IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 31.10.2008 CORAM: THE HONOURABLE MR.JUSTICE K. MOHAN RAM Crl.O.P.No.25293 of 2008 and M.P.Nos. 1 and 2 of 2008 1. Baburaj 2. Dayavathy .. Petitioners/Accused Versus State by, The Inspector of Police, W22, All Women Police Station, Mylapore, Chennai - 4. .. Respondent/Complainant Petition filed under Section 482 Cr.P.C to set aside the order dated 05.08.2008 made in Crl.M.P.No.6142 of 2008 in C.C.No.1042 of 2007 on the file of the 18th Metropolitan Magistrate, Saidapet, Chennai, by allowing this petition. For Petitioners : Mr.A.Ramesh, Senior Counsel for M/s.V.N.S.Law Firms For Respondent : Mr. Hasan Mohamed Jinnah Government Advocate (Crl. Side) For Intervener : Mr. S.S.Kumar O R D E R The petitioners are accused in C.C.No.1042 of 2007 on the file of the 18th Metropolitan Magistrate, Saidapet, Chennai and facing trial for the alleged offences under Sections 498(A) and 406 IPC filed Crl.M.P.No.6142 of 2008. At the time of questioning under Section 313 of Cr.P.C, a list of defence witnesses have been submitted by the petitioners, but the same was objected by the prosecution stating that the names mentioned in the list were no way connected with the case and no reason has been mentioned. Learned Magistrate, after hearing both sides, rejected the list of witnesses submitted by the petitioners by order dated 05.08.2008. Being aggrieved by that https://hcservices.ecourts.gov.in/hcservices/ the above Criminal Original Petition has been filed by the accused. 2. Mr.A.Ramesh, learned Senior Counsel appearing on behalf of the petitioners submitted that the examination of the defence witnesses is a right of the accused and the same cannot be prevented by the prosecution and at the time of submitting list of witnesses it is not necessary to furnish the reasons for examining the witnesses. Learned Senior Counsel submitted that the learned Magistrate has made the following observation while rejecting the list of witnesses submitted by the petitioners namely " To determined the above defence ought to have state the correct and brief reason for calling witness. However, in this case, the defence side without stating any accepted/brief reasons listed more persons as witness that too many of them are Senior Police Officials. The contention of the prosecution regarding the then A.P.P also found to be acceptable." Learned Senior Counsel submitted that the aforesaid reasoning of the trial Court is against the well settled principles of law laid down in a catena of decisions by the Hon'ble Apex Court and this Court. He relied on the decision of the Apex Court reported in "(2000) 3 Supreme Court Cases 328 (Arivazhagan ..vs.. State). In the said decision in paragraph 13, the Apex Court has held as under:- "13. The position of an accused who is involved in a trial under the PC Act is more cumbered than an accused in other cases due to legislative curbs. One of them is envisaged in Section 22 of the PC Act. The court is not obliged to direct an accused involved under the PC Act to enter upon his defence until the Special Court has the occasion to see the list of his witnesses and also the list of his documents to be adduced in evidence on the defence side. An accused in other cases has to be called upon to enter on his defence irrespective of whether he would propose to adduce defence evidence because it is a choice to be exercised by him only after he is called upon to enter on his defence. But the accused under the PC Act need be called upon to enter on his defence only after the trial Judge has occasion to peruse the names of the witnesses as well as the purpose of examination of each one of them, and also the nature of the documents which he proposed to adduce as his evidence." https://hcservices.ecourts.gov.in/hcservices/ He also relied upon a decision of the Apex Court reported in (2008) 5 Supreme Court Cases 633 (T.Nagappa ..vs.. Y.R. Muralidhar) wherein the Apex Court in paragraph No.9 has held as under: "9. What should be the nature of evidence is not a matter which should be left only to the discretion of the Court. It is the accused who knows how to prove his defence. It is true that the Court being the master of the proceedings must determine as to whether the application filed by the accused in terms of sub-section (2) of Section 243 of the Code is bona fide or not or whether thereby the intends to bring on record a relevant material. But ordinarily an accused should be allowed to approach the Court for obtaining its assistance with regard to summoning of witnesses, etc. If permitted to do so, steps therefor, however, must be taken within a limited time. There cannot be any doubt whatsoever that the accused should not be allowed to unnecessarily protract the trial or summon witnesses whose evidence would not be at all relevant." Learned Senior Counsel further relied upon the decision of the Apex Court reported in 2007(2) Supreme Court Cases 258 (Kalyani Baskar ..vs.. M.S.Sampoornam). In this decision, in paragraph 12, the Apex Court has made the following observation:- "12. ...... The appellant cannot be convicted without an opportunity being given to her to present her evidence and if it is denied to her, there is no fair trial. "Fair trial" includes fair and proper opportunities allowed by law to prove her innocence. Adducing evidence in support of the defence is a valuable right. Denial of that right means denial of fair trial. It is essential that rules of procedure designed to ensure justice should be scrupulously followed, and the courts should be jealous in seeing that there is no breach of them. We have not been able to appreciate the view of the learned Judge of the High Court that the petitioner has filed application under Section 243 Cr.P.C without naming any person as witness or anything to be summoned, which are to be sent for handwriting expert for examination." https://hcservices.ecourts.gov.in/hcservices/ 3. Countering the said submissions, Mr.S.S.Kumar, learned counsel appearing for the intervener/defacto complainant submitted that earlier the petitioners filed Crl.O.P.No.20212 of 2008 seeking the very same relief; but for the reasons best known to the petitioners, they withdrew the said Criminal Original Petition and thereafter have filed the above Criminal Original Petition on the very same grounds and hence the above Criminal Original Petition is not maintainable. Regarding the legal submissions made by the learned Senior Counsel, the learned counsel for the intervener has no quarrel. The learned counsel after making his lengthy submissions fairly submitted that if this Court is inclined to allow the above Criminal Original Petition, a time limit may be fixed for the disposal of C.C.No.1042 of 2007 and he also invited the attention of this Court to the order of this Court dated 30.09.2008 passed in Crl.O.P.No.24247 of 2008, wherein this Court has directed the learned Magistrate to complete the trial within a period of two months from the date of the receipt of the copy of that order. 4. On the aforesaid submissions Mr.Hasan Mohamed Jinnah, learned Government Advocate (Crl. Side) was also heard. 5. I have carefully considered the said submissions made by the learned counsel on either side. 6. At the outset it is to be pointed out that the order passed by the learned Magistrate is contrary to the legal principles laid down in the decision referred to above by the Apex Court. The Apex Court in the decision reported in "(2000) 3 Supreme Court Cases 328" cited supra has pointed out the distinction between the cases arising under the Prevention of Corruption Act and other cases and the right of the accused involved in such cases regarding the right to examine the defence witnesses and the Apex Court has pointed out that an accused in other cases has to be called upon to enter on his defence irrespective of whether he would propose to adduce defence evidence because it is a choice to be exercised by him only after he is called upon to enter on his defence. In the decision reported in 2007(2) Supreme Court Cases 258, cited supra, the Apex Court has held that if an accused is convicted without an opportunity being given to him to present his evidence and if it is denied to him, there is no fair trial. "Fair trial" includes fair and proper opportunities allowed by law to prove his innocence. Adducing evidence in support of the defence is a valuable right. Denial of that right means denial of fair trial. It is further observed that it is essential that rules of procedure designed to ensure justice should be scrupulously followed, and the courts should be jealous in seeing that there https://hcservices.ecourts.gov.in/hcservices/ is no breach of them. As laid down in (2008) 5 Supreme Court Cases 633 cited supra, what should be the nature of evidence is not a matter which should be left only to the discretion of the Court; it is the accused who knows how to prove his defence. But at the same time, the Court can consider the question whether the application under Section 243(2) of the Code has been filed with a bona fide intention or whether the same has been filed to bring on record a relevant material. The Apex Court has also cautioned that the accused should not be allowed to unnecessarily protract the trial or summon witnesses, whose evidence would not be at all relevant. In the light of the above said legal principles laid down by the Apex Court, if the facts of the case on hand are considered it could be seen that the order passed by the learned Magistrate cannot be sustained. 7. In the list of witnesses filed by the petitioners, they have sought to examine one Mr.Jeyarathina Kumar, Assistant Public Prosecutor, Saidapet, Chennai. As far as this witness is concerned, the contention of the learned Senior Counsel is that PW.7, the Investigating Officer, in her cross examination had deposed that only after obtaining legal opinion from Mr.Jeyarathina Kumar, Assistant Public Prosecutor, Saidapet, Chennai, the charge sheet was filed. In respect of the obtaining of such legal opinion from the Assistant Public Prosecutor, PW.7 has been cross examined at length and PW.7 had stated that the legal opinion was obtained only after the orders from his superior officials. PW.7 has also been questioned regarding the time and date on which the legal opinion was obtained. Learned senior counsel submitted that if the Assistant Public Prosecutor is summoned as a witness relevant questions can be put to him and answers elicited in favour of the defence. 8. But this Court is unable to accept the said contention of the learned Senior Counsel. PW.7, the Investigating Officer has fairly deposed in her cross examination that the case was filed after getting legal opinion from the Assistant Public Prosecutor, namely Thiru.Jeyarathina Kumar. His evidence would not at all be relevant and as such no useful purpose will be served by summoning the Assistant Public Prosecutor. It will be a very bad precedent to allow the defence to summon the Assistant Public Prosecutor, who has given legal opinion, as a witness to give evidence on behalf of the accused. Hence, the above submission of the learned Senior Counsel cannot be countenanced and accordingly rejected. 9. As far as the request of the petitioners to summon the Commissioner of Police, Chennai City is concerned, the learned Senior Counsel, on instructions, has fairly submitted that the petitioners are not insisting for summoning him as a witness. https://hcservices.ecourts.gov.in/hcservices/ 10. As far as the other witnesses namely (1) Station House Officer, Assistant Commissioner Office (Police), Mylapore; (2) Station House Officer, W.22, All Women Police Station, Mylapore, Chennai; (3) Assistant Commissioner of Police, Mylapore, Chennai; and (4) Mr. Baskar, S/o. Murugappa Chettiyar are summoned, the contention of the learned Senior Counsel is to be accepted and Mr.S.S.Kumar, learned counsel appearing for the intervener/defacto complainant also fairly submitted that if such witnesses are summoned at an early date and the trial is completed within the specified time, the defacto complainant has no objection for summoning the said witnesses. 11. In the light of the aforesaid submissions made by the learned counsel on either side, the above Criminal Original Petition is partly allowed. In the list of witnesses furnished by the accused, Mr.Jeyarathinakumar, the Assistant Public Prosecutor, Saidapet, Chennai and Chennai City Commissioner of Police, Chennai, need not be summoned and the request in that regard made by the petitioners is rejected. Whereas the prayer of the petitioners in respect of other witnesses are concerned, the order of the learned Magistrate is set aside and the Criminal Original Petition is allowed. 12. Since the case is of the year 2007 and already this Court has given a direction for early disposal of the case, the learned Magistrate is hereby directed to complete the trial within a period of two months from the date of receipt of a copy of this order. The accused/petitioners herein shall take immediate steps to summon the witnesses and extend full co- operation with the trial Court in completing the trial within the time stipulated by this Court. 13. With the above directions, the Criminal Original Petition is partly allowed. Consequently, connected Miscellaneous Petitions are closed. mra Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ To 1. The Inspector of Police, W22, All Women Police Station, Mylapore, Chennai - 4. 2. The 18th Metropolitan Magistrate, Saidapet, Chennai. 3. The Public Prosecutor, High Court, Madras + 2 ccs to M/s. V. N. S. Law Firms, Advocate SR No. 60428 + 1 cc to Mr. S. S. Kumar, Advocate SR No. 60439 Crl.O.P.No.25293 of 2008 and M.P.Nos. 1 and 2 of 2008 SCD(CO) SR/4.11.2008 https://hcservices.ecourts.gov.in/hcservices/