Daga) was
also convicted with them but has not appealed.
These persons
were found to have entered into a criminal conspiracy among
themselves and with others including one Yau Mockchi, a Chinese
citizen in Hong Kong, to smuggle gold into India. The method
adopted was to insert strips of golci (about 250 to/as) under the
lining of the lid of a suitcase, which could
be
retrieved by
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CHORARIA v. MAHARASHTRA (Hidayatullah, /.)
627
unscrewing the metal comer supports and pulling on strings attached to the strips. The suitcases were brought into India by air stewardnesses, and Ethyl Wong (P.W. 1), an Anglo-Chinese girl employed by Air India, was one of them. Di.scovery came, after gold
was successfully smuggled on many. occasions, when Yau Mockch
approached one Sophia Wong of the B.0.A.C. line. She was.engaged to a police officer and informed her superior officers.
A
trap was laid.
Yau Mockchi was caught with a suit-case with
gold in it after he had explained to Sophia how the gold was inserted and how it could be taken out. On the search of his person
and also of his place of busiD.ess, visiting cards of several persons
in~:ading those of Ethyl Wong and Laxmipat Choraria
(Cr!.
Appeal 50/64), photographs of Laxmipat and Balchand Choraria (Cr!. Appeal No. 52/64), their addresses and telephone numbers, and other incriminating letters, accounts, cabies, etc., were
found.
Immediately thereafter raids took place in India and at
Hong Kong where the other two accused who are not before us
(Kundanmal Choraria and S. L. Daga) were running a firm called
Global Agencies.
Numerous documents (some in simple code)
and account books were seized. Many of these documents were
photostated. The originals were unfortunately returned under the
orders of the Supreme Court oT Hong Kong and have since been
'~1ppressed. On the strength of these materials the prosecution
was started.
At the commencement of the trial Ethyl Wong was examined
as the first witness and gave a graphic account of the conspiracy
and the parts played by the accused and her own share in the
transactions.
Her testimony was clearly that of an accomplice.
Although she could have hr.en prosecuted, she was not arraigned
and it is her testimony which has been the subject of a major part
of the arguments before us. No effort has been spared to have
it excluded.
In two other appeals which we are deciding today
with these appeals, the evidence of the accomplices was also questianed on the same grounds. For convenience the whole question
has been considered here. In these appeals it is, however, admitted
that if her evidence is received, it is sufficiently corroborated both
generally and in respect of the three appellants before us.
But
the evidence of Ethyl Wong is questioned in respect of the identification of Lax..111ipat and Balchand because she was shown their
photographs
before her statement was taken.
The use of the
photostats without the originals is also questioned and it is submitted that these documents should be excluded. The main argument is 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 s. 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.
L2SupC.I./68-JO
628
/
SU!'KEME COVRT REPQRTS
\
[1968] 2 S.C.R.
The bmach of the, last obligatiol) •. i~ is submitted;-vitfated the trial
and the action w<is discriminatory.
In the alternative, it is submitt'ccl ti.at' even jf the trial was no( vitiated as· a whole, Ethyl
Wong's tcstinrony must be excl.uded from consideration and the
appeal reheard on facts here·or ,in the f!igh_Court. It is further
submitted that in any event, Ethyl Wong's evidence was so discrepant as to be wottliless. In the appeal ·of Balchand an additional point !s urged and .it is that the lncriminating documents
ag~ins"t ~jm ':<vere .:;oIIlpareG V\/th a ietter Z 217 purported tQ be
wn~ten u_y him ·but not proved to be so w,rilten . ..
Since the appeals were argued n.Jinly on Jaw, we need not
trouble .Ourselves with the facts.
Ethyl Wong admittedly carried
gold· for Yau "Mockchi on S!lVeral occasions. She admitted this in
cour: and her evidence receives ,am,ple
~orroboration as t(), the
mode employed from the statemen.t , of Sophia Wong and the
seizure of the suitcase when Yau Mockchi had explained how the
gold was secreteil.· We may say at once ,that if Ethyl Wong's evidence is not to be 'elt.c!uded from .consideration for
any reason,
.then we see rip rea_s'on not to· believe lier. Apart from tqe fact
that the High Court and the court below have concurrently believed it already, we find ample ,corroboration for it from. her own
previous statements ma~e without wa~ning, her· pointing out the
fiats where she delivered gold, her cable written in code to inform
the parties in Hong Kong after successful smuggling, her visiting
card in. the possession of· )'.au Mockchi, the passenger manifests
showing her tiip~, the.entries in.the hotel reg~ters and the telephone
calls. made by. her to the fiat; of the accused and so on and so forth.
No doubt 'there are some discrepancies in her account and she
c,<irrected her first version on ,pqints on which she- had made mistakes.
But this is explained by the fact that when she was first
accosted, she w.as upprepared .• ;in,d shocked by the. discovery. 'The
correcti,ons were ,made by her after reviewing in her mind lier past
trips and ·without. any prompting by the customi; autD.o'rities. Both.
statements were voluntary and without any collusion on the part
of the customs officials,
On the whole her testimony impressed
μs and .as it. has been.,'accepted. l;>y the High Court and the Magistraie we shall not go ipto it· for the third time. We shall accord-
"ingly address ourselves to ·the objections to its admissibility and
.the propriety of examining a· self-confessed criminal as a witness
against her former associates.
The. argument is that ~- 5 of the Ini:!ian Oaths Act proli.ibits
the administering of oath <;>r affirmation to an l)cciised person in
A
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,a criminal proceeding 11nd pthyl Wong, by her own statements
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made earlier to tl)e ,cu.stoms officials and later in court, showed
herself to be ,the unknown carrier shown at No. 12 of the complaint. Jt is, therefore, contended that she could not be examined
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CHORARl.\ v. MAHARASHTRA (Hidayatullah, J.)
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as a witness.
Next it is submitted tbat as the provisions relating
to tender of pardon to accomplices contained in Chapter XXIV
of the Code do not apply to offences under s. 120-B (First Part)
of the 1ndian Penal Code ands. 168(81) of tbe Sea Customs Act.
the only two ways in which Ethyl Wong's testimony could have
been obtained was either to take her plea of guilty and convict
and sentence her or to witbdraw the prosecution against her under
s. 494, Indian Penal Code. Not to send up a person for trial
with the sole object of tal:ing accomplice evidence is said to be
illegal. Further it is argued that under s. 351 read witb s. 91 of
the Code it was the duty of the Court to have detained Ethyl
Wong and included her in the array of accused before it.
We.
shall now consider these arguments.
..
The offences were non-cognizable and were not investigated
by the police. The investigation was by customs officers under the
Sea Customs Act and not by the police under Chapter XIV of the
Code.
Therefore, no question of the application of ss. 169 and
170 arose. Ethyl Wong's statements were obtained under s. 171-A
of the Sea Customs Act.
The persons were placed for trial on
the complaint of the Assistant Collector of Customs under
tl1e
authority of the Chief .customs Officer, Bombay.
Although the
Magistrate was taking cognizance of offences and not of offenders.
it was no part of his duty to find offenders in view of the bar of
s. 187 A if the complaint did not name a particular offender. AH
that the Magistrate could do was to take a bond from Ethyl Wong
for her appearance in court if required. At the time of Ethyl
Wong's examination the appellants had raised tbe question that
she should also be tried.
The Magistrate said that he would later
consider the matter. Then it appears to have been forgotten. Nor
did the appellants raise the question again. Apparently they only
wanted that Ethyl Wong should be tried jointly with them so that
her testimony might not be available against them but were not
interested in her separate trial.
In so far as the customs authorities are concerned it is clear
that they had some reason to think that Ethyl Wong might be one
of the carriers as her visiting card was found with 26 other such
cards in Yau Mockchi's possession.
But it" was not certain that
she was one of the carriers until she was questioned or there was
some other evidence against her. The: complaint was filed in court
on April 6, 1960 and the .:ase was to commence on January 2,
1961.
On December 27, 1960 Ethyl' Wong landed at the Bombay Air Terminal. Two customs officers were waiting for her and
questioned her.
It was then that Ethyl Wong made her first statement (Ex. 1) admitting het own share in the smuggling racket
set up by Yau Mockchi.
On December 29, 1960 she gave a
second. statement (Ex. 2) and corrected certain inaccuracies in
630
SUPREME COURT REPORTS
[1968] 2 S.C.R.
her first statement. On January 2, 1961 she was examined as the
first prosecution witness.
Now there can be no doubt that Ethyl Wong was a competent
witness.
Under s. 118 of the Indian Evidence Act all persom
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 s. 132 a witness shall not be
excused from answering any question as to any matter relevant to
the matter in issue in any criminal proceediniz (among others)
upon the gruund that the answer to such question.will incriminate
or may tend directl:r 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 an,wers.
Mr. Jethmalani's argument that the
Magistrate should have promptly put her in the dock because of
her incriminating an,wers overiuoks s. 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 Art.
20 ( 3)
which says that no person accused of any offence shail be compelled to be a witness against himself.
This article protects a
person who is accused of an offence and not these qu~stioned 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 bchal( of a coaccused. 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.
The evidence of Ethyl Wong cannot. therefore,
be ruled out as that of an incompetent witness. Since Ethyl Wong
was a self-confessed criminal, in conspiracy with others who were
being tried, her evidence was accomplice evidence.
The word
accomplice is ordinarily used in connection with the law of evidence and rarely under the substantive law of crimes. Accomplice
evidence denotes evidence of a participant in crime with others.
Section 133 of the Evidence Act makes the accomplice a competent witness against an accused person. Therefore, Ethyl Wong·s
testimony was again that of a competent witness.
It has been
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CHORARIA V. MAHARASHTRA (Hidayatul/ah, J.)
631
subjeeted to scrutiny and the usual checks for corroboration and
was, therefore, received with due caution. The short question that
remains is whether she could be administered an oath in view of
the prohibition in s. 5 of the Indian Oaths Act.
We have already shown above that Ethyl Wong was not an
B
saccused person at the trial. Now the Indian Oath Act provides :
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"5. Oath or affirmation shall be made by the following persons :
(a) all witnesses, that is to say, all persons who may
lawfully be examined or give, or be required to
give, evidence by· or before any court or person
having by law or consent of parties authority to
examine such persons or to reeeive evidence;
Nothing herein contained shall render it lawful
to administer, in a criminal proceeding, an oath
or affirmation to the accused person unless he
is examined as a witness for the defence ..... "
Mr. J ethmalani in interpreting the exclusionary clause argues
that every person against whom there is an accusation (whether
there be a prosecution pending against him or not) is an accused
person, more so a person against whom an investigation is going
on or has been made.
In this connection he has referred to those
sections of the Code of Criminal Procedure where the word
'accused' occurs and has attempted to establish that sometimes the
word is employed to denote a person on trial and sometimes a
person against whom there is an accusation but who is not yet
put on his trail.
He -has also referred
to the expression 'in a
criminal proceeding' which he says are words of sufficient amplitude to take in a person against whom an investigation is to be
made or has been made on an accusation. In either case, he submits, the case of Ethyl Wong must fall within the exclusionary
clause.
There is no need to refer to the secticns of the Code of Criminal Procedure because it may safely be assumed that the word
'accused' bears these different meanings according to the context.
That does not solve the problem of interpretation of the same
word in the Code for there it may have been used in one of the
two senses or both.
The historical reason behind the prohibition
in the Indian Oaths Act and s. 342 of the Code, need not be gone
into either. It is well-known that formerly a person on his trial
could not give evidence.
At Common Law, the parties to a civil
action were not allowed to give evidence because of their personal
. 0 LPREME COURT REPOJl.TS
(1968] 2 S.C.R .
interest and in criminal trials, the private prosecutor could j!ivc
evid~nc<: because he represented the Crown but not the accused.
1be Common Law of England was altered
by statutory enactments between 1843 and 1898 and finally by the Criminal Evidence Act 1898 the accused was allowed to give evidence.
The
discomfiture of the first person to give evidence on his own
account while under cross-examination is also well-known.
He
wa> litera!ly convicted out of his own mouth hy the cruss-examination by the Attorney General.
In India the right was first
ccnfcrred by the Code of Criminal Procedure Amendment Act
XXVJ of 1955.
This Amending Act added s. 342A to the Code :
"342. Accused person to be competent witness.
Any person accused of an offence. before a Criminal Court shall be a competent witness for the
defence and may give evidence on oath in disproof of the charges made against him or any
person charged together with him at the same
trial :
Provided thatand added the words "unless he is examined as a witness fm th~
defence" _to the exclusionary clause in s_ 5 of the Jw11an Oaths
Act. Yet the provisions of s. 343 of the Code continues that except as provided in ss. 337 and 338 of the Code, no influence. by
means of any promise or threat or otherwise shall be used on an
.1ccused person to induce him to disclose or withhold any matter
within his knowledge.
The section prohibits influence
in
two
ways--in the making of the disclosure and in the withholding of
the disclosure.
In other words, the prosecuting agency has to be
neutral unless it seeks to prosecute the person himself. If they
do not prosecute a particular person and tender him as a witne".
the bar of the Indian Oaths Act ceases because the person is not
an accused person in a criminal proceediilg_
The interrcbtion of
s. 342( 4) of the Code and s. 5 of the Indian Oaths Act, which
both prohibited the giving of oath or affirmation to an accused 0•1
trial is fully evidenced by the simultaneous amendment of the
Code in 1955 by which the right to give evidence on oath is conferred on the accused and provisions in pari materia are made in
s. 5 of the Oaths Act.
The only prohibition against the use of
accomplice testimony exists in the rule of caution about corrobo·
ration and the interdiction of influence in any form by s. 343 of
the Code. If any influence by way of promise of pardon has to
be made, the provisions of ss. 337 and 338 or of the Criminal Law
Amendment Act have to be observed. That, however, applies to
special kinds of ca'iCS of which the present is npt one. They arc
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"HORARIA V. MAHARASHTPA (Hidayatullah, J.)
633
c-oncerned with cfences triable exclusivdy by the High Court or
the Court of Session, or offences punishable with impr.son..'1le'.lt
which m.:y extend to seven years :;nd certain offences special! y
named for which specid provision has been made ia the Crimina'
Law Amendinent Act.
In other words, we are not concerned wit!!
the provisions for tender of a pardon found in the Code or tb.
Criminal Law Amendment Act.
The position that emerges is "this : No pardon could be tendered to Ethyl Wong because the pertinent provisions did not
apply.
Nor could she be prevented from making a disclosure.
if she was so minded.
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
although
her
evidencr, could only be received with the caution necessary in all
accomplice evidence. The expression 'criminal proceeding' in the
exclusionary clause of s. 5 of the Indian Oaths Act cannot be used
to widen the meaning of the word accused. The same expression
is used in the proviso to s. 132 of the Indian Evidence Act and
there it means a criminal trial and not investigation.
The same
meaning must be given to the exclusionary clause of s. 5 of ihe
Tndian Oaths Act to make it conform to the provisions in pari
materia to be found in ss. 342, 342A of the Code and s. 132 of
the Indian Evidence Act.
The expression is also not
rendered
superfluous oecause if given the meaning accepted by us it limits
the operation of the exclusionary clause to criminal prosecutions
as opposed to investigations and civil proce~dings. It is to be
noticed that although the English Criminal Evidence Act. 1898.
which (omitting the immaterial words) provides that "Every person charged with an offence ...... shall be a competent witness
for the defence at every stage of the proceedin2s" was not interpreted as conferring a right on the prisoner of giving evidence on
his own behalf before the grand jury or in other words,
it
received a limited meaning; see Queen v. Rhodes (1).
Before we leave this subject we may refer to certain rulings to
which our attention was drawn.
Mr. Jethmalini has referred to
Karim Buksh v. Q.E.,{ 2 ) Dav. Sivan Chett;v('), Parameshwarlal
v. Emperor('), Emperor v. Johrit("), Albert v. State. of Kerala( 8 ).
These cases arose in connection with s. 211 of the Indian Penal
Code. The expression "causes to be instituted criminal proceedings" was held to include the making of a report to the police or
to such officer whose duty it is to forward the report for action
(1) [1889] 1 Q.B. 77.
(2) I.LR. i7 Cal. 574 (F.B.)
(3) I.LR. 32 Mad. 25R.
('l l.L R. 4 Patna472.
(5) A.IR. 1931 All. 269.
(6) A.l.R. 1966 Kerala. I!.
634
SUPREME COURT llBPORTS
(1968] 2 S.C.R.
by the police.
It is argued that in s. 5 of the Indian Oaths Act
the words 'criminal proceedings' must receive wide interpretation.
Mr. Jethmalini also relied upon Karam //ahi v. Emper'Or(')
where a Division Bench of the Lahore High Court has held that.
since according to the Criminal Pro~edure Code a person becomes
an accused person as soon as he has been arrested by the police
for an offence, the wo~d 'accused' in s. 5 of the Indian Oaths Act
must also receive a similar meaning.
We have already shown
that the exclusionary clause in s. 5 is to be interpreted as a whole
and 'criminal proceedings' means a criminal
inquiry or a trial
before a court and the 'accused' means a person actually arraigned, that is, put on a trial. In fact this meaning finds support even
from the Lahore case on which Mr. Jethmalini relies. The scheme
of the two provisions being different it is impossible to use the
meaning given in respect of s. 211 of the Indian Penal Code, in
aid of the construction of similar words in s. 5 of the Indian Oaths
Act.
On the side of the State many cases were cited from the High
Courts in India in which the examination of one of the suspects
aa a witness was not held to be illegal and accomplice evidence
was received subject to safeguards as admissible evidence in the
case.
In those cases, s. 342 of the Code and s. 5 of the Indian
Oaths Act were considered and the word 'accused' as used in tho~e
sections was held to denote a person actually on trial before a
court and not a person who could have been so tried. The witness
was, of course, treated as an accomplice. The evidence of sur'i
an accomplice was received with necessary caution in those cases.
These cases have all been mentioned in / n re K andaswami Gounder('), and it is not necessary to refer to them in detail here.
The
leading cases are: Queen Emperor v. Mona Puna('). Banu Singh
v. Emperor('), Keslzav Vasudeo Kortikar v. Emperor('). Empress
v. Durant('). Akhny Kumar Mookerjee v. Emperor('), A. V.
Joseph
v.
Emperor(') Amdumiyan and others v.
Crown(').
Gg/hi~her v. Empt'rnr(' 0 ), and Emperor~41. Har Pra<ad, Bhargava("). In the>e cases (and several others cited and relied
upon in them) it has heen consistently held that the evidence of
an accomplice may be read although he could have been tried jointly
with the accused.
In some of these cases the evidence was received althou~h the procedure of s. 337, Criminal Procedure Code
was applicable but was not followed.
It is not necessary to deal
with this question any further because the consensus of opinion
(ll A.l.R. 1947 Lah. 9~.
(3l J.L.R. 16 Jlom. f6'.
(5) l.L.R. 59 Rom. 355.
(7) l.L.R. 45 Oel. 72•>.
(9J J.L.R. 19ltNag. 315.
(11) I.LR. 45 All. 226.
(cl A.l.R. 1957 Mad. 7r/.
(-I) l.L.R. >J Cal. 1353.
(6) 1.L.R. 23 !lorn. 213.
<') l.L.R. 3 Raog. II.
(1"} I.LR. 54 Cal. 52.
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CHORAR!A V. MAHARASHTRA (Hidayatullah, J.)
635
in India is that the competency of an accomplice is not destroyed
because he could have been tried jointly with the accused but was
not and was instead made to give evidence in the case. Section 5
of the Indian Oaths Act and s. 342 of the (;:ode of Criminal Procedure do not stand in the way of such a procedure.
It is, however, necessary to say that where s. 337 or 338 of
the Code apply, it is always proper to invoke those sections and
follow the procedure there laid down.
Where these sections do
not apply there is the procedure of withdrawal of the case against
an accomplice.
The observations of Cockburn, C.J. and Blackburn and Mellor, JJ. in Charlotte Winsor v.
Queen(') must
always be borne in mind.
Cockburn, C.J. observed :
"No doubt that state of things, which the resolution
of the judges, as reported to have been made in Lord
Hold's time, was intended to prevent, occurred; it did
place the prisoner under this disadvantage; whereas,
upon the first trial that most important evidence could
not be given against her, it was given against her upon
the second, so that the discharge . of the jury was productive to her of that disadvantage. I equally feel the
force of the objection that the fellow prisoner was allowed to give evidence without having been first acquitted,
or convicted and sentenced.
I think it much to be
lamented."
To keep the sword hanging over the head of an accomplice and
to examine him as a witness is to encourage perjury. Perhaps
it will be possible to enlarge s. 337 to take in certain special
laws dealing with customs, foreign exchange, etc. where accom-·
plice testimony will always be useful and witnesses will come forward because of the conditional pardon offered to them. We are,
therefore, of the opinion that Ethyl Wong's evidence was admissible.
The case was one under s. 120-B of the Indian Penal Code.
As the existence of a conspiracy is proved beyond . a shadow of
doubt, s. 10 of the Indian Evidence Act is attracted. That section
provides:
"10. Things said or done by conspirator in reference
to common design.
Where there is reasonable ground to believe that two
or more persons have conspired together to commit an
offence or an actionable Wrong, anything said,. done or
written by any one of such persons in reference to their
common intention, after the time when such intention
(I) (1966] I Q.B. 28,.
636
SUPREME COURT REPORTS
[ 1968] 2 S.C.R.
was first entertained by any . one of them, is a relevant
fact as
against each of the persons believed to be so
conspiring, as well for the purpose gf proving the existence of the conspiracy as for the purpose of showing
that any such person was a party to it."
The conspiracy was headed by Yau Mockchi who in a sense was
the brain behind the whole racket.
The discovery with him of
the visiting card and photograph of Laxnil'pat and the photograph
and addresses of Balchand was an incriminating circumstance as
Ethyl Wong was connected with Yau Mockchi on the one hand
and these brothers at the other.
Further letters and writings
of all the bn1thers were seized which were related to the cClnspiracy.
Unfortunately, the originals were not available at the trial but
only photostats of the letters. The photostats have been proved to
our satisfaction to 00. genuine photographs of the letters.
The
~-opies were made through the Indian Embassy and bore the certificate.
The use of the photostats without the originals was questioned before us out not in the High Court. Since it was a pure
question of la""., we allowed it to be raised.
It is submitted that
expe~t testimony as io handwriting can only be based upon the
examination of the originals and not photographs.
It is pointed
out that there is nothing in· the Evidence Act which makes a
photograph of a disputed writing the basis of conviction.
Nor,
it is submitted, expert testimony can be invited about it. Reliance
is placed on M'Cul/ough v. Munn(') and Phipson on Evidence
I 0th Edition p. 146.
·
In our opinion this submission cannot be accepted.
Apart
from the fact that this was not argued in the High Court and the
handwriting was admitted there, the law as propounded is not
sound.
The originals were suppressed by the appellants after
they were returned.
The order of the Supreme Coun of Hong
Kong has not been produced before us and we do not know·why
the original documents were returned.
Adequate precaution
against the suppression of these documents apparently was not
taken.
This was perhaps necessary because the offence was a
part of an international smugglinj! racket, in which offenders had
to be tried in two different countries and both countries needed
the documeRts as evidence. If the phocostats were not available
this prosecution would have been greatly jeopardised.
Even if the originals be not forthcoming, opinions as to handwritin~ can be formed from the photographs. It is common.knowledge that experts themselves base their opinion on enlarged photographs. The photos were facsimiles of the writings and could be
compared with the enlargements of the admitted
comparative
(I) (190SJ 2 !.R. t94.
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CHORARIA v. MAHARASHTRA (Hidayatullah, J.)
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material. In Phipson (10th Edn.) paragraphs 316/317 the rules
as to identification of handwriting is stated. from .the Criminal Procedures Act, 1865 as follows :-
·
"Comparison of a disputed writing with any writing
proved to be satisfaction of the judges to be genuine
shall be permitted to be made by witnesses etc ...... "
(para 316)
In dealing with the scope of the rule, Phipson observeS :
"Under the above Act, both the disputed and the
genuine writings must be produced in court, and the
former, if lost, cannot be compared, either from JI1emory
or from a photographic copy, with the latter, and the
latter must also be duly proved therein."
(para 317).
Phipson himself in paragraph 316 observes that the production
of 'real' evidence is not now compulsory. For the first part of
the proposition in paragraph 317 reference is made to M'Cul/ough
v. Munn. (1).
That was an action for libel contained in a letter
alleged to have been written by the defendant. The original was
lost but a photographic copy of the letter was available, and the
envelope had been preserved. The photograph was seen by the
jury but the Judge ruled that the photograph was evidence of the
contents of the letter but not of ihe handwriting and ccruld not be
compared with other admitted writings. The jury gave a verdict
for the plaintiff which was set aside by the Divisional Court and a
new trial was ordered. At the second trial, the photograph was
not tendered but a 'plain copy' was put in. The trial resulted in a
verdict for the defendant.
The Divisional Court refused to set
aside the verdict. The plaintiff then relied upon Lucas v.
Williams( 2 ) claiming that the photograph was evidence.
The
Lord Chancellor and Holmes L.J. observed:
·
"The plaintiff would have been justified in putting
in the photograph as evidence of the cor.tents of the libel,
and apparently it was the only legal evidence by way of
copy of its contents; and, I think, they might also, on
the authority of the decision in Brookes v. Tichborne
( 5 Ex.