Kerala High Court
A.K. Muhammed Kunhi vs Muhammed Haji on 13 May, 2010
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN
MONDAY,THE 18TH DAY OF AUGUST 2014/27TH SRAVANA, 1936
OP(Crl.).No. 39 of 2014 (Q)
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CC 701/2011 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, PAYYANNUR
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PETITIONER(S):
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A.K. MUHAMMED KUNHI, AGED 74 YEARS,
S/O K. UMMER, 'ASHIYARA', THANA,
KANNUR DISTRICT (NOW RESIDING AT ARAYALAYAM,
SASTHAMKOTTA, KARUNAGAPPALLY,KOLLAM DISTIRCT 690521.
BY ADVS.SRI.TPM.IBRAHIM KHAN (SR.)
SRI.K.M.ABDUL MAJEED
RESPONDENT(S):
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1. MUHAMMED HAJI,
A.V.M. KARUNA MAHAL, BEACH ROAD, PUTHIYANGADI P.O
MADAYI, KANNUR DISTRICT 670304.
2. RASHID,
S/O PUZHAKAL ABDUL KAREEM, KARUNA MAHAL, BEACH ROAD
PUTHIYANGADI, P.O, MADAYI, KANNUR DISTRICT 670304.
3. A.S SATHEESH KUMAR,
CIRCLE INSPECTOR OF POLICE,
VIGILANCE & ANTI- CORRUPTION BUREAU,
KANNUR (NOW WORKING AT ADOOR
KAZARAGOD DISTRICT 671543).
4. P.O.P.MUHAMMAD ALI,
S/O ABOOBACKER, EX PANCHAYAT PRESIDENT, AMINAS,
PUTHIYANGADI, MADAYI P.O, KANNUR DISTRICT 670304.
5. S.A.P. ABDUL RAHMAN,
S/O ABDULLA, SEERAVALAPPIL VEEDU, PUTHIYANGADI,
MADAYI P.O, KANNUR DISTRICT 670304.
R2 & 5 BY ADV. SRI.M.SASINDRAN
THIS OP (CRIMINAL) HAVING COME UP FOR ADMISSION ON 18-08-2014,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
PJ
OP(Crl.).No. 39 of 2014 (Q)
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APPENDIX
PETITIONER(S)' EXHIBITS
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EXHIBIT P1 A PHOTOSTAT COPY OF THE COMPLAINT AS CC NO 701 OF 2011 FILED
BY THE PETITIONER BEFORE THE COURT OF JUDICIAL FIRST CLASS
MAGISTRATE, PAYYANNUR
EXHIBIT P2 A POTOSTAT COPY OF THE CERTIFIED TRUE COPY OF THE SWORN
STATEMENT OF THE PETITIONER DATED 13-05-2010
EXHIBIT P2(A) ATYPED COPY OF THE SWORN STATEMENT OF THE PETITIONER
DATED 13-05-2010
EXHIBIT P3 A PHOTOSTAT COPY OF THE JUDGMENT OF THIS HONOURABLE
COURT DATED 03-04-2013 IN OP (RL) NO 1002 OF 2013
EXHIBIT P4 A PHOTOSTAT COPY OF THE CERTIFIED COPY OF THE DEPOSITION IN
THE EXAMINATION OF THE PETITIONER IN CHIEF WIRTTEN BY THE
JUDICIAL FIRST CLASS MAGISTRATE, PAYYANNUR BY HER OWN
HANDWRITING IN CC NO 701/2011
EXHIBIT P5 A PHOTOSTAT COPY OF THE DEPOSITION OF THE PETITIONER IN CC
NO 701/2011 ISSUED FROM THE COURT OF THE JUDICIAL
MAGISTRATE OF FIRST CLASS, PAYYANUR
EXHIBIT P6 A PHOTOSTAT COPY OF THE PETITION FILED BY THE PETITIONER ON
04-07-2013 UNDER SECTION 311 OF THE CODE OF CRIMINAL
PROCEDURE BEFORE THE JUDICIAL MAGISTRATE OF THE FIRST
CLASS COURT, PAYYANNUR
EXHIBIT P7 A PHOTOSTAT COPY OF THE COUNTER STATEMENT FILED BY THE
RESPONDENT ON 13-01-2014 IN EXHIBIT P6 PETITIONER
EXHIBIT P8 A PHOTOSTAT COPY OF THE ORDER DATED 02-07-2013 PASSED BY
THE JUDICIAL FIRST CLASS MAGISTRATE, PAYYANNUR IN C.M.P NO
3105/2013
EXHIBIT P9 A PHOTOSTAT COPY OF THE PETITION FILED ON 04-12-2013 FILED BY
THE PETITIONER BEFORE THE JUDICAIL MAGISTRATE OF FIRST
CLASS COURT, PAYYANNUR
EXHIBIT P10 A PHOTOSTAT COPY OF THE ORDER DATED 21-01-2014 PASSED BY
THE JUDICIAL MAGISTRATE OF FIRST CLASS COURT, PAYYANNUR
EXHIBIT P11 A PHOTOSTAT COPY OF THE ENQUIRY REPORT DATED 08-11-2010 OF
MR. M. SHOBHI, SENIOR SUPERINTENDENT OF POLICE,
HEADQUARTERS, THIRUVANANTHAPURAM
EXHIBIT P12 A PHOTOSTAT COPY OF THE DOCKET SHEET ORDER DATED
06-09-2011 OF THE JUDICIAL MAGISTRATE OF FIRST CLASS COURT,
PAYYANNUR IN CC NO 701 OF 2011
RESPONDENT(S)' EXHIBITS
--------------------------------------- NIL.
/ TRUE COPY /
PJ P.S. TO JUDGE
K. RAMAKRISHNAN, J.
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Original Petition (Criminal) No.39 of 2014
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Dated this the 18th day of August, 2014
J U D G M E N T
This criminal miscellaneous case was filed by the petitioner, who is the complainant in C.C.No.701/2011 on the file of Judicial First Class Magistrate Court, Payyannur, challenging the order passed by the court below, dismissing the application for permission to take fresh chief examination under Article 227 of the Constitution of India.
2. It is alleged in the petition that, the petitioner is the complainant in C.C.No.701/2011 on the file of the Judicial First Class Magistrate Court, Payyannur. He filed a private complaint under Section 190(1)(a) of Criminal Procedure Code (hereinafter called 'the Code') against respondents 1 to 5, alleging commission of the offences under Section 365, 503 and 506 read with Section 34 of the Indian Penal Code, as Ext.P1. The case of the complainant in the complaint was that, the petitioner and O.P. (Crl.) 39/2014 2 his brother were intimidated by the accused persons wrongfully confined them from proceeding in a car and compelled them to pay an amount of 1,40,000/-, which they are not liable to pay and the 3rd respondent, Circle Inspector of Police, Thaliparamba, who did not provide adequate police protection, but connived with other accused persons in the transaction. Though complaints were filed before the authorities, since no action has been taken, he was compelled to file Ext.P1 complaint. The sworn statement of the petitioner was taken on 13.05.2010, certified copies of which were produced as Ext.P2 and P2(a) by the then presiding officer in charge of the court. Thereafter, the case was prolonged for some time and in the meantime, the petitioner filed O.P.(Crl.).No.1002/2013 before this court, for speedy disposal and this court by Ext.P3 judgment directed the learned magistrate to complete the enquiry on Ext.P1 complaint within a time frame. On that basis, the then Judicial First Class Magistrate, Payyannur, examined the petitioner in chief and O.P. (Crl.) 39/2014 3 he had given his statement in English as he was not well versed in Malayalam language. After examination, he had signed the deposition. Later when he took the certified copy of the deposition of his chief examination, it was revealed that, the learned magistrate had not recorded the statement of the petitioner correctly and legibly in a readable manner. Certified copy of the deposition so taken is Ext.P4. So he filed an application for readable copy and obtained the same, which is produced as Ext.P5. That also contained the same mistakes. So he has no other remedy, except to file an application under Section 311 of the Code, seeking the permission for re-examination of the petitioner in chief, as Ext.P6 and that petition was dismissed by the learned magistrate by Ext.P8 order without assigning any reason. Thereafter, he filed another petition for the same purpose, but later it was dismissed as not pressed. Thereafter, he filed Ext.P9 petition, stating that, his statement was not properly recorded and the deposition was not readable and so without examining him again, O.P. (Crl.) 39/2014 4 prejudice will be caused to him, to which the respondents filed Ext.P7 counter stating that, once he had given chief examination, he cannot again ask for permission for examining him in chief afresh and he will be getting an opportunity for re-examination and at that time, he can clarify the defects. On that basis, the learned magistrate passed Ext.P10 order. Ext.P11 is the report of the enquiry on the complaint filed by the petitioner against the 3rd respondent, which was given by the then senior superintendent of police, Head Quarters, Thiruvananthapuram. According to the petitioner, after taking sworn statement of the petitioner, the case was taken on file as C.C.No.701/2011 against the accused persons under Section 365, 506(1) of the Indian Penal Code and the sworn statement so recorded is in a legible hand writing. If the court below is not inclined to take the deposition written by the subsequent officer, as chief examination, the sworn statement taken at the time of pre- cognizance stage can be taken as chief examination of the O.P. (Crl.) 39/2014 5 petitioner. So the petitioner has now come before this court, seeking the following reliefs:
i. call for the records relating to Exts.P1 to P12 and to issue a direction or order quashing Ext.P8 and P10 orders rejecting the application under Section 311 of the Code of Criminal Procedure for the re-examination of the petitioner, being unsustainable an miscarriage of justice;
ii. to issue a direction or order directing the Judicial Magistrate of First Class, Payyannur to re- examine the petitioner and record his statement in chief in C.C.No.701 of 2011 invoking the jurisdiction under Section 311 of the Code of Criminal so as to enable the subsequent presiding officers to read the depositions and evaluate the evidence in the light of the same;
iii. to issue any other order or direction to met out justice under the circumstances of the above case.
3. Heard the learned counsel for the petitioner, learned Public Prosecutor and the counsel appearing for the respondent.
4. I have also called for a report from the Judicial First Class Magistrate Court, Payyannur, as to whether the readable copy of the deposition has been taken in this case and the learned magistrate has sent a report, which reads as follows:
"With reference to the above reference I may O.P. (Crl.) 39/2014 6 report that readable certified copy of deposition of PW1 A.K.Muhamed Kunhi in CC 701/11 was taken and issued to counsel for petitioner on 30.10.2013, on his application. But no copy of the same has been taken and kept in the file".
5. The learned senior counsel Shri.T.P.M.Ibrahim Khan, appearing for the petitioner submitted that, the certified copy of the deposition produced before this court will go to show that, it is not legible and not readable and even the office was not in position to give a readable copy of the deposition, which also carries the same mistake. In such circumstances, even if the petitioner wants to proceed with the case, that will cause prejudice to him, as the successor officer who has to deal with the case may not be able to understand the demur of the witnesses and the nature of deposition given by the witness. So it is necessary in the interest of justice to allow him to examine again in chief and the court below was not justified in dismissing the application by stating that, he will get an opportunity to clarify the same in re-examination, as at this stage, there is no question of re-examination arises, O.P. (Crl.) 39/2014 7 as it is in the pre-charge stage, where the chief examination of the witness, if not cross examined will be there without getting an opportunity for re-examination. So he prayed for allowing the application.
6. The learned counsel for the respondent submitted that, at the time, when he signed the deposition, he had not pointed out the mistake and he simply signed the deposition, later he is not entitled to say that, the deposition was not readable and it was not correctly recorded as well.
7. It is an admitted fact that, the petitioner is the complainant in the lower court, who filed a private complaint against the respondents, alleging commission of the offences under Section 365, 503 and 506 read with Section 34 of the Indian Penal Code as Ext.P1. It is also an admitted fact that, after taking sworn statement of the witnesses, which was produced as Ext.P2 and P2(a), the learned magistrate has taken cognizance of the case as C.C.No.701/2011 under Section 365 and 506 of the Indian Penal Code and decided to issue process to the accused. O.P. (Crl.) 39/2014 8 Accordingly, process was issued and the respondents have appeared through counsel as well. After appearance of the accused, the complainant was examined again for pre- charge evidence and the chief examination of the complainant was taken by the successor officer, which is produced as Ext.P4. Ext.P5 is the certified copy of the deposition, which according to the petitioner obtained through court, which is also not readable. So he earlier filed Ext.P7 petition under Section 311 of the Code of Criminal Procedure stating that, some material facts have been omitted to be mentioned and in fact it was not specifically mentioned about the facts that has been omitted for which purpose, he wants to be examined again and the learned magistrate by Ext.P8 order dismissed that application. Thereafter, he again filed another petitioner, but later got it dismissed as not pressed. Thereafter he filed Ext.P9 application stating that, the things spoken to him were not properly recorded by the magistrate, when he was examined as PW1 at the stage of pre-charge stage and O.P. (Crl.) 39/2014 9 he was suffering from some illness and on account of that, he was not able to give evidence legibly and fluently as well. According to him, the deposition was not read over to him and so he has not got an opportunity to correct the said mistake at that time. So he has no other option, except to apply under Section 311 of the Code and the respondent filed ExtP7 counter denying these aspects and further stated that under Section 244 of the Code of Criminal Procedure, complainant has to produce all the evidence at the time when pre-charge examination was done and after framing of charge, he will be cross examined by the accused and he will be getting an opportunity for re-examination. So it is not necessary to allow the petitioner to have a further chief examination. The learned magistrate by Ext.P10 order dismissed the application, stating that, further examination in chief of witnesses already examined is not permissible under law and he will be getting an opportunity to clarify the same during re-examination. With that observation, the learned magistrate dismissed the petition. O.P. (Crl.) 39/2014 10
8. The main question that arises for consideration is the right of a witness, who was examined and signed the deposition to challenge the same at a later stage. Section 278 of the Code of Criminal Procedure deals with recording of witnesses, which reads as follows:
278. Procedure in regard to such evidence when completed.- (a) As the evidence of each witness taken under section 275 or section 276 is completed, it shall be read over to him in the presence of the accused, if in attendance, or of his pleader, if he appears by pleader, and shall, if necessary, be corrected.
(2) If the witness denies the correctness of any part of the evidence when the same is read over tom him, the Magistrate or presiding Judge may, instead of correcting the evidence, make a memorandum thereon of the objection made to it by the witness and shall add such remarks as he thinks necessary.
(3) If the record of the evidence is in a language different from that in which it has been given and the witness does not understand that language, the record shall be interpreted to him in the language in which it was given, or in a language which he understands.
9. Rule 57 of the Criminal Rules of Practice deals with signing of deposition, after recording the deposition of the witnesses in open court, which reads as follows:
57. Signing of depositions - After a deposition has been read over to the witness, the last page thereof O.P. (Crl.) 39/2014 11 shall be signed in full by him. The Judge shall initial every page if the deposition is not recorded in his hand.
A certificate in the following form shall be appended at the foot of the deposition and the Judge shall affix his signature thereto over his name:
"Taken down by me/before me in open court, interpreted/read over to the witness and admitted by him to be correct".
10. It will be seen from the above section and Rule that there is a duty cast on the presiding officer to read over the deposition and if the witness says that, certain portions were not correctly recorded as deposed by him, then at the foot of the deposition it has to be recorded by the learned magistrate in the form of a memorandum and after his remarks, the signature of the witness has to be obtained and then he has to sign the same as mentioned in Rule 57 of the Criminal Rules of Practice and also Section 278 of the Code. This aspect has been considered by this court in the decision reported in 2008(4) KLT 1047 Bhagavat Singh G. v. State of Kerala and reiterated the same position as well. In the same decision the learned Judge also observed that, once the petitioner has not objected the manner in which the deposition was recorded O.P. (Crl.) 39/2014 12 and he, after signing the same, is estopped from challenging the correctness of the same at a later stage that, it was not read over to him and it was not properly recorded as he is expected to exercise the option at first the opportunity before signing the deposition.
11. Further in the decision reported in (AIR 1989 (S.C) 1785) Mirmohammad Omar v. State of West Bengal, the Hon'ble Supreme Court has held that, object of 278 is not intended to permit a witness to resile from his statement in the name of correction. So it is clear from the above decision that, even if the petitioner wants to make some correction in the deposition recorded by the presiding officer, it cannot be corrected by the court as intended by the witness. But as mentioned in Section 278 of the Code of Criminal Procedure, it can only be recorded as a memorandum noting that, after the statement was read over, the witnesses has pointed out certain corrections and that correction in the words of witness has to be recorded as such by the presiding officer and he shall add such O.P. (Crl.) 39/2014 13 remarks as he thinks necessary regarding the objection raised by the witness regarding the correctness of the deposition recorded. So under the circumstances, the petitioner is not entitled to now challenge the correctness of the depositions recorded by the magistrate.
12. As regards the procedure for taking out readable copy of the deposition of the presiding officer, this court has issued circular regarding the same, as circular No.27/70 (D1-25751/70 dated 06.08.1970, which reads as follows:
Recording of depositions and statements of accused persons- Preparation of legible copy of illegible deposition-Instructions issued.
It is noticed that the depositions of witnesses and the statements of accused persons recorded by some of the presiding officers are illegible. There have been instances where different versions of the depositions are to be found in the certified copies and in the copies forwarded to the High Court for the purpose of Referred Trials. The High Court would impress upon the presiding officers that it is essential to have a clear and legible record of the depositions of witnesses and the statements of accused persons.
2. If the handwriting of any presiding officer is not easily readable he will arrange for the preparation of clear legible copies of depositions and statements as soon as practicable after they are recorded. The presiding officer will carefully scrutinise the copies and certify O.P. (Crl.) 39/2014 14 their correctness. But, although these copies may be referred to, if necessary, certified copies must, of course, be prepared only from the original".
13. So it is clear from the above circular No. that, the office of the court is expected to take down the readable copy of the deposition recorded by the presiding officer, as soon as possible, immediately after the deposition is recorded, so as to avoid the difficulty of taking out the readable copy of the deposition of the presiding officer whose handwriting is not readable or illegible on a later occasion. This circular is expected to be followed strictly by the courts below. In this case, it is seen from the report of the presiding officer that, such a practice has not been followed in this case. So, it is necessary to issue a direction to the magistrate, to get the readable copy of the deposition of the witness recorded by the earlier officer with his assistance and that has to be kept in the record.
14. As regards the remedy of the petitioner is concerned, once he realises that, certain omissions were made or certain other factors will have to be brought to the O.P. (Crl.) 39/2014 15 notice of the court at the pre-charge examination of witnesses under Section 244 of the Code of Criminal Procedure, when he was not cross examined by the defence counsel, he can only apply to the court under Section 311 of the Code for seeking permission to give further chief examination to substantiate this case, as no prejudice will be caused to the accused at that stage, because he has not opted to cross examine the witness and deferred the cross examination after framing of charge, and he will be getting an opportunity to cross examine him at that stage as well. But if he has been cross examined on the basis of the material available, even at the pre-charge stage, then the remedy of the petitioner is only to clarify the same in the re- examination as at that time, he will be getting an opportunity to clarify the same in the re-examination stage. Such an opportunity will not be available to him in a case where he was not cross examined by the defence at the pre- charge stage. So under the circumstances, the observations made by the court below that, he will be getting an O.P. (Crl.) 39/2014 16 opportunity to clarify the things in the re-examination after the stage of Section 244 of the Code appears to be not correct because, if the evidence adduced are not sufficient, then the accused are likely to be discharged and he will not be getting an opportunity to adduce evidence thereafter. So under the circumstances, this court feels that, it is necessary in the interest of justice that an opportunity has to be given to the petitioner, to give further chief examination and not examine him chief afresh as claimed by him to clarify mistakes in the depositions recorded by the earlier presiding officer, so as to enable him to proceed with the case in accordance with law effectively. The mistake committed by the court below should not stand in the way of denying justice to the parties as well. So under the circumstances, this court disposes of the petition as follows:
The Judicial First Class Magistrate Court, Payyannur, is directed to get the readable copy of the deposition recorded in chief of PW1 in this O.P. (Crl.) 39/2014 17 case with the help of the presiding officer, who recorded the same by the court staff in tune with the circular mentioned in 27/70 of the High Court in this regard and keep the readable copy of the deposition in the file, as mentioned in those circulars and the concerned judicial officer is also directed to render his assistance to the staff in this regard.
If the petitioner files an application for permission for further chief examination, stating the things wanted to be elicited by him, which he had omitted to mention in the earlier chief examination, under Section 311 of the Code, then the learned magistrate is directed to consider and dispose of that application, after giving an opportunity to the accused to file objection to the same in accordance with law. Office is directed to communicate this order to the concerned court immediately. The registry is also directed O.P. (Crl.) 39/2014 18 to circulate this judgment to the subordinate courts for the purpose of their guidance in future.
With the above direction and observation, the petition is disposed of.
Sd/-
K. RAMAKRISHNAN, JUDGE // True Copy// P.A. to Judge ss