Once the co-accused is convicted, he cannot be called to the stand on behalf of the prosecution: Kerala High Court

The Kerala High Court upheld that there is a clear bar against using the testimony of a person charged with an offence against his co-accused when he loses his status as a person who availed of pardon, where there is a violation of the pardon’s terms through THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN in the case of Abdul Razak @ Abu Ahmed v. Union of India ( CRL.MC NO. 2917 OF 2021)


To advance their shared aim to wage war against Syria and to join the outlawed terrorist organization physically ISIS, the petitioner, a co-accused, and Shajahan (the proposed additional witness), attempted to go to Syria together.

The petitioner and the additional witness were detained by Turkish authorities upon arrival and later sent back to India. After being deported, the Special Cell of the Police in New Delhi apprehended both the petitioner and Shajahan. Later, Shajahan was arrested, and a case was filed against him by the NIA Unit in Delhi, while the petitioner was discharged. When the petitioner arrived in his hometown, he was caught by the State Police, and a crime was registered, which was later taken over by the NIA Cochin Unit, which submitted a charge sheet once the investigation was completed.

The petitioner argued that the additional witness wanted to be examined was a co-accused who was prosecuted and convicted by the NIA Court in New Delhi based on the charge sheet filed by the NIA, New Delhi Unit, on the same transactions and hence could not be a competent witness. The petitioner further argued that the accused in a case could only be interrogated as a witness under Section 315 of the CrPC, which circumstances were not met in the current case.

The ASG, on the other hand, argued that the current petition was unconstitutional because it was an appealable order under Section 21 of the National Investigation Agency Act. On the merits, the ASG maintained that the Special Court made no mistake in permitting the examination of the new witness because it is expressly permitted under Section 311 of the CrPC. The ASG went on to say that even if both cases are based on the same transactions, there is no reason to deny the examination of Shajahan, the proposed additional witness because he is no longer an accused in the case charge-sheeted by the NIA, Delhi Unit, having been convicted by the Special Court in Delhi.


Regarding the maintainability of the current petition, which was a point of contention for the ASG, the Division Bench determined that the specific basis for challenging the Special Court’s order is severe and that there will be grave harm done if a co-accused is called as a witness without first receiving a pardon and without also meeting the requirements of Section 315 of the Criminal Procedure Code.

The Bench determined that the charge sheets submitted by the NIA Kochi Unit and the NIA, Delhi Unit both showed that the transactions that were the subject of both were identical.

According to the High Court, the right of an accused against self-incrimination is a constitutional privilege enshrined in Article 20(3) of the Constitution and one of the fundamental concepts of criminal jurisprudence. Furthermore, there are only two exceptional circumstances in which an accused can be examined as a witness against other persons accused of the same offences: if he has been tendered pardon by following the procedure contemplated by Sections 306 or 307 of the CrPC, or (ii) under the circumstances mentioned in Section 315 of the CrPC.

The Division Bench, therefore, came to the conclusion that the entire trial against the petitioner is akin to a “split-up” trial based on the same charge sheet, where a co-accused is not allowed to be questioned as a witness even if he was tried and found guilty before the current trial. As a result, the High Court granted the current petition and rejected the Special Court for Trial of Offenses of NIA Cases, Ernakulam, order as not legally sustainable.

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