Telangana High Court
V.Sunkara Naidu vs The State Of A.P. on 28 June, 2018
IN THE HIGH COURT OF JUDICATURE AT HYDERABAD
FOR THE STATE OF TELANGANA AND THE STATE OF ANDHRA PRADESH
****
Criminal Petition No.866 of 2018
Between:
V. Sankara Naidu. ... Petitioner/Accused
AND
The State of Andhra Pradesh
Rep. by its Public Prosecutor,
High Court of Judicature at Hyderabad,
For the State of Telangana and the State of Andhra Pradesh
and another. ... Respondents
DATE OF JUDGMENT PRONOUNCED: 28.06.2018
SUBMITTED FOR APPROVAL:
THE HON'BLE SRI JUSTICE U. DURGA PRASAD RAO
1. Whether Reporters of Local Newspapers
may be allowed to see the judgment? Yes / No
2. Whether the copies of judgment may be
marked to Law Reporters / Journals? Yes / No
3. Whether Their Lordship wish to
see the fair copy of the Judgment? Yes / No
_________________________
U. DURGA PRASAD RAO, J
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* THE HON'BLE SRI JUSTICE U. DURGA PRASAD RAO
+ Criminal Petition No.866 of 2018
% 28.06.2018
Between:
V. Sankara Naidu. ... Petitioner/Accused
AND
The State of Andhra Pradesh
Rep. by its Public Prosecutor,
High Court of Judicature at Hyderabad,
For the State of Telangana and the State of Andhra Pradesh
and another. ... Respondents
! Counsel for Petitioner : M/s. Vankina, Allu &
Parasaram Advocates
^ Counsel for Respondent No.1 : Public Prosecutor (AP)
^ Counsel for Respondent No.2 : ----
< Gist:
> Head Note:
? Cases referred:
1) ILR 2004 Karnataka 2382
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HON'BLE SRI JUSTICE U.DURGA PRASAD RAO
Crl.P.No.866 of 2018
ORDER:
This Criminal Petition is filed by the petitioner/accused under Section 482 Cr.P.C. challenging the order dated 18.01.2018 in Crl.M.P.No.1505 of 2017 in C.C.No.8 of 2016 passed by the Special Magistrate-cum-VI Additional Junior Civil Judge, Tirupati dismissing the application filed by him und Section 315 Cr.P.C.
2) The factual matrix of the case is thus:
a) The respondent/complainant filed C.C.No.8 of 2016 against the petitioner/accused under Section 138 and 142 of Negotiable Instruments Act, 1881. After examination under Section 313 Cr.P.C, accused examined DW1 and thereafter he filed the petition under Section 315 Cr.P.C. seeking leave of the trial Court to examine himself as witness to disprove the allegations made by the complainant. The said petition was opposed by the respondent/ complainant on the ground that the accused is not entitled to adduce his evidence subsequent to the examination of his witness and if the petition is allowed, the accused would fill up the lacuna in the evidence of his witnesses. The said contention was found favour with the trial Court and thereby the petition was dismissed.
Hence, the instant Criminal Petition.
3) Heard.
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4) Fulminating the order of the trial Court, learned counsel for
petitioner would argue that Section 315 Cr.P.C. gives a right to the accused saying that accused in a criminal case is a competent witness for the defence and therefore he may give evidence on oath to disprove the charges made against him, for which the only requirement is that he shall make a request to that effect in writing. He would argue that unlike the Civil Procedure Code, neither Section 315 Cr.P.C. nor any other provision in the Code mandates that the accused shall examine himself before his witnesses are examined. In view of absence of such embargo, the accused can examine himself even subsequent to his witnesses. He placed reliance on the judgment of the Karnataka High Court in B.M.Arif vs. M/s.Boston Tea (India) Limited by its Director, Mangalore1.
5) Learned counsel for respondent/complainant opposed the petition on two main grounds. Firstly, that the petition under Section 482 Cr.P.C. is not maintainable inasmuch as the order impugned being an interlocutory order, no revision is maintainable against that order under Section 397 Cr.P.C. That being so the said interlocutory order cannot be challenged under Section 482 Cr.P.C. by invoking the inherent jurisdiction of the High Court. Learned counsel would pointed out what cannot be done directly cannot be achieved indirectly also. He relied upon the order of the learned Judge of this Court in Criminal Petition No.12287 of 2017 dated 18.12.2017. 1 ILR 2004 Karnataka 2382 5
a) Nextly, he would argue that even assuming that criminal petition is maintainable under law it is devoid of merits because, the petitioner/accused has not chosen to examine himself prior to his witnesses and permission at this stage would amount to allowing him to patch up the crucial gaps left over by his witness. Hence, interference with impugned order is not warranted.
6) The points that arise for determination in this petition are:
1) Whether the impugned order is an interlocutory order and if so, can it not be challenged under Section 482 Cr.P.C?
2) If point No.1 is held negatively, whether the petitioner/ accused has to examine himself at first before his witnesses?
7) POINT No.1: The impugned order was passed in the context of Section 315 Cr.P.C. which reads thus:
"315. Accused person to be competent witness.
(1) Any person accused of an offence before a Criminal Court shall be a competent witness for the defence and may give evidence on oath in disproof of the charges made against him or any person charged together with him at the same trial:
Provided that-
(a) he shall not be called as a witness except on his own request in writing;
(b) his failure to give evidence shall not be made the subject of any comment by any of the parties or the Court or give rise to any presumption against himself or any person charged together with him at the same trial.6
(2) Any person against whom proceedings are instituted in any Criminal Court under section 98, or section 107, or section 108, or section 109, or section 110, or under Chapter IX or under Part B, Part C or Part D of Chapter X, may offer himself as a witness in such proceedings: Provided that in proceedings under section 108, section 109 or section 110, the failure of such person to give evidence shall not be made the subject or any comment by any of the parties or the Court or give rise to any presumption against him or any other person proceeded against together with him at the same inquiry."
The above Section lays down that the accused of an offence before a criminal court shall be a competent witness for the defence and may give evidence on oath to disprove the charges made against him or any person charged together with him in the same trial. Therefore, Criminal Procedure code conferred a right on the accused to examine himself as a defence witness to disprove the charges levelled against him by the prosecution. Under criminal jurisprudence, a presumption of innocence is in favour of accused and the burden will be on the prosecution to prove his guilt beyond reasonable doubt. No adverse inference can be drawn against the accused by the Court for his remaining silent during the criminal proceedings. However, at the same time, if the accused in a criminal case chooses to examine himself as defence witness, the prosecution or for that matter Court cannot intercept him. The Criminal Procedure Code in the form of Section 315 reiterated the right of an accused to be a defence witness by himself. The only requirement is that he shall make a request in writing to that effect. The purpose of his giving evidence as laid down 7 in Section 315 Cr.P.C. is to disprove the charges made against him in the criminal case. This right of accused is a valuable one which is preserved and safeguarded by the code. That being so, any order passed by a Court either allowing or dismissing the application filed under Section 315 Cr.P.C. cannot be regarded as a mere interlocutory order for, in my considered view, such order will have an impact on the finality of the case. To be vivid, if his application is allowed and he is permitted to give evidence to disprove the charges levelled against him or any person charged together with him, his evidence will certainly have impact on the result of the criminal case. So also, dismissal of his application will also have repercussion on the finality/ result of the case. The order passed under Section 315 Cr.P.C. cannot be regarded as an interlocutory order and therefore, I am unable to accept the argument of the respondent in this regard. Consequently the decision in Crl.P.No.12287 of 2017 will have no application.
This point is answered accordingly.
8) POINT No.2: A perusal of Section 315 which is already extracted, would only spell out that an accused of an offence in a criminal case shall be competent witness for the defence and he can exercise that right by making a request in writing. As rightly argued by the counsel for petitioner neither Section 315 nor other provisions in Cr.P.C. mandates that he shall exercise that right by examining himself at first before his other witnesses. No such condition is ordained. 8
9) In similar circumstances, in B.M.Arif's case (1 supra) the Karnataka High Court has held thus:
"Para-10: A reading of the provisions referred to above makes it clear that in a criminal proceeding, the status of an accused is not akin to a defendant in a civil proceeding. The onus of proving everything essential to the establishment of a charge is wholly upon the prosecution. It is so also in cases instituted otherwise than a police report. The words, "and also to hear the accused and take all such evidence as he produces in his defence."
used in Section 254(1) of the Cr.P.C. makes it clear that the option of producing any defence witness is with the accused. A reading of Sections 254(1) and 315(1) of the Cr.P.C. shows that though an accused is a competent witness, he cannot be called as a witness except on his own request in writing. His failure to give evidence also cannot be made the subject of any comment by any of the parties or the Court. There is also no provision in the Criminal Procedure Code stipulating that when he wishes to appear as a witness, he shall so appear before any other witness has been examined. His application under Section 254(2) of the Cr.P.C. for issuance of a witness summons cannot be rejected on the ground that he may examine such witness after he is examined as a witness for defence."
10) Needless to emphasize that the ratio in the above citation applies with all its fours to the case on hand. In that view, the impugned order is not sustainable in law and hence liable to be set aside.
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11) In the result, this Criminal Petition is allowed and the order in Crl.M.P.No.1505 of 2017 in C.C.No.8 of 2016 is set aside and trial Court is directed to permit the petitioner/accused to examine himself for a defence witness and also any other persons as defence witnesses.
As a sequel, miscellaneous applications pending, if any, shall stand closed.
_________________________ U.DURGA PRASAD RAO, J Date: 28.06.2018 Note: L.R. Copy to be marked: YES / NO Murthy