Nakkheerangopal v. Kovai Thangam

IN THE HIGH COURT OF JUDICATURE AT MADRASDATE: 7.1.2008.CORAMTHE HON'BLE MR.JUSTICE M.JEYAPAULCrl.R.C.No.1449 of 2007andM.P.No.1 of 2007NakkheerangopalPetitioner vs. Kovai ThangamRespondentCriminal Revision Case filed under sections 397 and 401Cr.P.C. to set aside the order passed by the learned JudicialMagistrate VII, Coimbatore on 10.9.2007 in Crl.M.P.No.7853 of 2007in C.C.No.200 of 2004 and to consequently direct the learnedJudicial Magistrate VII, Coimbatore to issue summons to all thewitnesses cited in the list of defence witnesses submitted by thepetitioner/accused in Crl.M.P.No.7853 of 2007 and also for anyadditional defence witnesses if prayed for in future by thepetitioner/accused.For petitioner : Mr.P.T.PerumalFor respondent : Mr.V.Gopinath, Senior Counsel for Mr.L. MahendranORDERThe revision is directed against the order passed by thelearned Judicial Magistrate VII, Coimbatore rejecting the plea ofthe petitioner who is the first accused in C.C.No.200 of 2004 toexamine five co-accused as witnesses on his side. Of course, thelearned Judicial Magistrate VII, Coimbatore was pleased to permitthe petitioner to examine the sole independent witness cited in thelist of witnesses placed before the court. 2. The petitioner is the first accused in a case launchedagainst him for offences under sections 500, 501 and 502 of theIndian Penal Code. After questioning the accused under section 313of the Code of Criminal Procedure, the learned Judicial MagistrateVII, Coimbatore offered an opportunity to the accused to leadevidence on their side. At that stage, the first accused, who isthe petitioner herein, filed a list of witnesses to be examined as https://hcservices.ecourts.gov.in/hcservices/ defence witnesses. The learned Judicial Magistrate was pleased toreject the plea of the accused to examine the witnesses shown in thelist produced. 3. A revision in Crl.R.P.No.160 of 2000 was preferred by thefirst accused before the Court of Sessions. The said CriminalRevision Petition was taken on file by the District Judge, FastTrack Court III, Coimbatore who dismissed the said revision petitionon 19.12.2005. The first accused invoked the provision of section482 of the Code of Criminal Procedure by filing Crl.O.P.No.5412 of2006 before this court. This court was pleased to dismiss the saidpetition as withdrawn giving liberty to the learned counsel forpetitioner to take appropriate action in accordance with law. 4. Thereafter, the petitioner herein filed Crl.O.P.No.7853 of2007 under sections 254 and 311 of the Code of Criminal Procedureseeking permission for the petitioner to examine as many as sixwitnesses on his side as defence witnesses. 5. By the impugned order, the learned Judicial Magistrate VII,Coimbatore directed the petitioner to examine the only independentwitness cited by the petitioner as defence witness. But, thelearned Judicial Magistrate was pleased to reject the plea of thepetitioner to examine the other five accused viz., A3 to A7 in thiscase on his side as defence witnesses. 6. The learned Judicial Magistrate was pleased to dismiss theplea of the petitioner to examine the co-accused on the main groundthat request in writing should have emanated from the accusedconcerned for subjecting himself as one of the defence witnesses.As no such written request emanated from any of those accused, thelearned Judicial Magistrate has come to the conclusion that thepetitioner is not entitled to examine the co-accused as defencewitnesses. So saying, the learned Judicial Magistrate rejected theplea of the petitioner to examine A3 to A7 on his side. 7. The only point that arises for consideration is whether anaccused in a case can examine a co-accused without a request inwriting emanated from him and whether the court which tookcognizance of the list of witnesses submitted by an accused canascertain from the co-accused as to whether he is prepared to giveevidence as a witness on the side of the co-accused. 8. Learned counsel appearing for the petitioner, referring toArticle 20(3) of the Constitution of India, would submit that theembargo found in Article 20(3) would apply only in a case where anaccused was compelled to be a witness against himself. Here is acase where an accused has desired to examine the co-accused asdefence witnesses. Therefore, the bar under Article 20(3) of the https://hcservices.ecourts.gov.in/hcservices/ Constitution of India does not apply to the plea of the petitionerto examine the co-accused as defence witnesses to disprove thecharges levelled against him. The learned counsel for thepetitioner, referring to section 315 of the Code of CriminalProcedure, would contend that the scope of section 315(1)(a) of theCode of Criminal Procedure will have to be expanded to accommodatethe plea of an accused to examine a co-accused as defence witnessafter ascertaining the willingness of the co-accused cited as awitness. It is his further submission that the learned JudicialMagistrate, in the interest of justice, having gone through the listof witnesses, should have ascertained the willingness or otherwiseof the co-accused who were cited as witnesses to defend thepetitioner herein. He would lastly submit that though section 315(1)(a) of the Code of Criminal Procedure mandates that before everan accused is examined as a defence witness, a request in writingshould emanate from him, considering the fact that accused 3 to 7are the persons who passed on the information for publication to thefirst accused herein, the scope of section 315(1)(a) of the Code ofCriminal Procedure may be expanded to accommodate the plea of thepetitioner, as otherwise, the petitioner will lose an opportunity todisprove the charges levelled against him. 9. Learned Senior Counsel appearing for the secondrespondent/complainant, supporting the decision of the learnedJudicial Magistrate, would contend that inasmuch as there is a clearbar to examine a co-accused as a competent witness even on the sideof the defence without any request in writing from him, the courthas no power to expand the mandatory provision adumbrated undersection 315(1)(a) of the Code of Criminal Procedure. He wouldfurther submit that the court has no authority to ascertain a co-accused as to whether he was willing to be cited as a defencewitness inasmuch as the provision under section 315(1)(a) of theCode of Criminal Procedure is crystal clear that such a request inwriting should emanate from the accused himself. It is hissubmission that the Trial Court has rightly dismissed theapplication seeking permission to examine the co-accused in thiscase as defence witnesses. 10. As rightly pointed out by the learned counsel for thepetitioner, Article 20(3) of the Constitution of India imposes arestriction to examine an accused by the prosecution to prove thecharges against him. Here in this case, the first accused, who isthe petitioner has cited A3 to A7 as witnesses to disprove thecharges levelled against him. Therefore, this is not a case wherean accused is compelled to give evidence as against himself. 11. The court will have to see whether the petitioner being oneof the accused in this case can canvass for examination of theother accused on his side to disprove the charges levelled against https://hcservices.ecourts.gov.in/hcservices/ him. As per section 315(1)(a) of the Code of Criminal Procedure, anaccused can give evidence on oath in disproof of the charges madenot only against him but also against the other accused in the sametrial. But, the proviso found therein would read that such anaccused shall not be called as a witness except on his own requestin writing. The aforesaid proviso to section 315 makes itabundantly clear that before ever an accused comes to the box todisprove a charge before the court, he should have made a request inwriting to the court. Such a safeguard has been made under section315 of the Code of Criminal Procedure to save the accused from theembarrassment of facing any incriminating question put to him.Further, no accused can be compelled to give evidence to disprovethe charges made either against him or against the co-accused in thetrial. It is not the duty of the Trial Court to ascertain thewillingness or otherwise of the accused to enter into the box fordeposing in favour of the co-accused especially when the provisounder section 315 is quite clear that the accused himself shouldcome out with a request in writing to subject himself forexamination. It is out of the scope of the trial court to ascertainthe view of the accused concerned as to his willingness to deposebefore the court. If at all, the co-accused cited by the petitionerherein are willing to depose on behalf of the petitioner herein, itis left to them to come out with a petition in writing seekingpermission of the court to examine them as witnesses in this case. 12. It is made clear that the petitioner herein cannot makesuch a request to the Trial Court in the absence of any request inwriting from the co-accused to examine them on his side. There is noillegality in the order passed by the Trial Court declining toaccede to the request of the petitioner to examine the co-accused onhis side. The Trial Court has rightly rejected the plea of thepetitioner, taking inspiration from the mandatory provision undersection 315 of the Code of Criminal Procedure, to examine the co-accused as witnesses on the side of the petitioner. There is nowarrant for interference with the impugned order passed by the TrialCourt. The petition, therefore, stands dismissed. Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.ssk. https://hcservices.ecourts.gov.in/hcservices/ To1. Judicial Magistrate VII, Coimbatore. 2. Do Thro The Chief Judicial MagistrateCoimbatore1 cc to Mr.P.T. Perumal, Advocate, sR. 18351 cc to Mr.L. Mahendran, Advocate, Sr. 1339Crl.R.C.No.1449/2007MA (CO)kk 21/1