Kalladikkattil Mohammed Jamal vs State Of Kerala on 5 December, 2016
12. This Court in Tomy.T.J.'s case (supra) had specifically
directed that the trial court should return back the affidavit submitted by
the accused and should permit the accused to ensure that in case he
voluntarily examined himself as a defence witness, then the trial court
should allow the defence witness DW-1/accused to tender his oral
evidence in terms of Section 315 of the Cr.P.C. The present impugned
order in Annexure-V is illegal and ultravires and has caused
unnecessary inconvenience to both the complainant and the accused.
Such situation could be easily avoided by the trial court by adopting the
abovesaid procedure and by disabusing the notion that the earlier
proceedings allowing the accused to tender proof affidavit in lieu of chief
examination, would be a total bar from him being examined afresh in
terms of Section 315 of the Cr.P.C. on the purported ground that it
cannot be reviewed due to the bar contained in Section 315 of the
Cr.P.C. If the said mechanistic approach of the learned Magistrate is
upheld, then it will amount to denying the accused his precious right to
defend himself in a criminal trial, which is nothing short of flagrant
violation of the "due process" protection of Article 21 of the Constitution
of India.