Janet vs State of Kerala and Others

L. Manoharan, J.—Petition is u/s 482 of the Code of Criminal Procedure.

P.W. 1 in Sessions Case No. 83/92 pending trial before the 1st Additional Sessions Court, Thiruvananthapuram is the Petitioner. The Petitioner seeks to quash Annexure-A order in the said Sessions Case dispensing with the examination of C.Ws. 2, 3, 5 and 13; and to issue direction to take steps for securing the presence of charge witnesses 2, 3 and 5 in the said Sessions Case.

Final report in the said case was laid under Sections 143, 147, 148, 323 and 302 read with Section 149 I.P.C. against 23 accused persons on the allegation that at about 11.30 p.m. on 13th August 1989 near Shanghumugham Palace at Thiruvananthapuram, the accused persons formed themselves into an unlawful assembly with the common object of committing murder of the Petitioner''s husband Philip Rozario and in prosecution of the said common object they did commit murder of the said Philip Rozario by beating him with iron rods, sticks etc. In the charge sheet, C.Ws. 2, 3, 4 and 5 are cited as occurrence witnesses. The case was posted for trial to 18th January 1993, but since the counsel for accused 1 to 6 was not doing well, the case was adjourned to 23rd February 1993. On 21st January 1993 the Public Prosecutor filed a memo containing the present address of C.Ws. 2, 3 and 5, who are employed in Soudi Arabia. On 23rd February 1993 P.W. 1 also filed a petition to issue summons to C.Ws. 2, 3 and 5 in their present address. According to the Petitioner, the said petition was necessitated as no summons was issued to the said witnesses even though the address of the said witnesses were furnished by the memo of Public Prosecutor dated 21st January 1993. It is alleged that, the Investigating Officer also filed a memo to issue summons to the said witnesses.

Annexure-A order contains the proceedings on 26th February 1993, 27th February 1993 and also 1st March 1993. On 1st March 1993, the court passed the order dispensing with the examination of C.Ws. 2, 3, 5 and 13. The reasons stated in Annexure-A order are that the Public Prosecutor failed to file a report as to the correctness of the address furnished, there would be undue delay and expenses to summon the said witnesses, and that the same would cause prejudice to the accused persons.

The learned Public Prosecutor also supported the Petitioner and contended, the order of the learned Sessions Judge is illegal and that examination of the said witnesses is necessary for the proper and fair disposal of the case.

The learned Counsel for the Petitioner assailed the order of the learned Sessions Judge contending that it was the duty of the court to summon the said witnesses, particularly, when the Public Prosecutor had furnished the present address of the said occurrence witnesses. This petition mentions the present address of the said witnesses. In the circumstance, it is pointed out by the learned Counsel, with due regard to the time of occurrence and also the number of accused, it is necessary that these witnesses are examined and according to the learned Counsel, withholding of the examination of the said occurrence witnesses is illegal, as it is not in the interest of justice.

These witnesses are material witnesses admits of no doubt. In the decision in Habeeb Mohammad Vs. The State of Hyderabad, , it is held that it is the bounden duty of the prosecution to examine a material witness, particularly, when there was no allegation that he would not speak the truth. The decision proceeds to hold that, in appropriate cases non-examination of material witnesses would invite adverse inference against the prosecution case as per illustration (g) to Section 114 of the Evidence Act. In the decision in Narain and Others Vs. The State of Punjab, , the Supreme Court observed as to who is a material witness: "The test is whether the examination of such witness is essential to the unfolding of the narrative on which the prosecution is based." From the nature of the case alleged against the accused persons these witnesses being occurrence witnesses there could be no doubt, that they are material witnesses. Then it behoves on the prosecution to examine the said witnesses. Here, the prosecution was every willing to have the said witnesses examined. In the charge-sheet itself there was a prayer to issue summons to those witnesses and the learned Public Prosecutor had filed a memo furnishing the present address of the witnesses also. It is necessary to note that in a Sessions trial the presiding Judge has also a duty to see that the material witnesses are examined. In the decision in Ram Prasad and Others Vs. The State of U.P., the Supreme Court alerted: "It is as much the duty of the Prosecutor as of the Court to ensure that full and material facts are brought on record so that there might not be miscarriage of justice." In the decision in Ram Chander Vs. State of Haryana, , the Supreme Court observed:

The adversary system of trial being what it is there is an unfortunate tendency for a Judge presiding over a trial to assume the role of a referee or an umpire and to allow the trial to develop into a contest between the prosecution and the defence with the inevitable distortions flowing from combative and competitive elements altering the trial procedure. If a Criminal Court is to be an effective instrument in dispensing justice, the presiding Judge must cease to be a spectator and a mere recording machine. He must become a participant in the trial by evincing intelligent active interest by putting questions to witnesses in order to ascertain the truth.

In the decision in Jamatraj Kewalji Govani v. State of Maharashtra, the Supreme Court with reference to Section 540 of the old Code which corresponds to Section 311 of the present Code; and also Section 165 of the Evidence Act observed:

As the section stands there is no limitation on the power of the Court arising from the stage to which the trial may have reached, provided the Court is bona fide of the opinion that for the just decision of the case, the step must be taken. It is clear that the requirement of just decision of the case does not limit the action to something in the interest of the accused only. The action may equally benefit the prosecution.

(Emphasis added).

Now the reason that prevailed with the learned Sessions Judge to come to the conclusion that the said occurrence witnesses need not be examined has to be adverted. It is observed by him: "It is worthy to note that the Prosecutor even now does not say definitely as to whether they want to examine C.Ws. 2, 3, 5 and 13 at all and submits that she cannot say when she will be able to furnish the clear and complete address of those witnesses at gulf." Another observation of the learned Sessions Judge is: "Prosecutor is also not asserting even, now that she wants to have C.Ws. 2, 3, 5 and 13 to be examined. The attempt of the Prosecutor, it appears is to have the examination of C.Ws. 2, 3, 5 and 13 to be dispensed with by this Court rather than she herself giving up those witnesses" in view of the petition filed by P.W. 1 on 23rd February 1993 to have, C.Ws. 2, 3 and 5 summoned for examination." Then, if the conclusion reached by the learned Judge is any guide, the learned Judge neatly fell into the mould cast for him by the Prosecutor. But no such adverse assumption against the Prosecutor is possible.

The prosecution clearly demonstrated its persistence to examine these witnesses; there was a prayer already in the charge-sheet to issue summons to these witnesses which was followed by the Prosecutor by filing memo furnishing present address of the occurrence witnesses. At no stage the Prosecutor reported that the said witnesses need not be examined. When that was the position, all that should have weighed with the court was whether these witnesses are material witnesses. Once the answer is in the affirmative, it was the clear duty of the learned Judge to issue Summons to the witnesses. In one portion of the order the learned Sessions Judge states that the Prosecutor is unable to submit as to "what is the manner of service required and how the witnesses could be compelled to appear before Court." Of course, the Prosecutor has to help the court.

In the decision in Chathu v. Gopalan 1981 KLT 103, adverting to the method of service of summons when the person to be summoned is outside India it is observed among other things:

The officers working in the Indian Embassy in abroad are certainly public servants for the purpose of the Criminal Procedure Code. In contingencies contemplated by the second part of Section 65, there is no difficulty or disability for the Court to seek the assistance of such public servants in serving summons.

As regards the alleged prejudice for the accused persons, it has to be noted that, all the accused persons are admittedly on bail, trial of the case was scheduled to start only on 18th January 1993 and the case had to be adjourned from that date at the instance of the accused. As per Section 309 Code of Criminal Procedure the court has got jurisdiction to adjourn the case. But such adjournment should be only on strongest possible ground and also for shortest possible period.

An adjournment for the examination of a material witnesses in relation to a criminal case is a valid ground. What is significant to be noted is the learned Sessions Judge came to the conclusion that it is not feasible in the circumstance to examine these witnesses even without issuing summons once in the address submitted by the Public Prosecutor. The only objection seems to be that the said address was given to the Public Prosecutor by P.W. 1. It should be noted that P.W. 1 being the widow of the deceased naturally would be interested in seeing that these witnesses are examined; and when the Public Prosecutor submitted the same that could have been only after satisfying as to the correctness of the address; and in the circumstance, the Court need not have doubted its correctness. The grounds stated by the learned Sessions Judge is wholly untenable for not issuing the summons. It should be noted that the very spirit of Section 311 Code of Criminal Procedure and Section 165 of the Evidence Act is to arm the Judge presiding a criminal trial in his pursuit to find out the truth. It was not at all appropriate in the circumstance, for the court to have refused to issue summons.

The learned Counsel for the accused persons contended that, this petition itself is not maintainable inasmuch as a person like the Petitioner is riot entitled to move this Court.

It should be noted that this is a proceeding u/s 482 Code of Criminal Procedure The inherent power of the court under the said section can be exercised to give effect to any order passed under the code, or to prevent abuse of process of court or otherwise to secure the ends of justice. Whenever an illegality is brought to the notice of the court, the court has to act u/s 482 Code of Criminal Procedure to correct the illegality so as to secure the ends of justice. The only function of this petition being to bring to the notice of the court as to an illegality, its competence cannot be doubted. May be, the petition moved by the Petitioner before the lower court for issue of summons to the witnesses is not maintainable. That is no reason to hold that the Petitioner cannot bring to the notice of this Court u/s 482 Code of Criminal Procedure an illegality committed by the lower court. Under Sections 401 and 482 Code of Criminal Procedure this Court can act even suo motu. The question of locus standi need not affect the right of a person like the Petitioner, who is none-else than the widow of the deceased to move this Court u/s 482 Code of Criminal Procedure. She is not a way-farer. The locus standi should be examined with due regard, to the status of the Petitioner as well as the nature of the proceeding.

In the decision in Janata Dal Vs. H.S. Chowdhary and Others, , with respect to locus standi it is observed that mere busybodies, meddlesome interlopers, way-farers or officious interveners without an interest was concerned except for, personal gain or private profit or political motive or any oblique consideration cannot be allowed to abuse the process of Court and hold that "However, only a person acting bona fide and having sufficient interest in the proceeding of PEL will have a locus standi and can approach the court for the poor and needy suffering from violation of their fundamental rights" and with respect to the power u/s 482 Code of Criminal Procedure, the Supreme Court observed that "The criminal courts are clothed with inherent power to make such orders as may be necessary for the ends of justice. Such power though unrestricted and undefined should not be capriciously or arbitrarily exercised, but should be exercised in appropriate cases, ex debito justitiae to do real and substantial justice for the administration of which alone the courts exist. The powers possessed by the High Court u/s 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Courts must be careful to see that its decision in exercise of this power is based on sound principles." Thus Court has power in appropriate cases to correct the illegality or irregularity committed by the subordinate courts.

The learned Counsel for the accused relied on the decision of the Supreme Court in Simranjit Singh Mann Vs. Union of India and another, , in support of his contention that the Petitioner has no locus standi to file such a petition. In that case a total stranger wanted to challenge the conviction of a party; the Supreme Court held that a total stranger cannot challenge the conviction, and sentence in a petition under Article 32 of the Constitution. That decision has no application to a proceeding of this nature u/s 482 Code of Criminal Procedure. As noticed, this petition is by the widow of the deceased, who is also P.W. 1 in the case, and the purpose of the petition, in the circumstance, is to bring to the notice of the court an illegality in the trial of the case.

The learned Counsel for the accused also contended that the Petitioner being not an aggrieved party is not entitled to file this petition. Reference was made by the learned Counsel to the meaning given to ''Aggrieved'' at Page 47 of the Law Lexicon of British India by P. Ramanatha Aiyar, 1940 Edition, where it is stated that", a person ''aggrieved'' must be a roan who has suffered a legal grievance, a man against when a decision has been pronounced which has wrongfully deprived him of something or wrongfully refused him something or wrongfully affected his title to something."

In the context of Section 482 Code of Criminal Procedure it cannot be said that the Petitioner who is P.W. 1 in the case and the widow of the deceased in the case is a wayfarer or a person who is not interested in the proceeding; and as noticed, the vary function of this petition is to bring to the notice of the court as to an illegality committed by the learned Session Judge. In the circumstance, it cannot be said that for invoking Section 482 Code of Criminal Procedure, the Petitioner should be one against whom a decision has been pronounced. The irregularity and illegality committed by the Sessions Judge in relation to the trial is such that this Court has no option but to interfere and quash the order of the learned Judge to the extent it dispenses with the examination of C.Ws. 2, 3 and 5.

In the result, the impugned order is quashed to the said extent, and the learned Sessions Judge is directed to issue summons to the said witnesses and proceed with the trial in accordance with law. It is necessary in the circumstance, that the trial is expedited; and the trial will be completed after taking the steps as indicated above within a period of three months from the date of receipt of the copy of this order.

The Crl. M. C. is allowed as indicated above.