Kerala High Court
Kamarudheen vs Shoukkathali on 10 August, 2001
Equivalent citations: 2001(2)ALT(CRI)480, 2002CRILJ1289
JUDGMENT N. Krishnan Nair, J.
1. This petition is filed under S. 482 of the Cr.P.C. to quash the common order dated 3.3.2001 of the Judicial First Class Magistrate, Malappuram in Crl.M.P. No. 1525/2001 and Crl.M.P. 1524/2001 in S.T. 6706/1998.
2. The petitioner is the accused in S.T. 6706/1998. The case arose on a complaint filed by the first respondent against the petitioner alleging the commissioner of the offence punishable under S. 138 of the Negotiable Instruments Act. The complaint was examined as PW1 and two other witnesses were examined as PWs. 2 and 3. After the examination of the accused under S. 313 of the Cr.P.C. the case was posted for defence evidence. Though sufficient opportunity was given to the accused to adduce defence evidence, no witness was cited or examined on the defence side. Therefore, the learned Magistrate posted the case for arguments on 3.3.2001. On that day, the accused filed C.M.P. No. 1525/2001 and C.M.P. 1524/2001 to resummon the complainant to examine him as a witness for the defence. The lower court by the impugned order dismissed both the petitions. Hence this petition.
3. The learned counsel for the petitioner strongly contended that the lower court should have allowed the petitioner to examine the first respondent as a defence witness. According to the learned counsel, as per S. 243 of the Cr.P.C. the accused in a case is entitled to examine any person as a witness for the defence.
4. The question arising for consideration is whether an accused in a warrant case instituted otherwise than on a police report has got a right to compel the attendance of the complainant before the Court as a witness for the defence. According to the learned counsel for the petitioner as per the provisions contained in S. 243 of the Cr.P.C. the accused can compel the attendance of any witness for the defence and "any witness" would include the complainant also. I cannot agree. No doubt, S. 247 of the Cr.P.C. lays down the provisions of S. 243 shall also apply to a case instituted otherwise than on a police report. Sub-s. 2 of S. 243 of the Cr.P.C. provides for the issue of process for compelling the attendance of any witness cited by the accused for the purpose of examination or cross-examination or production of any document or other thing. Thought a prosecution witness can be re-summoned under S. 243 at the instance of the accused, in my view, a complainant cannot be resummoned. According to me, the words 'any witness' in sub-s. 2 of S. 243 would not include the complainant. It is not just and proper to compel a person to be a witness against himself. As a matter of right a party can not have the opposite party examined as a witness.
5. Even if it is assumed that the words "any witness" in sub-s. 2 of S. 243 would include the complainant also, in this case the accused is not entitled to recall the complainant to examine him as defence witness in view of the proviso to sub.s. 2 of S. 243. As per the proviso to sub-s. (2) of S. 243 when the accused had opportunity to cross-examine a witness, the attendance of such witness shall not be compelled unless the Magistrate is satisfied that it is necessary for the ends of justice. In this case, as stated earlier, the complainant was already cross-examined by the accused. The accused has no case that the attendance of the complainant is required for the purpose of further cross examination.
6. It is gatherable from the order of the lower court that sufficient opportunity was given to the accused to adduce evidence. But, he has not availed of it. Therefore, he is not entitled to ask the court to reopen the case after it is adjourned for arguments. I see no merit in this petition. This petition is groundless and is liable to be dismissed.
7. In the result, the petition is dismissed.