Godrej Soap Ltd. Vs. State - Court Judgment

Bhattacharjee, J.

1. Questions of considerable importance appear to be involved in this revision. The first question is as to whether, when anincorporated company or any other body corporate is accused of any offence, it can invoke the provisions of Article 20(3) of the Constitution mandating that 'no person accused of any offence shall be compelled to be a witness against himself.' And, secondly, even if it can do so, would such protection extend to its directors, officers or employees who are not roped in as accused or co-accused ?

2. In view of Article 367 of the Constitution making the provisions of the General Clauses Act, 1897, applicable for the interpretation of the Constitution and the definition of the word 'person' in Section 3(42) of that Act, a company or other body corporate is to be ordinarily treated as a 'person' for the purpose of the Constitution. There is no room for doubt that the word 'person' in the former Article 31(1) and now in its successor Article 300A, applied and applies to a body corporate, which accordingly cannot be deprived of its property save by the authority of law. Section 305(2) of the Code of Criminal Procedure also dealing with prosecutions against 'corporations' and defining 'corporation' to mean an incorporated company or other body corporate, has used the expression 'where a corporation is the accused person'. But, as is usual with all definitions, and as is expressly provided both in Article 367(1) of the Constitution as well as Section 3 of the General Clauses Act, the definition in Section 3(42) of the Act would apply to make the expression 'person' include a company, provided there is nothing in the subject or context to rule out its application. And we are inclined to hold that, in view of the subject and in the context of a criminal prosecution, a company or other body corporate would not be a 'person' within the meaning of the provisions of Article 20(3). It is not disputed that if that be our view, the rule must be discharged. Here are our reasons.

3. Article 20(3) forbidding any compulsion to make the accused 'a witness against himself' did not have much relevance when these provisions were enacted in 1949, for, under the provisions of the Code of Criminal Procedure, 1898, as it stood then before its amendment in 1955 by insertion of Section 342A, an accused, far from being compelled to be a witness, was not and could not at all be a competent witness, even if he volunteered to become one. But the framers of the Constitution, may be because of their bitter experiences about criminal proceedings during the pre-independence period and in tune with the then prevailing pro-accused criminal jurisprudence, probably wanted to put this matter on the higher pedestal of a fundamental right, so that the same could not be affected by any alteration by ordinary legislation.

4. Be that as it may, can a non-natural, artificial and a juridical person 'be a witness' at all, whether voluntarily or under compulsion, for or against itself or any other person A witness is a person who testifies, who givesevidence. Under our system, as provided now in the Oaths Act, 1969, a witness, before he can give evidence, must make an oath or affirmation, except a child-witness under the age of twelve years who, in the opinion of the court, does not understand the nature of an oath or affirmation. It is obvious that an incorporated company or other corporate bodies cannot make any oath or affirmation and, therefore, cannot become a witness. Article 20(3), on its very terms, can only apply to an accused who, if he so chooses, can become a witness, and since a company or other corporate bodies, being incapable of making or taking any oath or affirmation, cannot become a witness, Article 20(3) must be held not to have contemplated cases where such non-natural persons, having only juristic personality, are accused of any offence.

5. A reference to the relevant provisions of the Evidence Act would also fortify our view. To be a witness is to furnish evidence. 'Evidence' has been defined in Section 3 of the Evidence Act as to mean and include --(a) 'all statements which the court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry and 'such statements are called oral evidence', and (b) 'all documents produced for the inspection of the court' and 'such documents are called documentary evidence'. It is obvious that a body corporate cannot make oral statements. Assuming that such a body corporate, being 'unable to speak', may be branded as a dumb witness for the purpose of Section 119 of the Evidence Act who can give evidence 'by writing', the 'evidence so given', even though in writing, 'shall be deemed to be oral evidence'. Under Section 60, however, 'oral evidence must, in all cases whatever, be direct, that is to say, if it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it, if it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it, and if it refers to a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived it by that sense or in that manner'. We are afraid that whatever juridical personality the law might have conferred on a body corporate, it has not, as it obviously cannot have, invested a body corporate with sense organs to see, hear or perceive a thing. And, therefore, it could never be in the contemplation of law that a body corporate would or could give oral evidence as defined in Section 3 read with Section 60 and Section 119 of the Evidence Act.

6. It may, however, be conceded that a body corporate may nevertheless be summoned to produce documents which would be 'documentary evidence'. But, Section 139 makes it unmistakably clear that any one 'summoned to produce a document does not become a witness by the mere fact that he produces it'. So, even if a body corporate, which is accused in a case, is summoned to produce documents, it would not thereby become a witness and if it could not become a witness, the question of its beingcompelled to be a witness cannot obviously arise. On a consideration of these relevant provisions of the Evidence Act, we are inclined to hold that, in view of the inability on the part of a body corporate to give 'oral evidence' as pointed out hereinabove including evidence in writing, to be deemed as 'oral evidence' in view of Section 119 and thus to be governed by Section 60, and it is not becoming a witness even when summoned to produce a document, a body corporate cannot, even if it so chooses, be a witness in any case and, therefore, the question of its enjoying any protection under Article 20(3), which countermands all compulsion against a person to be a witness against himself, cannot arise.

7. It is true that in M.P. Sharma v. Satish Chandra, : 1978(2)ELT287(SC) an eight-judge unanimous Bench decision of the Supreme Court, the Supreme Court observed (at page 304) that even though Section 139 of the Evidence Act provides that a person summoned to produce a document does not thereby become a witness, 'but that section is meant to regulate the right of cross-examination', but 'it is not a guide to the connotation of the word 'witness', '. If that was the law, we might have had to hold that since a body corporate can be summoned to produce documents, it would become a witness on being so summoned and, therefore, would have been entitled to the protection under Article 20(3) from being compelled to produce such document and that Article 20(3) would have occasion for its application even when a body corporate is the accused. But the majority in a later eleven-judge Bench of the Supreme Court in State of Bombay v. Kathi Kalu Oghad, : 1961CriLJ856 has overturned this view (at page 1815) and it has been ruled that 'it is well-established that Clause (3) of Article 20 is directed against self-incrimination by an accused person' and that 'self-incrimination must mean conveying information based upon the personal knowledge of the person giving the information and cannot include merely the mechanical process of producing documents in court which may throw light on any of the points in controversy, but which do not contain any statement of the accused based on his personal knowledge'. It has been observed further that only the giving of such 'personal testimony' would come within Article 20(3) which must, accordingly, 'depend upon his volition' and must not be the result of any compulsion against him.

8. Now, if a body corporate, like any other person, does not become a 'witness' merely on its being summoned to produce a document, it cannot obviously adduce oral evidence, and even such evidence in writing which is to be treated as 'oral evidence' under Section 119, because of its incapacity to see or hear or perceive by sense, and above all cannot take or make oath or affirmation which is a must for witnesses (other than children), we would like to hold that such body corporate cannot be within the contemplation of the provisions of Article 20(3) which seeks to guarantee to every person the right not to be compelled to be a witness against himself.

9. In M.P. Sharma, : 1978(2)ELT287(SC) , however, some of the petitioners who moved the Supreme Court under Article 32 of the Constitution were no doubt incorporated companies. But the question as to whether such bodies corporate can or do come within the expressions 'person' and 'witness' as used in Article 20(3) to enable them to invoke the protection was not even remotely raised, as would appear from the judgment itself (M.P. Sharma's case, : 1978(2)ELT287(SC) ). The decision, therefore, can be no authority at all on the question before us. If, in that case, the Supreme Court afforded the protection under Article 20(3) to a body corporate also, that was obviously binding on the parties as something res judicata. But what binds and can bind others, not parties to that lis, as a precedent under Article 141 is the declaration on a question of law and if no question was raised on the point and there is no decision or declaration of law on that question, the decision is obviously no authority on that question. We do not think that it can reasonably be contended with any semblance of plausibility that since the Supreme Court allowed Article 20(3) to operate in a case where the accused happened to be bodies corporate without any advertence to the question as to whether bodies corporate can at all invoke that article, it must still logically follow that, according to the Supreme Court, the provisions of Article 20(3) are available to them. And even assuming arguendo that it may so follow, we have the authority of Lord Halsbury in Quinn v. Leatham [1901] AC 495, followed by the Supreme Court in Sudhansu Sekhar Misra, : (1970)ILLJ662SC , that a decision is no authority 'for a proposition that may seem to follow logically from it'

10. The only Indian decision to which our attention has been drawn and which appears to have decided the question is the Division Bench decision of the Bombay High Court in State of Maharashtra v. Nagpur Electric Light and Power Co. Ltd. [1961] 31 Comp Cas 324 where it has been ruled by Tarkunde J., speaking for the Division Bench, that the protection under Article 20(3) is available to an incorporated company. The ratio appears to be (at page 327) that though 'it is true that a company as such cannot give oral evidence in any case, but the expression 'to be a witness' has been interpreted to mean 'to furnish evidence' and a company is certainly capable of furnishing documentary evidence against itself.' As we have already seen, though, under Section 139 of the Evidence Act, a person summoned to produce a document does not thereby become a witness, the Supreme Court in M.P. Sharma, : 1978(2)ELT287(SC) ruled that this section was 'meant to regulate the right of cross-examination 'only and was'' not a guide to the connotation of the word 'witness' in Article 20(3). As already noted, this view in M.P. Sharma, : 1978(2)ELT287(SC) , has been negatived by a larger Bench of the Supreme Court in Kathi Kalu Oghad, : 1961CriLJ856 and, therefore, if we may say so with respect, the ratio in the Bombay decision in Nagpur Electric Light andPower Co. Ltd. (1961) 31 Comp Cas 324 can no longer be accepted to be good law.

11. In respect of the various articles in Part III of the Constitution which deal with fundamental rights, the framers of our Constitution derived inspiration from the American Constitution and the provision corresponding to Article 20(3) is to be found in the fifth amendment of the American Constitution providing, inter alia, that 'no person shall be compelled in any criminal case to be a witness against himself'. And the American law, as noted also in the Supreme Court decision in M.P. Sharma, : 1978(2)ELT287(SC) , and, the Bombay decision in Nagpur Electric Light and Power Co. [1961] 31 Comp Cas 324, is well-settled to the effect that the protection against self-incrimination contained in the fifth amendment of the American Constitution does not extend to corporate bodies. A leading decision on the point appears to be Hale v. Henkel (201 US 43), but it would suffice to refer to a much later decision in United States v. Jasper White (322 US 694), where it has been ruled that 'the Constitutional privilege against self-incrimination is essentially a personal one, applying to natural individuals' and 'since the privilege against self-incrimination is a purely personal one, it cannot be utilised by or on behalf of any organisation, such as a corporation'. This provision of the American fifth amendment is in pari materia with Article 20(3). It may be noted that this very fifth amendment also provides in the next succeeding provision that 'no person shall be deprived of life, liberty or property without due process of law', and though in respect of that provision in the same fifth amendment, the word 'person' has all along been held in the American law to apply to corporate bodies also owning property, in respect of the preceding provision relating to protection against self-incrimination, American courts have held the word 'person' not to apply to corporations. We find no good reason not to accept this view.

12. It is true that one of our eminent judges, later the Chief Justice of this court, Dr. P.B. Mukharji J. warned us as early as in 1951 in Mahadeb Jiew v. B.B. Sen, : AIR1951Cal563 that 'the craze for American precedents can soon become a snare' and that 'a blind and uncritical adherence to American precedents must be avoided or else there will soon be a perverted American Constitution operating in this land under the delusive garb of the Indian Constitution.' There can be no doubt that the craze, if it means, as it does, insane fancy or mania, for anything is obviously bad and a blind and uncritical adherence to anything, foreign or indigenous, must be avoided. But as our ancient sages declared almost at the dawn of human civilisation, noble or good thoughts must be allowed to come from all directions. Be it however noted, that as Mahatma Gandhi put it, while we must allow all the cultures of all the world to be blown around us, we must not allow ourselves to be blown off our feet by any of them. It appears thatmany of our legal scholars regret that our craze for American precedents has led us to transplant a 'due process clause' in our Constitution, even though the proposal for insertion thereof in the body of the Constitution was rejected by our founding fathers in the Constitutent Assembly after a long, detailed and thorough debate.

13. In the case at hand, however, as discussed hereinbefore in some detail, we have come to our own conclusion on a critical interpretation of our own Constitution and our own laws, holding that the expressions 'person' and 'witness' in Article 20(3) do not and cannot contemplate a juridical person like an incorporated company or other corporate bodies. It is settled law in company jurisprudence, since the celebrated decision of the House of Lords in Salomon v. Salomon and Co. [1897] AC 22 (HL), that a company is a distinct legal entity having a juridical personality independent or separate from its members, directors, officers and employees. Even though, as pointed out by us in Chira Kumar Basu v. Property Development Trust Ltd., : AIR1989Cal176 , relying on a rather recent. decision of the Supreme Court in State of U. P. v. Renusagar Power Co., : AIR1988SC1737 and the Tagore Law Lectures 9f Dr. Justice P.B. Mukherji entitled New Jurisprudence (1970, page 183), the doctrine of lifting the corporate veil of a body corporate has now become more permissible than it was before, a company cannot be allowed to put on and put off the veil at its pleasure to suit its purpose and to invite us, not to look at its independent legal entity, but at its directors or officers or even employees and to treat them as inseparably one with the company and entitled to all the privileges and protections available to the body corporate.

14. At any rate, in the case on hand, the two employees of the company who have been sought to be cited as witnesses in the prosecution against the company, cannot be equated with the company as to treat the incriminating evidence, if any, adduced by them, to be self-incriminatory evidence adduced by the accused company itself. In the present day, where multi-faceted and multi-coloured crimes which could not even be conceived of a few decades ago, have endangered our society by spreading their tentacles far and wide and deep, the doctrine against self-incrimination has ceased to enjoy wholesale approbation. As pointed out by the Supreme Court in M.P. Sharma, : 1978(2)ELT287(SC) , itself, opinion has been strongly held in some quarters that this doctrine has an undesirable effect on social interests and that in the detection of crime, the. State is confronted with overwhelming difficulties as a result of this privilege. 'It is said that it has become a hiding place of crime and has outlived its usefulness and that the rights of the accused persons are amply protected without this privilege and that no innocent person is in need of it'. The Supreme Court referred to Wigmore on Evidence, volume VIII, pages 314 and 315, whereit has been observed that even though indirectly and ultimately it works for good--for the good of the innocent accused, 'but directly and concretely it works for ill, for the protection of the guilty and the consequent derangement of civic order. There ought to be an end to the judicial cant towards crime. We have already too much of what a wit has called 'justice tempered with mercy'. There is, therefore, a good reason for the view that the privilege should be kept within the strictest possible limits and to quote from the Supreme Court decision in M.P. Sharma, : 1978(2)ELT287(SC) 'there is no inherent reason to construe the ambit of this fundamental right as comprising a very wide range'. We are afraid that if the officers and employees of a company are not permitted to appear as witnesses for the prosecution against the company on an extension of the doctrine against self-incrimination, many of the offences committed by companies cannot be detected, prosecuted and punished.

15. One word more before we conclude and that is about Section 305 of the Code of Criminal Procedure which provides that when a body corporate is an accused, it may appoint a representative for the purpose of any inquiry or trial and such representative is to be examined under Section 313 of the Code providing for examination of the accused to explain any circumstances appearing against the corporation. We would like to make it clear that we have not decided the question as to whether such an one, while representing the corporation, can be compelled to appear as a witness against the corporation.

16. We would, accordingly, reject the revisional application and discharge the rule. The records to go down at once to the court below to enable it to proceed with the trial with expedition.

Nandi, J.

17. I agree.