Kerala High Court
Prasanna Chandran Nair vs Nil on 22 December, 2011
Author: N.K. Balakrishnan
Bench: N.K.Balakrishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN
WEDNESDAY, THE 4TH DAY OF APRIL 2012/15TH CHAITHRA 1934
Crl.Rev.Pet.No. 309 of 2012 (C)
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CC.863/2009 of J.M.F.C.-I, CHERTHALA
REVISION PETITIONER(S)/ACCUSED:
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1. PRASANNA CHANDRAN NAIR
S/O.KESAVAN NAIR, VALAVANADU VEEDU
KARUVATTA THEKKUM MURI, KUMARAPURAM VILLAGE
ALAPPUZHA.
2. PRATAP KRISHNAN @ KANNAN
S/O.PRASANNA CHANDRAN NAIR, VALAVANADU VEEDU
KARUVATTA THEKKUM MURI, KUMARAPURAM VILLAGE
ALAPPUZHA.
3. RAJAMMA
W/O.PRASANNA CHANDRAN NAIR, VALAVANADU VEEDU
KARUVATTA THEKKUM MURI, KUMARAPURAM VILLAGE
ALAPPUZHA.
BY ADVS.SRI.S.RAJEEV
SRI.K.K.DHEERENDRA KRISHNAN
COMPLAINANT(S)/COMPLAINANT AND STATE:
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1. NARAYANANKUTTY KARTHA
S/O.DIVAKARAMENON, AMALASADAN HOUSE
COCHIN CORPORATION, WARD NO.35, VENNALA
ERNAKULAM.682 034.
2. STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR
HIGH COURT OF KERALA, ERNAKULAM.682 031.
R1 BY ADV. SRI.K.N.BALACHANDRAN KARTHA
R2 BY PUBLIC PROSECUTOR SRI.SREEJITH V.S.
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON
04-04-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Crl.Rev.Pet.No. 309 of 2012 (C)
APPENDIX
PETITIONERS ANNEXURES:
ANNEXURE I : COPY OF THE COMPLAINT FILED BY THE FIRST RESPONDENT
ANNEXURE II : COPY OF THE PETITION SUBMITTED BY THE PETITIONERS ON
01.12.2011
ANNEXURE III: COPY OF THE ORDER DATED 22.12.2011 PASSED BY THE
JUDICIAL MAGISTRATE OF FIRST CLASS-I, CHERTHALA, IN
CMP NO:10367/2011 IN CC NO:863/2009
RESPONDENTS ANNEXURES: NIL
//TRUE COPY//
P.A.TO JUDGE
JJJ
N.K. BALAKRISHNAN, J.
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Crl. R.P. No: 309 OF 2012 (C)
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Dated this the 4th day of April, 2012
O R D E R
The petitioners are the accused in C.C. No:863/2009 of Judicial First Class Magistrate-I, Cherthala. A private complaint was filed by the respondent/complainant alleging offence under section 379 of IPC. PWs 1 to 4 were examined and Exhibits P1 to P4(a) were marked.
2. The petitioners contend that they are entitled to cross-examine the witnesses, PWs 1 to 4, and that before cross-examination the charge cannot be framed against them. That petition was dismissed by the learned Magistrate and the request for discharge was turned down.
3. The learned counsel for the petitioners submits that since the accused were denied the right to cross- examine the prosecution witnesses at the stage of section 244 of Cr.P.C., the procedure adopted by the learned Magistrate is illegal and unsustainable. On the other hand, Crl. R.P. No:309/2012 -2- the learned counsel for the respondent/complainant submits that earlier a petition was filed by the petitioner on 13.05.2011, where also the request was that the accused should be permitted to cross examine the witnesses and that petition was disallowed by the Court below. Earlier the accused had approached this Court to quash the proceedings. This court disposed of that case giving liberty to the accused to plead for discharge at the appropriate stage. The learned Magistrate did not consider that the accused has a right to cross- examine the prosecution witnesses at the stage of section 244 of Cr.P.C., the petitioners contend.
4. In this connection, the learned counsel for the respondent/complainant relies upon the decision in Gopalakrishnan Vs. State of Kerala 2001(2) KLT 767 to fortify his submission that the accused has no right to cross examine the prosecution witnesses under section 244 of Crl. R.P. No:309/2012 -3- Cr.P.C. It was also argued by the learned counsel that the accused, in a case instituted upon the police report gets no opportunity to cross examine the prosecution witnesses during enquiry and so for the very same reason it must be held that the accused has no absolute right to cross- examine the prosecution witnesses. It is argued that though section 244 of the Code does not prohibit cross- examination before framing charge and that the Magistrate may in his discretion permit cross examination at that stage, it cannot be said that the refusal of a Magistrate to allow an accused to cross-examine the witnesses examined under section 244 of Cr.P.C. is illegal and irregular.
5. The learned counsel for the petitioners submits that what is required under section 244 of Cr.P.C. is that the Magistrate shall proceed to hear the prosecution and to take all such evidence as may be produced in support of the prosecution. The word used in Section 244 is "evidence". Crl. R.P. No:309/2012 -4- Similarly the word used in section 246 also is "evidence".
"Evidence" means, what is deposed by the witness in chief examination, cross-examination and re-examination. It is important to note that the evidence which the Magistrate has to record under section 244 of Cr.P.C. is the one after the accused appears or is brought before the Magistrate. When the accused appears in Court, it cannot be said that the accused has no right to cross-examine the witnesses and that he should be a mere silent spectator, when the witnesses and complainant are examined in Court.
6. Section 245(1) also makes it clear that what is required to be considered is that if upon taking of the evidence referred to in section 244, the Magistrate considers that no case against the accused has been made out, if rebutted, would warrant his conviction, the Magistrate shall discharge him. That also would make it clear that if the accused wants to cross- examine the prosecution witnesses Crl. R.P. No:309/2012 -5- at the stage of section 244 then that right cannot be denied since that is a valuable right conferred on the accused.
7. The learned counsel for the respondents would submit that in the Order dated 13.5.2011, the then learned Magistrate observed that the Court need not allow the accused to cross-examine the complainant and his witnesses at the stage of taking evidence for the prosecution under section 244 of Cr.P.C. and since, that Court did not allow his application for cross- examination, the accused cannot thereafter contend that charge cannot be framed without allowing the accused to cross-examine PWs 1 to 4. But in this connection, the learned counsel for the petitioners would submit that the earlier order dated 13.5.2011 was not sought to be reviewed by the learned Magistrate, but the request made by them before the Court below was that the accused are entitled to be discharged and it was in that context, argument was raised that the accused were denied Crl. R.P. No:309/2012 -6- the right to cross-examine the prosecution witnesses. The plea that the accused can cross-examine the witnesses after the framing of the charge and when the witnesses are examined at the time of trial, cannot be a justification to deny the cross-examination of the witnesses at the stage of section 244 of Cr.P.C. No doubt if the witnesses, when examined at the stage of section 244 were not cross- examined by the accused then it cannot be said that the witnesses should be re-called at the request of the accused. The accused should make use of the opportunity to cross examine the witnesses when such witnesses were examined under section 244 of Cr.P.C. But when the witnesses were being examined a request was made by the accused for cross-examination and if the counsel was ready to cross- examine the witnesses, then it cannot be said that the accused can be denied the right of cross-examination. Crl. R.P. No:309/2012 -7-
8. The decision of the apex court in Ajoy Kumar Ghose Vs. State of Jharkhand and another (2009) 14 SCC 115 has been relied upon by the learned counsel for the petitioners in support of his submission that the right of cross examination cannot be denied. That was a case where the opportunity of the accused to cross-examine the witnesses was lost as the trial Court straightaway proceeded to frame the charges. Therefore, the apex Court quashed the order framing the charge and the case was remitted back to the trial Court and the prosecution was directed to offer the witnesses, under section 244(1) CrPC, for cross- examination by the accused.
9. The learned counsel for the petitioners submits that there was a civil dispute between the parties, and so the charge under section 379 of IPC is unsustainable and for that purpose the accused has to bring those materials Crl. R.P. No:309/2012 -8- before the trial Court to apprise the court that the dispute is purely of civil nature and that the materials relied upon by the prosecution are insufficient to frame charges against the accused. The learned counsel for the respondent submits that the accused was adopting delaying tactics, and it is to further delay the proper disposal of the case, the petition was filed.
10. Since the accused has a right to cross-examine the witnesses at the stage of section 244 CrPC, the impugned order is set aside. The learned Magistrate will allow the accused to cross-examine PWs 1 to 4. The learned Magistrate will give a specific posting date for that purpose which shall be within a period of 30 (thirty) days from the date of appearance fixed by this Court. The learned Magistrate will thereafter, consider the question whether there are materials to frame charge against the Crl. R.P. No:309/2012 -9- accused which also should be done within one month from the date of completion of the cross-examination and re- examination, if any, of PWs 1 to 4 as mentioned above.
This Criminal R.P. is allowed as above. The parties will appear before the learned Magistrate on 26.4.2012.
Sd/-
N.K. BALAKRISHNAN, JUDGE //True Copy// P.A. to Judge jjj