Kerala High Court
Sreedhar Pillay And Ors. vs P.J. Alexander And Anr. on 29 July, 1992
Equivalent citations: 1992CRILJ3433
ORDER M.M. Pareed Pillay, J.
1. Crl. M.C. 847 of 1992 is filed by A3 and Crl. M.C. 881 of 1992 is filed by A4 in C.C. 435 of 1990 of the Court of the Chief Judicial Magistrate, Ernakulam.
2. The complaint is filed under Section 500 read with Section 34 of the I.P.C. against the Printer and Publisher of English Weekly "Sunday". An article along with an interview of the 4th accused published in the weekly is the subject matter of the defamation complaint. Complainant's case is that the impugned article maligned his good name and damaged his reputation. In the publication it is stated that the conduct of the complainant in the investigation of Hamza murder case was not above board.
3. Complainant examined himself as P.W. 1. Two other witnesses were examined on his side. The complainant closed his evidence and thereafter accused were questioned under Section 313, Cr. P.C. Petitioners (A3 and A4) wanted defence evidence. A4 wanted to examine 17 witnesses and submitted a list to that effect. A3 wanted to examine 13 witnesses and filed list. From out of the list given by A4, three witnesses were examined. They are accused 11, 14 and 9 in the Hamza murder case.
4. Grievance of the petitioners is that the learned Chief Judicial Magistrate refused to examine the remaining witnesses in the witness lists given by them. The learned Chief" Judicial Magistrate held that it is not necessary to examine the witnesses cited by the petitioners and refused to issue summons.
5. Contention of the petitioners is that the learned Chief Judicial Magistrate was hot justified in passing the impugned order as it would result in a total destruction of their case. Counsel submitted that as the publication has already been admitted burden is on the petitioners to prove the exceptions under Section 500 of the I.P.C. and for that purpose it is really very necessary to examine the witnesses and hence shutting out the same would amount to complete denial of justice. Learned counsel for the complainant (first respondent) pointed out that the attempt of the petitioners is only to protract the proceedings, that most of the witnesses mentioned in the witness lists are either the accused or witnesses in the Hamza murder case and their examination would not in any manner be helpful to resolve the controversy between the parties.
6. In a case tried as a summons case if the Magistrate does not convict the accused under Section 252 or 253, he has to hear the prosecution and take all such evidence as may be produced in support of the prosecution. He has also to hear the accused and take all such evidence as he produces in his defence. Section 254(2) provides that the Magistrate may, if he thinks fit, on the application of the prosecution or the accused, issue a summons to any witness directing him to attend or to produce any document 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 of course open to him to decline the request for summoning the witnesses.
7. The power under Section 254(2) 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) 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. Section 243(2) provides that in a case tried as a warrant case the Magistrate can reject application filed by the accused for issuing process for compelling the attendance of any witness or the production of any document or thing, if , he finds that the application is made for the purpose of vexation or delay or for defeating the ends of justice. Under Sections 233(2) and 243(2) the power of the Sessions Judge and Magistrate to refuse issuance of process is circumscribed by the three factors mentioned specifically viz. vexation, delay or defeating the ends of justice. Thus, in cases not coming under any of the above categories Sessions Judge or the Magistrate in a trial of warrant cases will have to issue process to the defence witnesses. 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 is concerned. But that does not mean that the Magistrate can act arbitrarily, whimsically or Capriciously. It 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 Magistrate will have to assess the over all situation in any case 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.
8. 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 afforded to the accused to adduce his evidence. But he cannot have unfettered liberty 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 innocence by defence evidence cannot be thwarted. Even in a case where the evidence is strong for the prosecution accused is entitled to rebut it by examining his own witness or producing documents which would furnish good material for rebutting the prosecution case. In such a situation that could be proved by the accused only if he is allowed to adduce defence evidence. Court cannot take an attitude that the evidence so far adduced by the prosecution or the complainant 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 Ronald v. State of West Bengal AIR 1954 SC 455 : (1954 Cri LJ 1161) where the Apex Court held (para 10) :
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.
As the accused have admitted publication and as it is their definite case that they were justified in publishing the article and as they want to prove it by examining witnesses on their side and causing production of certain documents, the Chief Judicial Magistrate ought to have allowed the defence evidence.
9. As the publication is admitted by the accused and as they want to justify the publication by establishing that it is nothing but truth and made in good faith, the necessity on their part to examine the defence witnesses cannot be underestimated. Counsel for the petitioners submitted that A4 filed witness list on 5-2-1992 and that A3 filed witness list on 10-6-1992 when the Chief Judicial Magistrate has posted the case to that date with specific direction to file witness list. It is pointed out that the evidence on the side of the complainant was over only on 27-1-1992 and therefore it cannot be held that the petitioners have sought to examine their witnesses highly belatedly.
10. Counsel for the petitioners submitted that in view of the observation of the learned Chief Judicial Magistrate that certified copies of certain documents could be produced by the petitioners there is no necessity to examine witnesses 2, 5 and 13 in the list given by A3. Counsel submitted that other witnesses in A3's list have to be examined. Counsel further submitted that so far as A4's list is concerned he wants to examine only witnesses 1, 2, 10 and 15.
11. The order of the Chief Judicial Magistrate is set aside. The Chief Judicial Magistrate is directed to allow the petitioners to adduce defence evidence.
Petitions stand allowed.