Pius C. Kuriakose, J.
1. The ambit of the powers of the civil court under Rule 1 as well as under Rule 2 of Order XIX of the Code of Civil Procedure for compelling the attendance of deponents for cross-examination and the amplitude of the guarantee under Article 20(3) of the Constitution against testimonial compulsion are among the questions involved in this Writ Petition filed under Article 227 of the Constitution.
2. The defendant is the petitioner and he is aggrieved by Ext.P15 order of the learned Subordinate Judge directing him to be present in court for the purpose of cross-examination by the plaintiff for answering certain specified questions, some of which are incriminating ones, since the court felt that for arriving at a 'true and comprehensive decision in the case', such cross-examination is necessary. Under Ext.P15 the petitioner is reminded that he shall appear to answer the questions in cross-examination lest adverse inferences should be drawn by the court against him.
3. The petitioner was contractor to the plaintiff-respondent, the Food Corporation of India for the construction of certain godowns at Mavelikkara. The contract was terminated and the respondent re- arranged the work which had been left over unexecuted by the petitioner. The suit is for recovery of amounts on account of expenses incurred by the plaintiff in re-arranging the work and also on account of loss sustained by the plaintiff due to the alleged breach of contract. The contention of the defendant inter alia was that the plaintiff itself was responsible for the breach since the plaintiff failed and neglected to supply adequate quantity of steel and cement on time as a result of which the defendant was prevented and hindered from continuing the work without break. The petitioner filed Ext.P1 application for leave for service of certain interrogatories on the respondent-plaintiff including two interrogatories pertaining to the maintenance of a register by name 'Hindrance Register' which was expected to be maintained by the respondent for noting the hindrances noticed or complained of during the course of execution of works. The court allowed Ext.P1 and the plaintiff answered the two questions pertaining to hindrance register in the positive that hindrance register has been maintained and that the said register records the hindrances relating to the work. On getting Ext.P2 answers to Ext.P1, the petitioner filed Ext.P3 application for compelling the respondent to produce the hindrance register and certain other documents. Thereupon, the plaintiff filed Ext.P4 affidavit stating that the hindrance register could not be traced out and the same is either misplaced or lost. Complaining that the averments in Ext.P4 are vague, the petitioner filed Ext.P5 application seeking a direction to the plaintiff to give a clear answer as to whether the hindrance register is lost once and for all or whether the same is only misplaced. To Ext.P5 the petitioner submitted Ext.P6 reply stating that either the register is lost or the same is misplaced somewhere in the office. At that juncture, the petitioner filed Ext.P7 application under Order XIII Rule 2, producing a photo copy of the hindrance register and praying that the said photo copy be received as evidence. To Ext.P7, the respondent filed Ext.P8 objections contending that the hindrance register is not relevant for resolving the issues in the suit and that the petitioner shall be directed to produce the original of the register, if the same is in his possession, and that he shall be asked to explain as to how he obtained a copy of the register. It was further contended that the plaintiff suspects fabrication of false evidence by the defendant with the object of protracting the case further. Thereafter, the petitioner filed Ext.P9 application seeking leave of the court to serve a few more interrogatories pertaining to details regarding the hindrance register and to Ext.P9 the plaintiff filed Ext.P10 answers reiterating its position that the alleged photo copy produced by the defendant does not seem to be copy of the original and that the said copy is prima facie fabricated. Apart from filing Ext.P10, the respondents filed Ext.P11 I.A. under Order XIX Rule 2 seeking enforcement of the attendance of the defendant for cross-examination. To Ext.P11 the petitioner filed Ext.P12 counter statement (significantly not a counter affidavit) contending that the application is not maintainable in law and that there is no justification or necessity for allowing the prayer and expressing unwillingness to offer himself for cross-examination. On the same day the plaintiff filed Ext.P13 I.A. seeking initiation of proceedings against the defendant under Section 344 of the Crl.P.C. for offences allegedly committed under Sections 192, 193 and 196 of the I.P.C. To Ext.P13 the defendant filed a counter statement Ext.P14 contending that the photo copy of the hindrance register was furnished to him by oneMr. Sukumaran Nair, the then Assistant Manager of the plaintiff and that the same bears the signature not only ofMr. Sukumaran Nair but also of one Mr. Viswanathan, another official and further that the defendant is not guilty of any offence.
4. In the meanwhile the trial of the suit was taken up by the learned Subordinate Judge. Evidence on the side of the plaintiff was recorded in full and on the side of the petitioner his power of attorney holder was examined as D.W.1. Through D.W.1 Exts.B2 to B41 were got marked, but subject to objections by the plaintiff. Ext.B23 so marked is the controversial photo copy of the hindrance register. After examination of D.W.1 the case was posted for further evidence of the defendant and it appears that at that juncture the plaintiff pressed for a hearing of Ext.P11 resulting in Ext.P15 order.
5. I have heard the submissions of Mr. A.P. Chandrasekharan, Senior Advocate on behalf of the petitioner andSmt. S. Karthika, Advocate for the respondent.
6. Mr. A.P. Chandrasekharan would submit that Ext.P15 order which compels the petitioner to be present for cross-examination by the plaintiff in connection with Ext.P13 I.A. filed under Section 344 of the Cr.P.C. and specifically permits the plaintiff to ask the defendant as to whether the defendant has 'committed theft of the hindrance register' violates all fundamental principles of criminal jurisprudence ; and all cannons of law including the constitutional guarantee of protection against testimonial compulsion and self-incrimination. Learned Senior Counsel would place very strong reliance of the judgment of the Constitution Bench of the Supreme Court in M.P. Sharma v. Satish Chandra : 1978(2)ELT287(SC) .
7. Smt. Karthika per contra would submit that the impugned order does not amount to compelling the defendant to be witness against himself and would support the ultimate decision taken in Ext.P15 on the authority of certain passages from another judgment of the Constitution Bench of the Supreme Court in State of Bombay v. Kathi Kalu : 1961CriLJ856 . Learned Counsel also relied on the judgments of the Supreme Court in Augusthi v. Official Liquidator 1964 KLT 267 and in Nayini Narasimha Reddy v. Dr. K. Laxman : AIR2006SC2050 . According to the learned Counsel, the privilege against the testimonial compulsion and against answering self-incriminating questions is to be claimed by the witness and the privilege will become available to him only when he mounts the witness box and a question which offends the privilege is put to him.
8. I have considered the rival submissions in the light of the relevant statutory provisions and the ratio emerging from the various judgments cited at the Bar.
9. Ext.P15 order is passed by the learned Subordinate Judge on an application under Order XIX Rule 2 of the Code. There is noticeable distinction between the court's powers under Rule 1 and under Rule 2. Rule 2 is the provision which enables the court to compel the attendance of the deponent for cross-examination when evidence in support of any application is given by the deponent in the form of an affidavit. But Rule 1 enables the court in a situation where relevant facts are sought to be proved by affidavit and it appears to the court that the opposite party bona fide desires to cross-examine the deponent, to facilitate such cross-examination. In other words, Order XIX Rule 1 deals with proof of matters in issue in the suit while Rule 2 deals with reception of evidence in interlocutory proceedings. The word 'proved' has been used in Rule 1 in the sense of final proof and not prima facie proof and therefore it is almost obligatory that the court shall order attendance of the deponent when the party against whom the affidavit is submitted in attempted proof of a relevant fact is desirous of cross-examining the deponent and shall not accept the affidavit as evidence in the absence of cross- examination. But that is not the case in Rule 2 which vests a discretion in the court both in the matter of receiving evidence in the form of affidavit and also in the matter of ordering the attendance of the deponents for cross-examination. This is because Rule 2 contemplates only affidavits filed by the parties as prima facie proof of facts averred for the grant of interim reliefs. The distinction between the two provisions was noticed by a learned Judge of the Karnataka High Court in B.R. Vishwanath Singh v. Shivalingaiah : AIR1982Kant81 . Padmanabhan,J. also in Yohannan v. Mathai 1991(2) KLT Sh. Notes Case No. 36, P.25) noticed the distinction and held that Order XIX Rule 2 deals only with applications. The Supreme Court in State of J. & K. v. Bakshi Gulam Mohammed : AIR1967SC122 observed that under Order XVIII Rule 4 ordinarily the evidence of witnesses in attendance shall be taken orally when it comes to adducing evidence in the suit and that Order XIX Rule 1 is intended as a sort of exception to the provisions contained in Order XVIII Rule 4. The above observation though given in the context of the Code as it stood prior to amending acts 46 of 1999 and 22 of 2002 continues to be relevant.
10. Ext.P11 being an application under Order XIX Rule 2 the question whether the attendance of the petitioner should be enforced for the purpose of cross-examination was a question to be decided by the court exercising its judicial discretion. Any cross-examination under Order XIX Rule 2 necessarily has to be with reference to an affidavit submitted by the defendant. It would appear from Ext.P15 that the learned Subordinate Judge has ordered attendance of the petitioner for cross-examination in connection with Ext.P13 application. Interestingly the petitioner has not filed any counter affidavit in Ext.P13 though he has been filing counter affidavits by himself all along. In Ext.P13 he has filed only a verified statement of objections. I therefore enquired ofSmt. Karthika as to which precisely was the affidavit on the basis of which the petitioner is going to be cross-examined. She would answer that the attendance of the petitioner is sought for facilitating cross-examination with reference to the petitioner's affidavit in support of Ext.P7 application filed under Order XIII Rule 2. Intelligent though the answer was, it is difficult to accept the same since there is much in Ext.P11 to indicate that the respondent has filed Ext.P11 for the purpose of Ext.P13 application and for the purpose of the suit. Ext.P11 is filed only as a fresh interlocutory application in the suit and not as an application in any pending interlocutory proceeding. The last paragraph of the affidavit in Ext.P11 is as follows:
Defendant has wilfully fabricated the said document with the deliberate intention of using the same as false evidence before this Court. The fabrication is evident at the face of the document and the defendant deserves to be summoned for cross examination and prosecuted for the offence committed. Separate petitions are filed herewith for the purpose.
Significantly Exts.P11 and P13 are filed simultaneously.
11. As for Ext.P7 the only relevant averment in the affidavit of the petitioner is the following:
Anyhow, a xerox copy of the said Hindrance Register given to the defendant by the concerned official of the concerned section of the plaintiff and preserved by the defendant is produced herewith. The plaintiff also could verify and at least submit definitely as to what has happened to the material document like Hindrance Register and as to whether it is a case of being lost once and for all or it is a case of misplacing.
The earlier paragraphs in the affidavit only raise allegations about the irresponsible conduct of the plaint in not keeping a crucial document like hindrance register under safe custody and regarding the evasive manner in which the plaintiff answers the defendant's request for production of the original. To Ext.P7 the plaintiff has filed Ext.P8 objections wherein it is contended that the defendant is to be directed to produce the Hindrance Register if the same is in his possession and further directed how he obtained the photo copy of the missing register. It is also stated that the plaintiff bona fide suspects fabrication of false evidence with the object of protracting the case further.
12. The averments in Ext.P11 will clearly indicate that cross- examination of the defendant was sought for in connection with Ext.P13 prosecution petition and also by way of evidence in the suit. The learned Subordinate Judge's order which is passed on the basis of the submissions addressed during the hearing of Ext.P11 will show that cross-examination is sought very much for establishing whether the petitioner is guilty of offences under Sections 192, 193 and 196 I.P.C. and also for deciding the issues raised in the suit correctly. As for the suit, since the defendant has not chosen to prove the defendant's version by filing any affidavit and what he has done is to give oral evidence through his power of attorney holder who has already been cross-examined, the request of the respondent to direct attendance of the defendant for cross-examination for the purpose of the suit cannot be granted. Moreover as already noticed it is the power under Order XIX Rule 2 alone which was invoked and even before this Court the plaintiff did not have a different version. The question of invocation of power under Order XIX Rule 2 for compelling the attendance of the petitioner for cross-examination in connection with the accusations contained in Ext.P13 also does not arise since the petitioner has not filed any counter affidavit against Ext.P13.
13. However in deference to the submissions of the learned Senior Counsel and in view of the obvious position that everybody concerned including the learned Subordinate Judge understoodthe request of the respondent as one for cross-examination for the purpose of Ext.P13 petition it is necessary to advert to the law relating to the guarantee against testimonial compulsion as it emerges from the various judgments of the Supreme Court cited at the Bar. The Constitution Bench of the Supreme Court in State of Bombay v. Kathi Kalu (supra) reiterated that the guarantee against the testimonial compulsion given under Article 20(3) is a guarantee given only to persons who are accused of an offence. Their Lordships stated that though the expression 'to be a witness' in its ordinary grammatical sense means giving oral testimony in court, the case law has gone beyond this strict literal interpretation of the expression which may now bear a wider meaning, namely, bearing testimony in court or out of court by a person accused of an offence, orally or in writing and the Supreme Court ultimately concludes that to bring the statement in question within the prohibition of Article 20(3), the person must have stood in the character of an accused person at the time when he made the statement. It is not enough that the person may become an accused at any time after the statement is made. In Augusthi v. Official Liquidator (supra) also their Lordships reiterated that accusation of any offence is an essential condition precedent for the application of Article 20(3) and this essential condition is lacking in cases covered by Section 45G of the Banking Companies Act even though in enquiries under the above section, persons are being compelled to be witnesses against themselves.
14. The main object of Article 20(3) is to give protection to an accused person not to be compelled to incriminate himself and this is in consonance with the basic principles of criminal law accepted in this country that an accused person is entitled to rely on the presumption of innocence in his favour and cannot be compelled to swear against himself. Coming to this case it is true that in the affidavit in support of Ext.P13 the respondent alleges or accuses the petitioner having committed offences under Sections 192, 193 and 196 I.P.C. but that does not mean that the petitioner is already an accused person entitled to the protection guaranteed by Article 20(3). The result of the enquiry to be conducted by the court on Ext.P13 may be that the court may ultimately direct filing of an F.I.R. before criminal court arraying the petitioner as an accused. But till such an event happens, the petitioner will not be an accused entitled to the protection guaranteed under Article 20(3).
15. It will be useful in this context to refer to the judgment of the Supreme Court in Delhi Judicial Service Association, Tiz Hazari Court v. State of Gujarat : 1991CriLJ3086 . The Supreme Court observed in that judgment that contempt proceedings is sui generis and it has peculiar features which are not found in criminal proceedings. In that case the alleged contemners were police officials who were involved in arrest, assault and wrongful detention of the Chief Judicial Magistrate. Even criminal cases had been registered against them. Nevertheless, when they claimed privilege against testimonial compulsion under Article 20(3) of the Constitution when called upon to give evidence before a commission appointed by the Supreme Court for enquiring into the incident, the Supreme Court held that there was no element of compulsion attracting Article 20(3) in the matter of enquiry before the commission. The Supreme Court went on to hold that merely because the Supreme Court has already issued notice regarding contempt proceedings to the police officials, they will not acquire the status of accused for the purposes of Article 20(3). The Supreme Court noticed the distinction between the mode of trial of criminal cases by Magistrates or Judges governed by the Cr.P.C. and the enquiries which are contemplated in proceedings for contempt and held that as far as contempt proceedings are concerned, what is envisaged is a summary process without any fixed procedure and the court is free to evolve its own procedure consistent with fair play and natural justice.
16. The scope of the privilege which can be claimed by witnesses against testimonial compulsion was considered by the Supreme Court in a recent decision in Nayini Narasimha Reddy v. Dr. K. Laxman : AIR2006SC2050 . P.K. Balasubramanyan,J. would approve the views of Phipson in his celebrated work on evidence and rule as follows:
The privilege against self-incrimination is to be claimed by the witness. The right becomes available only after the witness has taken the stand and a question that offends the privilege is put to him. A prospective witness or some other person (as in the present case) cannot raise such an issue in anticipation of an apprehended breach of privilege against self- incrimination.
17. The above discussions will show that the argument of the learned senior counsel that Ext.P7 violates the petitioner's constitutional privilege against the testimonial compulsion cannot be accepted for at least two reasons. Firstly the petitioner is yet to attain the status of an accused for the purpose of Article 20(3) and secondly the privilege is something to be claimed by the petitioner after he mounts the witness box and he confronted with incriminating questions.
18. I shall now consider whether Ext.P15 is sustainable to any extent whatsoever. The directions and observations in the impugned order indicating that the evidence of the witness in cross-examination will be relied on for deciding the suit and also for deciding whether the petitioner is guilty of offences under Sections 192, 193 and 196 I.P.C. are clearly unsustainable. The petitioner could not have been compelled to attend for cross- examination for the purpose of proving any relevant issue in the suit. He could not have been summoned for any cross-examination in connection with Ext.P13 application. I have already found that it will be difficult to accept the submission of Smt.Karthika that Ext.P11 was only for cross-examining the petitioner in connection with Ext.P7. Yet I am now proceeding to consider whether the decision of the learned Subordinate Judge compelling the attendance of the petitioner for cross-examination by the respondent can be sustained to the extent it relates to the affidavit in support of Ext.P7.
19. Ext.P7 is the interlocutory application by which the petitioner wants the court to grant him relief of accepting Ext.B23 as a substitute for the original document, i.e., as evidence. He wants the court to rely on the affidavit sworn to by him for granting the relief. The affidavit filed in support of Ext.P7 is certainly an affidavit governed by Order XIX Rule 2. The respondent who is the counter petitioner in Ext.P7 had reasons to request the court to order the attendance of the petitioner, the deponent for cross-examination. Counsel on both sides assured me that the court has not so far passed any final orders on Ext.P7. The Hindrance Register was attempted to be put in evidence through D.W.1, the power of attorney holder of the petitioner. Marking of the document was objected to by the respondent. The court marked the document as Ext.B23 after recording the objection raised by the respondent. In other words, the document in question has not been admitted as evidence in the suit. It has just been marked in evidence. Whether it should be accepted as evidence is a question which will decide on the decision which will court takes upon Ext.P7. To that extent notwithstanding the marking of the document as Ext.B23, Ext.P7 survives. The only question is whether in just and lawful exercise of the discretion under Order XIX Rule 2 the court would have directed attendance of the petitioner for cross-examination. I have no difficulty in answering the above question in the positive. Ext.B23, according to the petitioner is a crucial document. He is not the natural custodian of the original of Ext.B23. He is to explain how he came to have Ext.B23. The question whether Ext.B23 is a true photo copy of the original is also important. Thus in my opinion the learned Subordinate Judge could have directed his attendance for cross- examination by the respondent with reference to the affidavit in support of Ext.P7. The questions to be asked in cross-examination will have to be confined to the essential averments in Ext.P7 and not to the averments in the respondent's affidavit in support of Ext.P13. After cross-examination is completed, if they so desire, parties can be given an opportunity to adduce further evidence in the matter of Ext.P7 and thereafter only the court will take a decision as to whether Ext.B23 already marked in evidence subject to objections should be accepted as evidence in the suit, i.e. as a substitute for the original of the Hindrance Register.
20. The result of the above discussion is that the Writ Petition will stand disposed of issuing the following directions: Ext.P15 to the extent it purports to permit cross-examination of the petitioner in connection with Ext.P13 is declared bad. The directions seen given under Ext.P15 regarding the specific questions to be asked by the cross-examiner are deleted. The cross- examination pursuant to Ext.P15 shall be confined to the affidavit filed by the petitioner in support of Ext.P7. The cross-examiner will have the liberty of asking any question relevant for deciding Ext.P7 and founded on the affidavit in support of Ext.P7. If any question asked during the cross-examination is objected to by the deponent on the ground of violation of guarantee against the testimonial compulsion under Article 20(3) or under any other principle of law, ruling will be given by the court taking into account the principles enumerated in the forgoing paragraphs.
The petitioner will be present in person for cross-examination in the court below on the posting date which comes first after a copy of this judgment is produced before the court below. The adverse inference to be drawn in the event of the petitioner not being present for cross-examination will be confined to the question of genuineness or otherwise of Ext.B23. Whether or not the petitioner presents himself for cross-examination pursuant to Ext.P15 as clarified by this judgment, the court below will pass an order on Ext.P7 and the acceptability of Ext.B23 as evidence will be subject to that order. The order on Ext.P7 will be passed before final arguments in the suit are heard.
In the circumstances the parties will bear their costs.