Kerala High Court
P.M. Abubacker vs P.J. Alexander on 14 October, 1999
Equivalent citations: 2000CRILJ1168
ORDER K.A. Mohamed Shafi, J.
1. The 2nd accused in C.C. 139/ 95 on the file of the Judicial First Class Magistrate's Court-I, Ernakulam is the petitioner. The petition is filed to quash Annex-ure-A4 order dated 6-6-1995 passed in C.M.P. 950/95 in C.C. 139/95.
2. On the basis of a complaint filed by the respondent 4 accused persons including the petitioner as the 4th accused were prosecuted for the offences punishable under Sections 500, 501 and 502 r/w Section 34, I.P.C. alleging that an article containing false and defamatory imputations against the respondent was published in the Sunday Weekly for the week between 17th and 23rd June, 1990, before the Chief Judicial Magistrate's Court, Ernakulam. The trial was proceeded with and after completion of the prosecution evidence, the accused were questioned under Section 313, Cr. P.C. and the evidence of some of the defence witnesses was recorded the complainant-respondent filed a petition on 31-12-1994 to compound the offence as against the 3rd accused, which was allowed by the Court. Accordingly the offence against the 3rd accused was compounded, he was acquitted under Section 320(8) of the Cr. P.C. and the case against accused Nos. 1, 2 and 4 was re-filed as C.C. 577/94. Subsequently on 4-4-95 the respondent-complainant filed a petition to compound the offence against the 2nd accused which was also allowed by the Court. The 2nd accused was acquitted under Section 320(8) of the Cr. P.C. after compounding the offence against him and the case against accused 1 and 4 was re-filed as C.C. 139/95. Since the 1st accused was absconding, the case against him was split up. At that stage the respondent-complainant filed C.M.P. 950/95 under Section 311 of the Cr. P.C. to examine the 3rd accused Sreedhar Pillay as a witness in the case.
3. In the petition filed by the respondent before the lower Court, a copy of which is produced as Annexure-A2, it is alleged that the 3rd accused-Sreedhar Pillay authored the impugned article and therefore, the source of origin of the defamatory article is something which is known exclusively to him. It is also alleged that the origin of this false information is a matter in issue for a just and correct decision in the case and it is seen from the documents submitted by Sreedhar Pillai in the form of an affidavit and petition that it was Sri. T. V. Madhusoodanan, the present D.G.P., junior to the complainant who gave the false information for publication and it has been brought out that Sri. T. V. Madhusoodanan deliberately invented this false information for publication for the purpose of achieving official advantage over the complainant as he was junior to the complainant in the Kerala cadre of I.P.S. It is further stated that only by examining Sreedhar Pillai that the most relevant facts regarding the actual authorship of the impugned publication will be made out and without his evidence the case will have to be decided against the other accused persons leaving the main culprit who deliberately engineered this publication, and therefore, his evidence is highly necessary for the ends of justice and to bring to book the actual culprit also whose name could not be included in the complaint in the array of accused.
4. The petitioner-2nd accused resisted the application on various grounds by filing a detailed counter, a copy of which is produced as Annexure-A3 to this petition. The learned Magistrate by Annexure-A4 order allowed the petition filed by the respondent. Hence the petitioner has filed this M.C. to quash the order under Section 482 of the Cr. P.C.
5. In the impugned order the learned Magistrate has stated that he is of the view thai the complainant should not be denied an opportunity to bring to book the actual offender, who according to him, has been hiding behind the scene, due to the fact that he could trace out the actual culprit only at a belated stage.
6. As already noted C.M.P. 950/95 is filed by the respondent under Section 311 of the Cr. P.C. Section 311 of the Cr. P.C. relates to the power of the Court to summon material witness or examine person present, which reads as follows:
311. Power to summon material witness, or examine person present -- Any Court may, at any stage of any enquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as awitness, or re-call or re-examine, any person already examined; and the Court shall summon and examine or re-call and re-examine any such person if his evidence appears to it to be essential to the just decision of the case.
From the above Section it is clear that any Court is empowered at any stage of any enquiry or trial or other proceeding under the Code of Criminal Procedure to summon and examine or re-call and re-examine any person if his evidence appears to the Court to be essential to the just decision of the case.
7. In this case the respondent seeks to examine the 3rd accused to bring in evidence to the effect that one Sri. T.V. Madhusoodanan who has not been arrayed as an accused in the case so far, is the real culprit and to implicate him as accused in this case on the basis of the evidence that is to be tendered by the 3rd accused on his summoning and examination in Court. Section 311 of the Cr. P.C. empowers the Court to examine any witness, if his evidence is essential to the just decision of the case. In this case it is patent from the allegations made by the respondent in the petition itself noted above that he seeks the aid of the Court under Section 311 of the Cr. P.C. to summon the witness in order to implicate a third party who is not an accused in the case at the fag end of the trial on the allegations that he is the actual culprit which fact came to his notice only at this belated stage. The argument advanced by the counsel for the respondent that the respondent has only sought for examination of a witness and the question whether any other person has to be implicated in this case or not will depend upon the evidence that may be given by the witness to be summoned and the Court's finding that his evidence is acceptable, and therefore absolutely no prejudice or hardship will be caused to the petitioner by the order passed by the Court allowing to summon the third accused in this case, has to be rejected on the face of the allegations made by the respondent in Annexurc-A2 petition filed by him before the Magistrate's Court. It is clearly stated in the petition that the 3rd accused has disclosed that the actual author of the defamatory statement is Sri. T. V. Madhusoodanan and that fact is revealed by the 3rd accused at the belated stage and therefore, his evidence is highly necessary for the ends of justice and to bring to book the actual culprit. Therefore, it has to be noted that the above petition filed by the respondent is beyond the scope and ambit of Section 311 of the Cr. P.C. which empowers the Court to summon and examine or re-call and re-examine any witness if his evidence appears to the Court to be essential to the just decision of the case. The provisions of Section 311 are essentially intended in the interests of justice to bring to Court all the necessary evidence in respect of the case that is being tried by the Court and it is not intended to bring in any evidence before Court to implicate persons who were made parties to the proceedings, at a very belated stage and long after the prosecution against them is barred by time under the provisions of Section 468 of the Cr. P.C.
8. The very object and purport of Section 311 of the Cr. P.C. is to avoid failure of justice on account of the mistake or failure on the part of either party to the proceeding to bring in necessary and valuable evidence on record essential for the just decision of the case. It is clear from Section 311 that wide discretion is given to the Court to summon and examine or to re-call and re-examine any such person if his evidence appears to the Court to be essential to the just decision of the case, affording an opportunity to both the accused and prosecution to cross-examine the witness unlike the witness cited and examined by either of them. Obviously Section 311 contains two parts. In the first part the word used is 'may' whereas in the second part the word used is 'shall'. The first part of the Section gives to the Criminal Court a purely discretionary right and enables it to summon any person as a. witness or to examine any person present in Court or rc-call and re-examine any person whose evidence has already been recorded at any stage of an enquiry, trial or other proceedings. But under the second part of the Section if the evidence of such person appears to the Court to be essential to the just decision of the case, it is mandatory and incumbent upon the Court to take the aforesaid steps and examine the witness. But this prerogative or the jurisdiction of the Court can be exercised judiciously and only when the Court considers that the examination of such witness is absolutely necessary to do justice between the parties. Therefore, the Courts should be very cautious in exercising the authority conferred under the provisions of Section 311 of the Cr. P.C.
9. In the affidavit filed by the respondent in support of the petition it is stated that the respondent seeks to examine Sreedhar Pillai to bring out the facts regarding the actual authorship and the source of the impugned implication, and the origin of the false information is a matter in issue for the just and correct decision in the case.
10. Chapter XXI of the I.P.C. comprising Sections 499 to 502 regarding defamation deals with making or publishing defamatory statements by words either spoken or intended to be read, or by signs or by visible representations. The source of information is not a consideration for prosecution for defamation under that chapter. Therefore, the contention of the respondent that the source of information regarding the defamatory statement published in this case is a matter in issue and therefore, examination of Sreedhar Pillai who alone knows about the source of information, is essential in this case, is absolutely untenable.
11. Under Section 319 of the Cr. P.C. during the course of any enquiry into or trial of an offence, if it appeared from the evidence that any person not being an accused has committed any offence for which such person could be tried together with the accused, the Court can proceed against the person for the offence which he appears to have committed. In order to invoke the power of the Court conferred under Section 319 of the Cr. P.C. to implicate a person who has not been implicated as accused in a particular case, there should be evidence on record brought in during the course of enquiry into or trial of the offence that such person has committed any offence for which he could be tried together along with the other accused already on record. In this case there is absolutely no evidence to make it appear that Sri. T. V. Madhusoodanan who is sought to be implicated, has committed any offence, for which he may be proceeded against with the other accused already arrayed. The only intention of the respondent is to bring in fresh evidence on record so as to implicate Sri. T. V. Madhusoodanan by examining the 3rd accused. Such a course is not only not contemplated under Section 319 of the Cr. P.C. but is beyond the scope of that provision.
12. The contention of the petitioner that even though the respondent has compounded the offences against the 3rd accused, he still continues to be an accused for all practical purposes in this case, is not sustainable. When an accomplice is pardoned under Section 306 of the Cr. P.C, he becomes a competent witness and can be examined as any other witness in the case. Likewise when the prosecution against an accused is withdrawn and he is discharged under Section 321 of the Cr. P.C., he becomes a competent witness in the case as any other witness. Likewise, when the offence against an accused is compounded and he is acquitted under Sub-section (8) of Section 320 of the Cr. P.C, he becomes a competent witness in the case. Therefore, the contention of the petitioner that Sreedhar Pillai though acquitted under Section 320(8) of the Cr. P.C. after compounding the offence against him, continues to be in the position of co-accused along with the petitioner and therefore he is incompetent to be examined as a witness in this case, is not sustainable.
13. The next question to be considered is whether the examination of Sreedhar Pillai who was the 3rd accused in this case, is necessary or essential to the just decision of this case. It is contended that the prosecution evidence in this case was closed on 18-1-1992 and the accused was questioned under Section 313 of Cr. P.C by the Court. According to the petitioner, when Sreedhar Pillai was questioned as 3rd accused under Section 313 of Cr. P.C. on 5-2-92, he had given his defence version and denied the entire prosecution story. It is also contended that thereafter several witnesses were examined on behalf of accused Nos. 3 and 4 on the defence side. It is further contended by the petitioner that the offence against the 3rd accused was compounded by the respondent on 31-12-94 and the offence against the 2nd accused was compounded on 5-4-95, on which date the above petition to examine the 3rd accused as a witness in the case is filed. According to him, the respondent has filed the above petition only with the avowed mala fide intention and ulterior motive to harass him and delay the prosecution, which is already delayed for about ten years. As already noted the very purpose of examination of Sreedhar Pillai alleged by the respondent is to let in evidence to implicate a person who is not an accused in the case so as to bring him in the array of the accused, which is not contemplated under Section 311 of the Cr. P.C. which empowers the Court to re-call or re-examine or summon and examine any person if his evidence appears to be essential to the just decision of the case.
14. By resorting to examine the 3rd accused as witness to bring in evidence before Court against a person who is not in the party array as the accused, the respondent proposes to convert the Court into an investigating agency under the guise of the provisions of Section 311 of the Cr. P.C. Under the guise of the provisions of Section 311 of the Cr. P.C. the complainant cannot be permitted to use the Court to fish out evidence so as to implicate a 3rd party in the case, especially when the prosecution against him is barred by time.
15. The above petition filed by the respondent to summon the 3rd accused as a witness in this case cannot be allowed in the larger interests of administration of justice and the litigant public. In this case it is pertinent to note that the respondent has chosen to compound the offence against accused Nos. 2 and 3 at the very fag end of the trial while the defence witnesses were being examined after the closure of the prosecution evidence and examination of the accused under Section 313 of the Cr. P.C. Thereafter the above petition is filed to examine the 3rd accused as a witness in this case by invoking the provisions of Section 311 of the Cr. P.C. Though the accused against whom the offence is compounded and is acquitted under Section 320(8) of the Cr. P.C. will be a competent witness in the case for the just decision of the case, the above petition filed to examine the 3rd accused as a witness to adduce evidence against a person who is not a party to the proceedings, with the intention to bring in evidence so as to implicate him in the case at this very distant point of time and long after the prosecution against him is barred under law, cannot be allowed.
16. If such petitions are allowed to facilitate implication of new persons who are not implicated in the case as accused by examining a co-accused, the offence against whom is compounded by the complainant at a very belated stage of trial, it will send not only very wrong signals to the litigant public but it will jeopardise and undermine the entire criminal justice administration system. Such practice will facilitate for the complainants either by winning over or inducing the accused by compounding the offence against him, implication of any other person of his choice in the case sparing the accused already implicated in the case. Such a course if followed will not only create utter confusion and anarchy in the general public but it will result in very serious inroads to faith reposed by the society in and the very credibility of the criminal justice administration system in the country. I am afraid that such a situation will not only affect the majesty of justice, but will undermine the very justice administration system. Therefore, such nefarious practice by cunning or unscrupulous litigants cannot be encouraged by the Courts under the guise of exercising the power conferred under Section 311 of the Cr. P.C. Annexure-A4 order passed by the learned Magistrate in this case is absolutely wrong, illegal and unsustainable which is liable to be interfered with by this Court by exercising the inherent jurisdiction under Section 482 of the Cr. P.C. Hence this Crl. M.C. is allowed. The impugned Annexure-A4 order passed by the learned Magistrate, is quashed and CM.P. 950/95 in C.C. 139/95 filed by the respondent is dismissed.