IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 7.1.2008. CORAM THE HON'BLE MR.JUSTICE M.JEYAPAUL Crl.R.C.No.1449 of 2007 and M.P.No.1 of 2007 Nakkheerangopal Petitioner vs. Kovai Thangam Respondent Criminal Revision Case filed under sections 397 and 401 Cr.P.C. to set aside the order passed by the learned Judicial Magistrate VII, Coimbatore on 10.9.2007 in Crl.M.P.No.7853 of 2007 in C.C.No.200 of 2004 and to consequently direct the learned Judicial Magistrate VII, Coimbatore to issue summons to all the witnesses cited in the list of defence witnesses submitted by the petitioner/accused in Crl.M.P.No.7853 of 2007 and also for any additional defence witnesses if prayed for in future by the petitioner/accused. For petitioner : Mr.P.T.Perumal For respondent : Mr.V.Gopinath, Senior Counsel for Mr.L. Mahendran ORDER The revision is directed against the order passed by the learned Judicial Magistrate VII, Coimbatore rejecting the plea of the petitioner who is the first accused in C.C.No.200 of 2004 to examine five co-accused as witnesses on his side. Of course, the learned Judicial Magistrate VII, Coimbatore was pleased to permit the petitioner to examine the sole independent witness cited in the list of witnesses placed before the court. 2. The petitioner is the first accused in a case launched against him for offences under sections 500, 501 and 502 of the Indian Penal Code. After questioning the accused under section 313 of the Code of Criminal Procedure, the learned Judicial Magistrate VII, Coimbatore offered an opportunity to the accused to lead evidence on their side. At that stage, the first accused, who is the petitioner herein, filed a list of witnesses to be examined as https://hcservices.ecourts.gov.in/hcservices/ defence witnesses. The learned Judicial Magistrate was pleased to reject the plea of the accused to examine the witnesses shown in the list produced. 3. A revision in Crl.R.P.No.160 of 2000 was preferred by the first accused before the Court of Sessions. The said Criminal Revision Petition was taken on file by the District Judge, Fast Track Court III, Coimbatore who dismissed the said revision petition on 19.12.2005. The first accused invoked the provision of section 482 of the Code of Criminal Procedure by filing Crl.O.P.No.5412 of 2006 before this court. This court was pleased to dismiss the said petition as withdrawn giving liberty to the learned counsel for petitioner to take appropriate action in accordance with law. 4. Thereafter, the petitioner herein filed Crl.O.P.No.7853 of 2007 under sections 254 and 311 of the Code of Criminal Procedure seeking permission for the petitioner to examine as many as six witnesses on his side as defence witnesses. 5. By the impugned order, the learned Judicial Magistrate VII, Coimbatore directed the petitioner to examine the only independent witness cited by the petitioner as defence witness. But, the learned Judicial Magistrate was pleased to reject the plea of the petitioner to examine the other five accused viz., A3 to A7 in this case on his side as defence witnesses. 6. The learned Judicial Magistrate was pleased to dismiss the plea of the petitioner to examine the co-accused on the main ground that request in writing should have emanated from the accused concerned for subjecting himself as one of the defence witnesses. As no such written request emanated from any of those accused, the learned Judicial Magistrate has come to the conclusion that the petitioner is not entitled to examine the co-accused as defence witnesses. So saying, the learned Judicial Magistrate rejected the plea of the petitioner to examine A3 to A7 on his side. 7. The only point that arises for consideration is whether an accused in a case can examine a co-accused without a request in writing emanated from him and whether the court which took cognizance of the list of witnesses submitted by an accused can ascertain from the co-accused as to whether he is prepared to give evidence as a witness on the side of the co-accused. 8. Learned counsel appearing for the petitioner, referring to Article 20(3) of the Constitution of India, would submit that the embargo found in Article 20(3) would apply only in a case where an accused was compelled to be a witness against himself. Here is a case where an accused has desired to examine the co-accused as defence witnesses. Therefore, the bar under Article 20(3) of the https://hcservices.ecourts.gov.in/hcservices/ Constitution of India does not apply to the plea of the petitioner to examine the co-accused as defence witnesses to disprove the charges levelled against him. The learned counsel for the petitioner, referring to section 315 of the Code of Criminal Procedure, would contend that the scope of section 315(1)(a) of the Code of Criminal Procedure will have to be expanded to accommodate the plea of an accused to examine a co-accused as defence witness after ascertaining the willingness of the co-accused cited as a witness. It is his further submission that the learned Judicial Magistrate, in the interest of justice, having gone through the list of witnesses, should have ascertained the willingness or otherwise of the co-accused who were cited as witnesses to defend the petitioner herein. He would lastly submit that though section 315 (1)(a) of the Code of Criminal Procedure mandates that before ever an accused is examined as a defence witness, a request in writing should emanate from him, considering the fact that accused 3 to 7 are the persons who passed on the information for publication to the first accused herein, the scope of section 315(1)(a) of the Code of Criminal Procedure may be expanded to accommodate the plea of the petitioner, as otherwise, the petitioner will lose an opportunity to disprove the charges levelled against him. 9. Learned Senior Counsel appearing for the second respondent/complainant, supporting the decision of the learned Judicial Magistrate, would contend that inasmuch as there is a clear bar to examine a co-accused as a competent witness even on the side of the defence without any request in writing from him, the court has no power to expand the mandatory provision adumbrated under section 315(1)(a) of the Code of Criminal Procedure. He would further submit that the court has no authority to ascertain a co- accused as to whether he was willing to be cited as a defence witness inasmuch as the provision under section 315(1)(a) of the Code of Criminal Procedure is crystal clear that such a request in writing should emanate from the accused himself. It is his submission that the Trial Court has rightly dismissed the application seeking permission to examine the co-accused in this case as defence witnesses. 10. As rightly pointed out by the learned counsel for the petitioner, Article 20(3) of the Constitution of India imposes a restriction to examine an accused by the prosecution to prove the charges against him. Here in this case, the first accused, who is the petitioner has cited A3 to A7 as witnesses to disprove the charges levelled against him. Therefore, this is not a case where an accused is compelled to give evidence as against himself. 11. The court will have to see whether the petitioner being one of the accused in this case can canvass for examination of the other accused on his side to disprove the charges levelled against https://hcservices.ecourts.gov.in/hcservices/ him. As per section 315(1)(a) of the Code of Criminal Procedure, an accused can give evidence on oath in disproof of the charges made not only against him but also against the other accused in the same trial. But, the proviso found therein would read that such an accused shall not be called as a witness except on his own request in writing. The aforesaid proviso to section 315 makes it abundantly clear that before ever an accused comes to the box to disprove a charge before the court, he should have made a request in writing to the court. Such a safeguard has been made under section 315 of the Code of Criminal Procedure to save the accused from the embarrassment of facing any incriminating question put to him. Further, no accused can be compelled to give evidence to disprove the charges made either against him or against the co-accused in the trial. It is not the duty of the Trial Court to ascertain the willingness or otherwise of the accused to enter into the box for deposing in favour of the co-accused especially when the proviso under section 315 is quite clear that the accused himself should come out with a request in writing to subject himself for examination. It is out of the scope of the trial court to ascertain the view of the accused concerned as to his willingness to depose before the court. If at all, the co-accused cited by the petitioner herein are willing to depose on behalf of the petitioner herein, it is left to them to come out with a petition in writing seeking permission of the court to examine them as witnesses in this case. 12. It is made clear that the petitioner herein cannot make such a request to the Trial Court in the absence of any request in writing from the co-accused to examine them on his side. There is no illegality in the order passed by the Trial Court declining to accede to the request of the petitioner to examine the co-accused on his side. The Trial Court has rightly rejected the plea of the petitioner, taking inspiration from the mandatory provision under section 315 of the Code of Criminal Procedure, to examine the co- accused as witnesses on the side of the petitioner. There is no warrant for interference with the impugned order passed by the Trial Court. The petition, therefore, stands dismissed. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. ssk. https://hcservices.ecourts.gov.in/hcservices/ To 1. Judicial Magistrate VII, Coimbatore. 2. Do Thro The Chief Judicial Magistrate Coimbatore 1 cc to Mr.P.T. Perumal, Advocate, sR. 1835 1 cc to Mr.L. Mahendran, Advocate, Sr. 1339 Crl.R.C.No.1449/2007 MA (CO) kk 21/1 https://hcservices.ecourts.gov.in/hcservices/