LAXMIPAT CHORARIA AND ORS. versus STATE OF MAHARASHTRA

Citation: [1968] 2 S.C.R. 624 · Decided: 14-12-1967 · Supreme Court of India · Bench: M. HIDAYATULLAH · Disposal: Dismissed

Cited by 1 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

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 arraign-
ed. 
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 Pro-
cedure 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 in-
cluded 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 be-
cause 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 
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 
•• 
B 
c 
D 
E 
F 
G 
H 
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, he

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