Madras High Court
M.Saravanan vs S.Murugesan on 4 September, 2017
Author: R.Suresh Kumar
Bench: R.Suresh Kumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 04.09.2017
Coram
THE HON'BLE MR.JUSTICE R.SURESH KUMAR
Crl.R.C.No.970 of 2017
and Crl.M.P.No.9100 of 2017
M.Saravanan ...Petitioner
Vs.
S.Murugesan ...Respondent
Criminal Revision Petition has been filed under Section 397 r/w 401 Crl.P.C., praying to set a side the order dated 28.06.2017 made in C.M.P.No.1566 of 2017 in S.T.C.No.114 of 2016 on the file of the learned Judicial Magistrate (Fast Track Court) Thiruchengode.
For Petitioner : Ms.R.Shase
for M.Guruprasad
For Respondent : Mr.N.Manokaran
O R D E R
This revision case has been filed against the order dated 28.06.2017 passed by the learned Judicial Magistrate, Fast Track Court, Thiruchengode in Crl.M.P.No.1566 of 2017 in S.T.C.No.114 of 2016.
2. The petitioner is the accused in the said S.T.C.No.114 of 2016 before the trial Court. He had filed a petition under Section 254(2) of the Criminal Procedure Code (herein after referred as Code) seeking permission of the Court to examine two witnesses on his behalf. The said petition filed by the petitioner/accused was rejected by the trial Court by order dated 18.05.2016. Reason for the rejection of the said petition was that without even cross-examining P.W.1, who is the petitioner/ complainant, deposed before the trial Court and without giving any reason as to why the complainant's Bank Manager has to be examined, such petition cannot be entertained.
3. Thereafter, in fact, P.W.1 was cross-examined by the petitioner and such cross-examination was completed on 19.06.2017. After the completion of cross-examination of P.W.1, the petitioner has filed the present petition under Section 254(2) of the Code, even without mentioning the provision of the Code, seeking permission of the trial Court to examine the witness namely one Sideswari, who is the sister of the accused. This petition filed to examine the said Sideswari has been rejected by the present impugned order dated 28.06.2017, against which the present revision has been filed.
4. I have heard Ms.R.Shase, learned counsel appearing for the petitioner as well as Mr.N.Manokaran, learned counsel appearing for the respondent.
5. Ms.R.Shase, learned counsel appearing for the petitioner would submit that, in the earlier rejection order, dated 18.05.2016, the trial Court had rejected the petition through which the petitioner sought for permission to examine the witnesses namely, the Bank Manager of the complainant's bank as well as the sister of the accused Sideswari. The reasons given by the trial Court at that time was that, even before cross-examining P.W.1, the petition was filed. More over, no reason has been specifically given for examining the complainant's Bank Manager and if at all, the petitioner wanted to examine these witnesses that would have been stated immediately after the questioning under Section 313 of the Code. By stating these reasons, earlier petition was rejected.
6. The learned counsel appearing for the petitioner further states that, now on the very same day of cross-examination of P.W.1 was completed i.e, on 19.06.2017, this petition was filed. More over, this time the petitioner was confined only to seek permission to examine the sister of the petitioner/accused namely Sideswari and not the Bank Manager of the complainant's bank. That being so, the trial Court has rejected the present petition of the petitioner, on the ground that, for the same relief the petitioner had already filed a petition, which was rejected, and thereafter without any change in circumstances, the present petition was filed.
7. In support of the case of the petitioner, the learned counsel appearing for the petitioner would rely upon the judgment of this Court reported in 2014(2)MWN (Cr.) DCC 61 (Mad.) in Crl.R.C.(MD) No.165 of 2013 in the matter of N.Hentry Vs. P.Natarajan, wherein the petition under Section 254(2) of Code was rejected and as against which, the revision was filed. When dealing with the said case, the learned Judge, after having given the reasons and the power of the Court under Section 254(2) of the Code, has ultimately allowed that revision. In this regard, the learned counsel appearing for the petitioner would rely upon the following portion of the said order:
13.The right of the Accused to have his witnesses examined or to have documents produced on his side cannot be denied. The general rule is that an opportunity should be conferred to the Accused to adduce his evidence. But he cannot have unfetted principle to prolong the proceedings by adopting delaying tactics. It is always open to the Magistrate to put a stop to it. But in a case where the burden is on the Accused, as in this case, the attempt of the Accused to establish his defence by Defence Witnesses cannot be thwarted. Even in a case where the evidence is strong in the prosecution the Accused is entitled to rebut it by examining his own Witnesses or producing documents which would furnish good material for rebutting the Prosecution case. In such a situation that could be preferred by the Accused only if he is allowed to adduce defence evidence.
14.The Magistrate cannot take an attitude that the evidence so far adduced by the prosecution or the Complaint is strong enough to sustain conviction and no purpose would be served by the examination of the Defence Witnesses or production of documents. It is useful in this context to refer to the decision of the Hon'ble Supreme Court rendered in the case in Ronald Vs. State of West Bengal, AIR 1954 SC 455, in Paragraph No.10 it has been held thus :
Although the evidence on record may tend to establish a strong case against the Accused, he is entitled to rebut and if certain documents would furnish good material for rebutting that case, the Court, by declining to issue process for the examination of the Witnesses connected with those documents, would deprive the Accused of an opportunity of rebutting it. The Accused cannot be convicted without an opportunity being given to him to present his evidence and if it is denied to him, there is no fair trial and conviction cannot stand. It is essential that rules of procedure designed to ensure justice should be scrupulously followed, and Courts should be jealous in seeing that there is no breach of them
15.In the present case, the Accused, in order to rebut the case of the Complainant and also to establish his defence, requires to examine the Witnesses cited by him and he has also assigned reasons for their examination as Witnesses before the Court which in my view appears to be reasonable and acceptable.
16.In view of the law laid down by the Hon'ble Supreme Court cited supra, I am of the view that the petition filed by the Petitioner/Accused to examine the Witnesses on his side cannot be dismissed and an opportunity should be given to the Accused to rebut the evidence of the Complainant.
17.In the result, the Revision is allowed and the Order of the learned Judicial Magistrate No.1, Kuzhithurai dated 23.01.2013 in C.C.No.149 of 2005 is set aside. The Revision Petitioner is permitted to adduce Defence Witnesses and examination of those Witnesses shall be completed within a period of three months from the date of receipt of copy of this Order.
8. Per contra, Mr.N.Manoharan, learned counsel appearing for the respondent would state that an earlier rejection order under Section 254(2) of the Code, made in the petition filed by the petitioner, was not only for the reason that it was filed before the cross-examination of P.W.1 but it was also for the reason that the petitioner did not raise the issue at the time of questioning under Section 313 of the Code. The learned counsel for the respondent would also submit that, even in the present petition, it consists of only three lines and nothing has been stated about the reason as to why the petition has been filed to examine the said witness and also under which provision the said petition has been filed.
9. The learned counsel for the respondent would further submit that even the order passed under Section 254(2) i.e., second time, is not reversible by invoking the provisions of 397 r/w 401 of the Code, by this Court. If at all the petitioner has got any grievances, over the impugned order, the remedy is not by filing a revision under the aforesaid provision before this Court. In this regard and in order to establish the said anology, the learned counsel for the respondent would rely upon the Hon'ble Apex Court Judgment reported in (2009) (5)SCC 153 in Crl.A.Nos.486-87 of 2009 in the matter of Sethuraman Vs. Rajamanickam. In the said case, paragraph 5 of the Judgment is read as follows :-
5.Secondly, what was not realised was that the orders passed by the trial Court refusing to call the documents and rejecting the application under Section 311 Cr.P.C., were interlocutory orders and as such, the revision against those orders was clearly barred under Section 397(2) Cr.P.C. The trial Court, in its common order, had clearly mentioned that the cheque was admittedly signed by the respondent-accused and the only defence that was raised, was that his signed cheques were lost and that the appellant complainant had falsely used one such cheque. The trial Court also recorded a finding that the documents were not necessary. This order did not, in any manner, decide anything finally. Therefore, both the orders i.e., one on the application under Section 91 Cr.P.C. for production of documents and other on the application under Section 311 Cr.P.C. for recalling the witness, were the orders of interlocutory nature, in which case, under Section 397(2), revision was clearly not maintainable. Under such circumstances, the learned Judge could not have interfered in his revisional jurisdiction. The impugned judgment is clearly incorrect in law and would have to be set aside. It is accordingly set aside. The appeals are allowed.
10. By citing the said decision, the learned counsel for the respondent would submit that even under Section 311 of Cr.P.C., since, the order passed has been considered as interlocutory order, against which no revision lies, in view of the provision under Section 397 of the Code, where the purpose is to re-call the witnesses. Herein, the prayer sought for in the present petition is only to summon the witnesses if the said proposition of law laid down is applied, it is also to be considered only as interlocutory order and by thus, the revisional jurisdiction of this Court under Section 397 is denuded or restricted in view of the provision of Section 397(2) of the Code.
11. More over the learned counsel for the respondent would also submit that earlier order rejecting the earlier petition of the petitioner under Section 254(2) of the Code, since having become final, whether the same relief can once again be asked for, by making the present petition i.e, without mentioning the provision of the petition. Therefore, in that context also, the present revision case cannot be entertained and that, it is liable to be dismissed, the learned counsel for the respondent argued.
12. I have considered the said submission made by the learned counsel on both sides and the materials placed before this Court. In order to better under standing of the case situation, it may be ascertained that under what circumstances the earlier petition was filed. When the said petition was rejected, the learned Judge of the trial Court has given the following reasons which are re-produced hereunder for better appreciation of the fact :-
tHf;F nfhg;g[f;fis ftdkhf Muha;e;jjpy; tHf;fhdJ vjphp jug;g[ rhl;rpaj;jpw;fhf itf;fg;gl;oUe;j epiyapy; ,e;j kDthdJ vjphp jug;gpy; t';fp nkyhsiua[k; vjphpapd; j';ifiaa[k; rhl;rpahf tprhhpf;f mDkjp nfhhp jhf;fy; bra;ag;gl;Ls;sJ/ g[fhh;jhuh; th.rh.1 Mf tprhhpf;fg;gl;Ls;shh;. Mdhy; vjphp jug;gpy; FWf;Ftprhuiz bra;ag;glhjjhy; \lg;gl;Ls;sJ. ,Jtiuapy; th.rh.1I vjphpahy; FWf;Ftprhuiz bra;ag;gltpy;iy. th.rh.1I FWf;Ftprhuiz bra;ahky; vjphp jug;gpy; rhl;rpia Kd;epWj;JtJ rw;Wk; Vw;fj;jf;fjy;y. Vbdd;why; kDtpy; Twpa[s;s r';fjpfis Fwpj;J th.rh.1 vd;d brhy;fpwhh; vd FWf;Ftprhuiz bra;j gpd;g[ vjphp jug;g[ rhl;rpaj;ij tprhhpj;jhy; jhd; mJ epahakhd eilKiwahf ,Uf;f Koa[k;. vjw;fhf t';fp nkyhsiu tprhhpf;fg;gLfpwhh; vd kDjhuh; kDtpy; Twtpy;iy. vjph; kDjhuh; TWtJnghy; kDtpy; Twpa[s;s r';fjpfs; Fwpj;J tHf;F tprhuizf;F Kd;dpl;l tpdhtpd;nghnjh/ FtpKr gphpt[ 313(1)(M)d; fPHhd tpdhtpd;nghnjh kDjhuh; Twtpy;iy/ ,jpypUe;J tHf;fpid fhyk; flj;jnt ,e;j kD vd ,e;ePjpkd;wk; Kot[ bra;fpwJ.
13. From the above paragraph of the Judgment of the trial Court which rejects the earlier petition filed under Section 254(2) of the Code, it can be found that three reasons were given by the learned Judge.
(1) Without cross examining P.W.1, the examination of the witnesses on the part of the accused cannot be accepted. The reason being, unless it comes to know that as to what would P.W.1/complainant state about the avernments made in the complaint by way of cross-examination, then only it can be an acceptable process of examination of accused side witnesses.
(2) No reasons have been given by the petitioner for examining the Complainant's Bank Manager (3) The petitioner since has not stated anything at the time of questioning of accused under Section 313(1)(a) of the Code, now the petitioner/accused cannot seek permission to examine his witness. By giving these three reasons, earlier petition was rejected.
14. After the said rejection, actually, the cross examination of P.W.1 was completed only on 19.06.2017. In the cross-examination, the following statement has been given by P.W.1 which is extracted hereunder for better appreciation :-
rhl;rpaplk; gthdp rhh;gjpthsiu mYtyfj;jhy; rhd;W mspf;fg;gl;l 18.09.2014 njjpa Mtz vz;/ 6680y; 6k; jhspy; cs;s bgz;zpd; g[ifg;glj;ij fhl;o ,th; ahh; vd;W bjhpa[kh vd;W vjphp jug;gpy; tpdh vGg;gg;gLfpwJ. rhl;rp g[ifg;glj;jpy; cs;sth; jdf;F bjhpa[k; mth; bgah; rpj;nj!;thp vd TWfpwhh;. me;j g[ifg;glk; v.rh.M.1-Mf Fwpaplr; bra;ag;gLfpwJ. nkw;go rpj;nj!;thpia vg;go bjhpa[k; vd nfl;lhy; ,g;nghjpypUe;J Rkhh; 5 tUlk; Kd;g[ nkw;go rpj;nj!;thpaplkpUe;J ehd; xU fhypkidia fpuak; th';fpa tpjj;jpy; bjhpa[k;. Mdhy; ,d;W tiu nkw;go rpj;nj!;thp vjphpapd; j';if vdf;F bjhpahJ. rpj;nj!;tup Vw;fdnt flid jpUg;gp brYj;jKoahj nghdjpdhy; rpj;nj!;tupapd; brhj;ij ehd; fpuak; bgw;why; vd;why; jtW. ehd; tl;of;F fld; bfhLg;gJk; mth;fs; jpUg;gp brYj;jhgl;rj;jpy; fld; bgw;wth;fspd; brhj;ij fpuak; vdf;F gHf;fk; vd;why; mJ jtW. vjphpf;Fk; ,e;j tHf;fpw;Fk; rk;ge;jk; ,y;iy vd;why; rhpjhd;.
15. Only after receiving the answer from P.W.1 through cross-examination that the said Sideswari, sister of the accused, is also a known person to the complainant and according to the petitioner, there are some transactions between the sister of him i.e, the said Sideswari and the complainant and based on that transactions, the cheque, which is in question, would have been misused. Therefore, in order to bring this rebut against presumption, the petitioner immediately, i.e., on the very same day of completion of cross-examination of P.W.1, has filed the present petition under Section 254(2) of the Code. Though the provision of the Code has not been mentioned in the petition, it was not disputed that the said petition was filed under the said provision, because in the impugned order itself, the trial Court has proceeded with the said petition as the one filed under Section 254(2) of Code and that is the reason why, the trial Court has given a reason in single line for the said rejection of the petition that the petition has been filed for the same reason and was dismissed and there was no change in circumstances.
16. Insofar the earlier rejection order is concerned, three reasons were given. Sofaras the reason with regard to the examination of Bank Manager is concerned, no more rejection can been made, since the petitioner did not seek permission to examine the Bank Manager in the present petition. Insofar as reasons 1 and 3 are concerned, in the first reason, in the earlier order, the trial Court has stated that without cross-examining P.W.1, this petition was filed and if at all P.W.1 was cross-examined and based on which the petition can be acceptable. Even this first reason given in the earlier rejection order is not applicable in the present petition since P.W.1 was cross-examined by the petitioner/accused.
17. The third reason given in the said order is that the petitioner did not state anything about the summoning of the witnesses at the time of 313 questioning. More over in the present impugned order, the learned judge merely stated that without any change in circumstances, for the very same reason the present petition has been filed. In this regard, it may be re-collected that at the time of the earlier petition, P.W.1 was not cross-examined and that was also stated as prime reason for the rejection of the earlier petition. Now immediately on cross-examination of P.W.1, the present petition has been filed and P.W.1 has also accepted that he knows the sister of the accused, who is going to be examined as a witness, on the part of the petitioner/accused. Even factually the only reason stated by the learned Judge is that there is no change in circumstances, is absolutely unjustifiable, as there is a change in circumstances in view of the cross-examination of P.W.1. Therefore, factually the reason given for rejection of the present petition, by the impugned order, in the view of this Court, is unjustifiable and untenable.
18. Insofar as the argument advanced by the learned counsel for the respondent that the order passed, which is impugned herein, is not a revisable order, under Section 397 r/w 401 of Code is concerned, it is the right of both parties i.e., prosecution as well as the accused that, the petition can be filed seeking permission/direction from the Magistrate concerned to issue summon to witness or produce any documents. If the order passed under Section 254(2) of the Code, either rejecting or accepting the petition, filed under the said provision, is a final order, then it cannot be presumed to be an interlocutory order. Hence the contention that revision cannot be laid under Section 397 r/w 401 of the Code, is not acceptable.
19. If the principle laid down by the Hon'ble Apex Court in (2009) (5)SCC 153 referred to supra, as quoted by the learned counsel for the respondent, is applied to the present case, certainly, the said principle would be in the aid of the petitioner as it is not an interlocutory order instead the impugned order is a final order. As far as the provision under Section 254(2) of the Code, there is absolutely no quarrel over the same, as, if there is an interlocutory order, revision would not lie before this Court under Section 397 r/w 401 of Code. Since the said situation is not available in the case, the said case would have no application in the facts and circumstances of the present case.
20. More over in the said judgment citied by the learned counsel for the petitioner i.e., 2014(2)MWN (Cr.) DCC 61 (Mad.), citied supra, the learned Judge of this Court has observed about the power of the trial Court under Section 254(2) of the Code and for better appreciation, the said portion of the judgment extracted here under :-
9. In case tried summarily by the Magistrate as per Section 262 of Code of Criminal Procedure the procedure specified in Code of Criminal Procedure for the trial of the Summon cases shall be followed. In a case tried as a Summons case if the Magistrate does not convict the Accused under Section 252, 253, Cr.P.C., he has to hear the Accused and take all such evidence as may be produced in support of the prosecution. He has also to hear the Accused and take all evidence as he produces in his defence.
10. Section 254(2), Cr.P.C. provides that the Magistrate may, if he thinks fit, on the Application on the prosecution or the Accused, issue a summons to any Witness directing him to attend or to produce any documents or other thing. The discretion is certainly vested with the Magistrate to consider whether Witnesses cited by the Accused should all be examined. In a case, where the Magistrate finds that the Witness Schedule has been filed with the sole purpose of delaying the proceedings or that no meaningful purpose would be served by the examination of the Witnesses, it is open to him to decline the request for summoning the Witness.
11. The power under Section 254(2), Cr.P.C. conferred on the Magistrate is of wider amplitude than that of the Sessions Judge or Magistrate in a similar situation while trying a sessions case or a warrant case. Section 233(3), Cr.P.C. relates to a situation where the Accused in a sessions case wants to adduce defence evidence or to produce any document or thing. Sub-Section (3) enables the Judge to issue process. Of course it is with a rider. The Sessions Judge can refuse to issue process if he finds that the Witness List is filed for the purpose of vexation or delay or defeating the ends of justice. Under Sections 233(2) & 243(2), the power of the Sessions Judge and Magistrate to refuse issuance of process is circumscribed by the three facts mentioned specifically viz., vexation, delay or defeating the ends of justice. Thus, in cases not coming under any of the above categories, Session Judge or the Magistrate in a trial of warrant cases will have to issue process to the Defence Witnesses.
12. So far as Section 254(2), is concerned there is no such limitation. Thus, it can be seen from a reading of Sections 233(2), 243(2) and 254(2), that the Magistrate's discretion as to allowing or refusing an Application either by the prosecution or by the Accused for issuing Summons to any Witness directing him to attend or to produce any document before the Court is wider so far as trial of Summary cases are concerned. But that does not mean that the Magistrate can act arbitrarily, whimsically or capriciously. I has to be considered on the facts and circumstances of each case. It may not be possible to enumerate in what circumstances the Magistrate can issue process for examining Defence Witnesses and in what circumstances he should not do it. The situation in any cases particularly bearing in mind the onus of proof. In other words, the Court should not scuttle the defence evidence on flimsy grounds. If the Magistrate finds that the Witnesses cited have nothing relevant to testify before the Court or if he finds that the Witnesses are merely cited with ulterior motive to dodge the proceedings, he can refuse to act.
21. As has been rightly pointed out by the learned Judge, the power of the Magistrate under Section 254(2) of the Code is of wider amplitude than that of the Sessions Judge, and while exercising the said power either accepting or rejecting the petition for summoning any witnesses, the Magistrate concerned must give reasons as to why, he accepts the petition or rejects the same, as the case may be. If these parameters are applied in the impugned order, it can be easily stated that the learned Magistrate has not given any reasons for rejecting the said plea of the petitioner. Even the one line reason given in the short order is not a correct reason. The finding given by the learned Judge at the time of the rejection of petition is that, there is no change in circumstance, and therefore the said reason given in the present impugned order is not acceptable. Therefore, this Court is of the view that the impugned order is unsustainable. Hence it is liable to be set aside and accordingly it is set aside.
22. In the result, the criminal revision case is allowed. Consequently, connected miscellaneous petition is closed.
04.09.2017 Speaking/non-speaking order Index : Yes/No rts To The Presiding Officer, The Judicial Magistrate, (Fast Track Court) Thiruchengode R.SURESH KUMAR, J.
rts Crl.R.C.No.970 of 2017 and Crl.M.P.No.9100 of 2017 04.09.2017