Ramakrishna Gochhikar and Another vs Gadadhar Pujapanda

Das, J.—The accused persons are the Petitioners. The revision arises under the following circumstances:

A complaint was filed on 11-11-1963 under Sections 323, 324/31, Indian Penal Code. Cognizance was taken on the same date, and the case was posted to 16-12-1963 for appearance of the accused. Some of the prosecution witnesses were examined and cross-examined before charge on 5-5-1964 and 5-6-1904. A charge was framed on 22-11-1964. On 12-9-1964 the accused was examined u/s 342 and 31-12-1964 was fixed for the defence. In -the meanwhile on 21-12-1964 the Petitioners filed an application u/s 257, Code of Criminal Procedure for summoning the prosecution witnesses for further cross-examination and the Magistrate directed the petition to be put up on 4-1-1965 for consideration. On that day he allowed the petition of the accused and directed the prosecution witnesses to be summoned for cross-examination on 27-1-1965 and the accused persons were directed to deposit the cost of the witnesses. As against this order, the complainant filed a revision petition (Criminal Revision No. 4/65) before the Additional District Magistrate, Puri The Additional District Magistrate (Judicial), Puri, after hearing the learned Counsel for the parties disposed of the application saying:

As I find the petition of the accused dated 21-12-1964 is to examine the prosecution witnesses as defence witnesses for which there can be no objection. The record is sent back for examining the prosecution witnesses as defense witnesses to which the learned lawyer for the opposite party Sri G.K. Misra has no objection.

The trial Court was not in a position to understand the implication of the order of the Additional District Magistrate as to what he meant by saying that the prosecution witnesses be examined as defence witnesses and he sought for clarification of the said order as appears from the order-sheet dated 25-2-16 and letter No. 95 dated 5-2-1965 addressed to the Additional District Magistrate. The Additional District Magistrate in his reply said that the Magistrate may proceed according to law and no further instructions can be given by his Court. On 23-3-1965 the accused persons again represented to the Court that in view of the previous order of the Magistrate allowing their petition u/s 257, the witnesses should be summoned as prosecution witnesses and not as defence witnesses. The Magistrate rejected the prayer of the accused to summon the witnesses a prosecution witnesses, obviously because the learned Counsel for the accused conceded before the Additional District Magistrate that these witnesses will be examined as defence witnesses and that in the petition dated 21-11-1964 the accused wanted to examine the prosecution witnesses as defence witnesses. The accused persons refused to examine the prosecution witnesses as defence witnesses. The Court fixed 3-4-1965 for defence. On 3-4-1965 the accused filed a petition praying for time to bring a stay order from the High Court. The Court gave time till 20-4-1905. On 20-4-1905 another petition was filed saying that the revision has been admitted in the High Court and the stay order was expected to be received within a few days. The Court again adjourned the case to 30-4-1965 and as no such stay order was received, he fixed 11-5-1965 for defence. On that date, the defence lawyer filed a petition praying for time to examine witnesses. The Court fixed 26-5-1965 for defence saying that no further time will be allowed. On 26-5-1965 the defence instead of examining any witness, filed a petition for time saying that they want to transfer the case to some other Court. The Court granted an adjournment till 15-6-1965. On 5-6-1965, the Subdivisional Magistrate withdrew the case to his own file. As no defence witnesses were there, he closed the case and fixed 22-6-165 for argument. The accused persons again filed a petition before him to cross-examine the prosecution witnesses u/s 257, Criminal Procedure Code. The learned Magistrate rejected the petition. Hence this revision by the accused persons.

There is no dispute over the fact that the trial relates to an warrant case instituted on a private complaint. In such cases the accused has three opportunities available to him to cross-examine the prosecution witnesses: (i) At the first instance when the prosecution witnesses were examined u/s 252(1) and before a charge is framed; (ii) After the charge is framed, the accused gets a second opportunity under (Section 256 when such prosecution witnesses as are required by the accused to be recalled for purposes of cross. examination and re-examination if any, and they shall then be discharged. The remaining witnesses for the prosecution shall next be examined, cross-examined and also be discharged. The accused shall then be caned upon to enter upon his defence and produce his evidence. As a general rule the cross-examination of a witness is to be made immediately after his examination-in-chief, but exception to the general rule has been made in cases of trial of warrant cases where the accused is entitled to defer the examination until after the framing of the charge. This right to cross-examine a witness after charge is framed is an absolute right and the omission to give the accused the benefit of that right would vitiate the whole proceeding and the fact that the witnesses were once cross-examined by the accused before the charge is of no avail. As is clear from the provisions of Section 256, after the examination and cross-examination of the prosecution witnesses the accused shall then be called upon to enter upon his defence. Then comes (iii) the third stage when Section 257 comes into play. Section 257 lays down the procedure for issue of process for compelling the production of evidence at the instance of the accused for the purpose of his defence. Under the provisions of that section the Magistrate has a duty to issue process to compel the attendance of witnesses named by the accused except where the Court considers that the object for asking such process is to cause vexation, delay or to defeat the ends of justice. The proviso to Section 257, however, makes it clear that where the accused had cross-examined or had the opportunity of cross-examining any witnesses shall be compelled under the section unless the Magistrate is satisfied that it is necessary for the ends of justice that such process should be issued. Thus, the accused in such cases has no absolute and an unfettered right to ask the Court to summon the prosecution witnesses for cross-examination as u/s 256, Criminal Procedure Code. The Court, however, is left with a discretion whether to issue process or not in respect of witnesses when the accused cross-examined or had the opportunity to cross-examine. In the present case, it is not disputed that the, prosecution witnesses were cross-examined before and after the charge. The only grievance of the accused is that they could not furnish necessary materials to their counsel for effective cross-examination of the prosecution witnesses. At one stage, the trial Court conceded to that request and permitted them to summon the prosecution witnesses at the cost of the accused. The complainant however, challenged this order of the Magistrate permitting the accused to cross-examine the prosecution witnesses u/s 257, Criminal Procedure Code, before the Additional District Magistrate (Judicial). As appears from the order of the Additional District Magistrate (Judicial) he also endorsed the view taken by the trial Court for issuing process against the prosecution witnesses for examination by the defence as would appear from the order referred to above. The learned Additional District Magistrate read the petition of the accused dated 2l-1-1964 as one where the accused persons wanted to examine the prosecution witnesses already cross-examined as offence witnesses. The learned Counsel for the defence appears have accepted that position before the Additional District Magistrate. When the records were sent to the Court, the accused persons however insisted those witnesses should be summoned as prosecution witnesses and thus refused to take further steps in the matter and took several adjournments on one ground or other. In the eye of law it makes no difference whether they are summoned in one way or the other, so far as the nature of their evidence is concerned. When a prosecution is resummoned u/s 257 at the instance of the accused, he does not thereby lose his character as a prosecution witness. The mere fact also that the accused was compelled to treat the prosecution witnesses as his own, will not make any change in the legal position for the purpose of Section 257 (See Sheo Prakash Singh and Ors. v. W.D. Rawling ILR Cat 599. This view of the Calcutta High Court was followed by the Madras High Court in K. Venku Reddy v. Emperor 23 Cr.L.J. 92 (Mad.).

It is clear from the records that in spite of repeated opportunities given to the accused-Petitioners, they did not avail of the same to summon those prosecution witnesses whom they wanted to cross-examine and took adjournments times without number on various pleas.. At one stage as appears from the order-sheet dated 3-4-1955, the accused prayed for time to bring stay order from the High Court and from the order-sheet dated 20-4-1905, it appears that it was represented to the Court that the Revision had been admitted by the High Court and the stay order would be received within a few days. When no such order was received by the Court, he fixed 11-5-1965 for defence. The case after having been adjourned for several dates, the accused filed a petition to get the case transferred from the trial court. When the case was withdrawn by the Sub-Divisional Magistrate to his file, the Petitioners again filed an application u/s 257 and the Magistrate in a very clear and well-reasoned order refused to exercise jurisdiction u/s 257, Criminal Procedure Code. Even after the rejection of the petition by the Sub-Divisional Magistrate, the Petitioners took several adjournments from the Court for obtaining stay order from the High Court. In view of this attitude of the Petitioners, it was rightly contended by the learned Counsel for the opposite party that the accused persons were unnecessarily delaying the proceedings and if they really wanted to cross-examine some prosecution witnesses, they could have availed of the opportunity given to them on various occasions. As appears from the order-sheet, large number of adjournments have unnecessarily been taken by the Petitioners without taking steps for attendance of witness. It is needless to say that in every trial the parties must lend full co-operation to the Court so that there be no injustice to a particular party. In this connection, I may refer to a passage in a decision of the Privy Council in Vassiliades v. Vassiliades and Anr. AIR 1945 P.C. 38 where Lord Wright observed that no doubt Cross-examination is one of the most important processes for the elucidation of the facts of a case and all reasonable attitude should be allowed, but the Judge has always a discretion as to how far it may go or how long it may continue. It is matter of public policy that justice should not merely be done but should appear to be done. It was further observed:

Judges, however, are only human, and their patience is sometimes sorely tried by counsel and litigants. It is always to be regretted if their patience even appears to give way. But the administration of justice depends on the co-operation of the Judges and parties. Parties cannot complain whose improper or unreasonable conduct has led to a departure from the most regular course of procedure, so long as no substantial injustice is done.

In view of the discussions made above, I am of the view that there is no justification to interfere with the order passed by the learned Magistrate.

As more than two years have already passed since the initiation of the proceeding, the Magistrate may now expedite the hearing of the case preferably within three months.