Co-Accused Can’t Be Examined As Prosecution Witness Unless Made An Approver By Grant Of Pardon: Kerala High Court

[30 August 2021]

The Kerala High Court held that a person arraigned as an accused can only be examined as a witness against the other accused in a trial relating to the same offence when the witness has been made an approver after granting pardon under Sections 306 or 307 of the Code of Criminal Procedure. A Division Bench of Justices Vinod Chandran and Ziyad Rahman observed that it is only under Section 315 that an accused could be examined as a witness for the defence in the trial and disprove the charges against him. In that situation, the protection under Article 20(3) does not apply; since the accused voluntarily mounts the box as a witness and there is no element of compulsion. However, it was also noted that Section 315 CrPC does not apply in the instant case as the disputed witness is not on trial and has already been convicted. Anticipating that allowing to examine the accused-convict as a witness might deprive him of the protection available to them because of a threat or enticement neither contemplated in the Cr. P.C nor envisaged in the scheme of criminal trials, the Court noted, “Law has provided a measure to the prosecution to meet a contingency where the assistance of one or more of the accused is necessitated for ensuring a successful prosecution, and that is the procedure contemplated under section 306 and 307 of Cr.P.C. Accordingly, they are not expected to adopt any other method than contemplated therein for achieving the said object.”