1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL WRIT PETITION NO. 47 OF 2008 Advocate Aires Rodrigues r/o T1-B 30 Ribandar Retreat Ribandar – 403 006-Goa. ... Petitioner versus 1. Shri Vishwajeet Rane r/o Kamat Kinara, Bldg. No.25, 3rd Floor, Near Science Center, Off Miramar Road, Panaji, Goa 403 004. 2. State by the Public Prosecutor. ... Respondents Mr. A. F. Diniz, Advocate for the Petitioner. Mr. S. G. Bhobe, Advocate for Respondent No.1. Ms. Winnie Coutinho, Public Prosecutor for Respondent No.2. CORAM : N. A. BRITTO, J. DATE : 23RD SEPTEMBER, 2008. ORAL ORDER This Criminal Writ Petition is directed against Order dated 9-7-2008 by which the learned J.M.F.C. has declined to summon two witnesses one of 2 whom is Smt. Divya Rane, and the other Shri Karpe, Police Inspector who is investigating the case filed against the accused. Since then, the said Investigating Officer was allowed to be examined by Order dated 25-8-2008. 2. Some facts are required to be stated to dispose of this Criminal Writ Petition. The Petitioner/Complainant filed a first information report against the accused in respect of an incident which took place on 31-7-2007 at 8.15 a.m. and Crime No.130/2007 under Section 506(ii) I.P.C. has been registered against the accused. This first information report was filed only against the accused and not against the wife of the accused, and, it has been stated by Ms. Winnie Coutinho, learned Public Prosecutor that investigations into the said Crime No.130/07 are still pending and a charge-sheet will be filed in due course of time. It appears from the complaint that on 7-8-2007 the Complainant had requested to register the F.I.R. against the said Mrs. Divya Rane but the crime has been registered only against the accused. 3. The Complainant then filed the complaint against the accused as well as his wife the said Smt. Divya Rane, and, as can be seen from the copy of the Order dated 24-9-2007 the learned Magistrate after perusing the statement on oath of the Complainant under Section 200 Cr.P.C. as well as the report submitted by Shri Karpe, Police Inspector in charge of Old Goa Police Station, and, 3 other material issued process against both the accused under Section 506(ii) r/w 34 I.P.C. 4. However, the learned Sessions Judge by Order dated 14-12-2007 was pleased to set aside the order issuing process against accused no.2, the said wife of the accused. 5. As the case is warrant triable, the deposition of the Complainant came to be recorded from 14-1-2008 onwards, and, an application for summoning the said Smt. Divya Rane and the said Shri Karpe came to be filed on 25-4-2008. The allegation of the Complainant is that on 31-7-2007 at about 8.15 a.m. the Complainant received a call on the Complainant's mobile and the mobile from which the call was made belongs to the wife of the accused which it is stated has a call barring facility. After the application dated 25-4-2008 was filed, the accused has also filed an application dated 7-7-2008 stating that the said mobile bearing No.9881476791 is in the name of his wife, Smt. Divya Rane, and although the said mobile/cellular phone was in the name of Smt. Divya Rane, the same was in possession of the accused on the date of the alleged incident. The accused has admitted the said two facts in the said application. 6. The learned trial Court observed that there were absolutely no averments either in the complaint or in the application under consideration as regards Smt. Divya Rane witnessing the alleged incident and considering that the 4 accused has admitted the said two facts, which could have been deposed to by the said Smt. Divya Rane, he was of the view that the said Smt.Divya Rane was not a material witness to the case. The learned trial Court also observed that the Complainant is required to come with a specific case before the Court and the Court cannot summon a witness to conduct a roving inquiry whether the witness was present at the time of the alleged offence. This finding was in answer to the Complainant's contention that Smt. Divya Rane was required to be examined to find out if the conversation was made in her presence. 7. As already stated, the Complainant had accused Smt. Divya Rane with aid of Section 34 I.P.C. for committing an offence under Section 506(ii) I.P.C, and the process issued against her has now been set aside. The question therefore is whether a Complainant after having failed to make a person as an accused, would be entitled to call such a person as his witness against the other accused? 8. Mr. A. F. Diniz, learned Counsel on behalf of the Complainant, firstly submits that the accused has no right to object to the application since the application is only for summoning of a witness. Learned Counsel further submits that there is no bar in the Code (Code of Criminal Procedure, 1973) for summoning such a person as a witness, who was earlier made as an accused. Mr. Diniz submits that the presence of the said Smt. Divya Rane would be required before the Court to find out whether the call made by the accused was 5 made in her presence, and if so, what the accused conveyed to the Complainant through the said phone call. Mr. Diniz also submits that it would also be required to find out why the said mobile of Smt. Divya Rane had a call barring facility. In support of his contention that there is no such prohibition for a person to be made an accused and then to be called as a witness learned Counsel Mr. Diniz has placed reliance on the case of State of Maharashtra v. Balasaheb @ Ramesh Laxman Deshmukh(2002(Cri.Supp.) Bom.C.R. 220). 9. On the other hand, Mr. S. G. Bhobe, learned Counsel on behalf of Respondent No.1/Accused has submitted that the first information report filed by the Complainant was only against the present accused. He further submits that after Smt. Divya Rane was discharged as an accused, the accused has taken a particular stand in cross-examination and bringing the said Smt. Divya Rane as a witness is now bound to prejudice the accused. Mr. Bhobe further submits that in case the said Smt. Divya Rane had continued to be an accused at the stage of Section 244 of the Code then certainly the Complainant would not have been able to examine her as a witness. He further submits that the Complainant having chosen to prosecute the said Smt. Divya Rane as an accused, subsequent change of her role as a witness is bound to prejudice the accused. Learned Counsel further submits that once the Complainant exercises the option available to the Complainant to make her as an accused the natural corollary of that would be that the Complainant cannot be allowed to make her a witness now after he failed to make her an accused. Learned Counsel has placed reliance on the 6 case of Laxmipat Choraria and others v. State of Maharashtra(AIR 1968 SC 938). 10. The decisions cited on behalf of the parties, by their respective Counsel, in my view, do not at all throw any light on the controversy involved in this petition. In the case of Laxmipat Choraria and others v. State of Maharashtra(supra) it is an accomplice who was examined as a witness and in that context the Apex Court observed that the testimony of such a witness would be required to be received after usual corroboration. It is in that context that the Apex Court observed that the prosecuting agency has to be neutral unless it seeks to prosecute the witness himself and if they do not prosecute a particular witness and tender him as a witness, the bar of the Indian Oaths Act ceases because a person is not an accused person in criminal proceedings. 11. In the case of State of Maharashtra v. Balasaheb @ Ramesh Laxman Deshmukh(supra) a complaint and a first information report filed by one Charudatta Nanabhau Pawar had given rise to a state case (No.97/96) and a private case(No.3/98). In the state case there were four accused who were charged under Sections 325, 323, 504, 506 r/w 34 I.P.C. and in the private case in addition to the aforesaid four accused there were in all ten accused and Balasaheb @ Ramesh was impleaded as accused no.6. He had sought protection from being examined in the state case as a witness.. It was noted by the Court that the story in the private complaint was not identical with the story put up by the prosecution in 7 the state case and the role attributed to the said Balasaheb @ Ramesh was also different in both cases, though both the cases were based on the same incident which had taken place on the midnight of 26th/27th April, 1996. Both the cases were ordered to be tried separately but disposed of simultaneously without losing the identity of each case, as per the law stated in Harjinder Singh v. State of Punjab(AIR 1985 SC 404). 12. By application dated 31-3-2000 filed in the state case the said Balasaheb @ Ramesh had sought directions to the prosecution not to examine him as a witness by exercising testimonial compulsion on him. The trial Court held that the said Balasaheb was entitled to the protection of Article 20(3) of the Constitution and therefore directed not to examine him as a witness in the said case. In revision, this Court held that the impugned Order granting protection to Balasaheb against entry into the witness box at that stage was premature and he was not entitled to protection under Article 20(3) because he was still not an accused in the state case and also because by deposing as a witness in the state case, ordinarily he would not be giving evidence against himself. It was further held that even if he was compelled to depose as a witness in the state case that could not be said to be compulsion to give evidence against himself and moreover by the proviso to Section 132 of the Indian Evidence Act he would be protected from use of self incriminating statements against him in any other proceedings including the said private case No.3/98. The blanket protection granted to the said Balasaheb @ Ramesh was therefore set aside. 8 13. In the case at hand, one thing is sure and certain and that is the Complainant wished to prosecute both the accused and his wife in Crime No.130/2007 and did prosecute both of them in this complaint case. The complaint against the wife came to be dismissed by the order of the learned Sessions Judge and because Smt. Divya Rane is not an accused at present that the Complainant sought to summon her as his witness. I am unable to accept the submission of Mr. Diniz that the accused has no right to oppose the application. The accused has every right to oppose an application filed on behalf of the Complainant to summon any witness. Whether such a witness is to be summoned or not it is for the Court to decide. It is also true that there is no specific bar in the Code which prohibits a person being examined as a witness who was prosecuted earlier as an accused. There is no enabling provision either. The Code is silent. It may be noted that the Code was not meant to provide for each and every contingency which might have arisen in future and the legislature certainly could not have provided for all such contingencies. The primary object of a criminal trial is to ensure a fair trial and, a fair trial has naturally two objects in view: it must be fair to the accused and it must be fair to the prosecution and the fairness has to be judged from that dual point of view. There is no doubt that it is for the prosecution to decide as to which of the persons will be arrayed as accused and others who would be cited as witness. Needless to repeat, this is a right of the prosecution and not of the accused. The entire case of the Complainant can be summarised as follows: “I failed in prosecuting you as an accused, so now you be my witness”. In my view, the Complainant is not entitled for such option. Once a 9 choice is made and a person is prosecuted as an accused and if such a person succeeds in obtaining a discharge, in my view, such a person cannot be subsequently summoned as a witness since such a course would be opposed to the very basic tenets of criminal law which we follow in our adversarial system of justice, as such a procedure would come in the way of the very concept of a fair trial. 14. In view of the above, I find there is no merit in this petition and therefore the same is hereby dismissed. 15. Before parting, I am sure that the learned Counsel on behalf of both parties will take note of the statement made by the learned Public Prosecutor and recorded herein above. N. A. BRITTO, J. RD