Madras High Court
Tmt. Vijayalakshmi Viswanathan ... vs S. Soundara Pandian And M. Periyasamy on 17 June, 2003
ORDER A. Packiaraj, J.
1. This revision has been filed against the orders passed in Crl.M.P. No. 1913 of 2003 in C.C. No. 760 of 2000, by Judicial Magistrate No. V, Madurai, declining to dispense with the presence of the witnesses in the above calendar case cited by the complainant to be examined in the said case. The said witnesses are the petitioners in this revision, who apparently do not want to appear in Court as witnesses.
2. The question that arises for consideration, as argued by the learned counsel appearing for the petitioners is that whether the witnesses have a right to get themselves dispensed with by not featuring as witnesses on the ground of official confidence.
3. The counsel appearing for the petitioners argued that the complainant has cited the petitioners herein as witnesses in the above said calendar case, which relates to defamatory matter against the accused who have sent defamatory letters to the petitioners herein and that they do not want to appear in Court and give evidence. According to the learned counsel, the witnesses have every right to abstain themselves from the proceedings and hence had filed a petition to dispense with their presence as witnesses. However, the learned Magistrate has dismissed the said petition mainly on the ground that what they are likely to depose does not come under the category of official confidence.
4. The counsel appearing for the petitioners further argued as stated earlier that they had every right to get themselves dispensed with. In order to substantiate the said contention, reliance was placed on Section 200(A) of Cr.P.C, which goes to say that the Magistrate while taking the complaint on oath, need not examine the complainant and the witnesses, if the complaint is made in writing and if he is a public servant acting or purporting to act in the discharge of his official duties.
5. In effect, the contention of the learned counsel is that that the first petitioner namely Vijayalakshmi, working as a Financial Commissioner and Ex Officio Secretary in the Ministry of Railways and Stephen Raj, namely the second petitioner working as a Senior District Signal and Tele-communication Engineer, Madras, have acted in their official duties as public servants and thereby they need not to be examined.
6. On consideration of the above said provision, I am afraid that the same does not apply to the witnesses to be examined during the trial for the purpose of appreciating the evidence. Section 200(A), in my opinion, is the provision under which the Magistrate takes cognizance of a complaint and this provision only enables the Magistrate to take cognizance without examining the complainant or the witnesses on oath. In short, Section 200(A) applies only at the cognizance stage. But as far as the stage of adducing evidence is concerned, to establish the guilt or otherwise of the accused it is mandatory on the part of the prosecution to examine the witnesses to disclose the offence. That apart in a case of defamation, the evidence relating to publication is absolutely necessary and hence the complainant has cited the petitioners herein as witnesses to whom letters have been written by the accused, which are totally unwarranted.
7. The next point that arises for consideration is that when the complainant has cited the above said witnesses, can the witnesses decline from appearing before the Court in spite of summons being received?
8. A conspectus of the relevant provisions of The Criminal Procedure code, The Evidence Act and The Criminal Rules of Practice, would only go to show that the witnesses have no right to abstain themselves from appearing in Court and giving evidence. However, they are at liberty to depose or give evidence on their conscience and oath.
9. In support of the above, it would be appropriate to refer to Section 132 of the Evidence Act, which states that a witness shall not be excused from answering any question as to any matter relevant to the matter in issue in any suit or in any civil or criminal proceeding, upon the ground that the answer to such question will incriminate him.
10. In furtherance to the above, Section 147 of the Evidence Act contemplates that the witness shall be compelled to answer the questions to the matter relevant to the suit or proceedings and Section 148 gives the power to the Court to decide about the relevancy of the questions.
11. In addition to the above said provisions, the Schedule to the Code of Criminal Procedure prescribes the mode of summoning the witnesses by way of Form-33 of Schedule 2 of Cr.P.C and in spite of summons received by the witness, he does not turn up, witness warrant will be issued. The words in the summons reads as follows:
WHEREAS complaint has been made before me that (name of the accused) of (address) has (or is suspected to have) committed the offence of (State the offence concisely with time and place), and it appears to me that you are likely to give material evidence or to produce any document or other thing for the prosecution;
You are hereby summoned to appear before this Court on the day of next at ten o' clock in the forenoon, to produce such document or thing or to testify with you know concerning the matter of the said complaint and not to depart thence without leave of the Court; and you are hereby warned that, if you shall without just excuse neglect or refuse to appear on the said date, a warrant will be issued to compel your attendance.
The language in the summons makes it abundantly clear that the witness has to necessarily obey the summons. Even thereafter in spite of the same, if the witness does not turn up, or conceals himself to avoid the service of the said warrant, proclamation requiring the attendance of the witnesses by way of Form-5 can be issued by the Magistrate. The Magistrate shall also in addition to the above, issue order of attachment, to compel the attendance of the witness under Form No. 6.
12. From the above, it is therefore, made clear that the witnesses shall be bound to obey the summons issued by the Court and they do not have a right to get themselves dispensed with. It is the prerogative right of the Courts to decide whether the examination of witnesses is essential or not and in this case since the complainant has cited the petitioners herein as witnesses to be examined and as rightly the Court felt it just and proper to examine the said witnesses in order to establish the case of the prosecution, the witnesses have no other alternative than to appear in Court and give evidence according to their conscience. Therefore, I do not find any irregularity or illegality in the said order passed by the court below.
13. Therefore, for the foregoing reasons, I do not find that the petitioners have a right to get themselves dispensed with their presence as prosecution witnesses in C.C. No. 760 of 2000, pending on the file of the Judicial Magistrate No. V, Madurai.
In the result, the revision fails and the same is accordingly dismissed. consequently, Crl.M.P.No. 4384 of 2003 is closed.