TTV Dhinakaran vs Assistant Director

Date,Event,Remarks

07.02.1996,Accused detained under COFEPOSA Act.,-

14.05.1996,Accused was produced before the trial court on Prisoner Transit Warrant.,-

25.06.1996,The complainant filed petition for cancellation of bail.,-

31.07.1996,Cancellation of bail was dismissed,-

31.07.1996,"Trial court ordered for posting the case, once in a week",-

08.08.1996,"Accused filed a petition with a prayer to direct the complainant to supply all statements, documents and

memos of evidence of each witnesses.",-

09.08.1996,Petition dismissed.,-

12.08.1996,P.W.1 examined in Chief.,-

27.11.1996,"High Court dismissed the revision petition which was filed by the accused challenging the dismissal order

dated 09.08.1996.",-

20.12.1996,SLP by the accused was dismissed,-

12.10.1997,"Accused filed application seeking direction to file supplementary report under Section 173 (2) and (8) of

the Cr.P.C.,",-

20.10.1997,The said application was dismissed,-

12.09.2008,"Revision Petition filed by the accused was dismissed, with direction to expedite the trial within a period

of six months.",-

,,

,,

04.02.2009 to

26.10.2010","P.Ws.1 to 12 examined in Chief. Summons issued to P.Ws.15, 16, 17, 19, 20, 22, 23, 24, 25 and 26

could not be served as the persons were not available in the addresses",-

23.12.2010,"Accused filed application to consolidated two complaints, in C.C.No.84 of 2001 and C.C.No.27/1996.",-

27.01.2011,Application was dismissed.,-

11.10.2011,Revision petition by the accused against the dismissal of the application was dismissed.,-

19.12.2013,Prosecution evidence closed,-

18.02.2014,Discharge petition was filed by the accused in C.C.No.27 of 1996.,-

--,Discharge petition was filed by the accused in C.C.No.84 of 2001.,-

--,Both discharge petitions were allowed by the trial court.,-

01.02.2017,"Both Revision Petitions filed challenging the order passed in the discharge petitions were allowed by the

High Court.",-

22.02.2017,The accused was directed to appear on 10.03.2017.,-

22.03.2017,"Accused filed application for adjournment for six weeks (to recall the order dated 01.02.2017, passed

in Crl.M.P.No.957 of 2015).",-

27.03.2017,The Application was dismissed,-

,Accused did not appear for the four hearings during March and April 2017.,-

19.04.2017,The trial court framed charges against the accused.,-

24.07.2017,"The High Court dismissed O.P., challenging framing of charges",-

--,"Criminal O.P.No.16261/2017 was filed by the accused regarding examination of P.Ws. and for

complete compliance of requirement of Section 246 (4) of the Cr.P.C.,",-

10.08.2017,The High Court granted time till 31.08.2017 for crossexamination of P.W.1 and not to seek further time.,-

--,"The accused moved SLP before the Supreme court challenging dismissal of the petition by the High

Court challenging the dismissal of the discharge petition.",-

--,The SLP was dismissed as withdrawn.,-

05.12.2017,Revision Petition filed challenging the dismissal of the petition seeking examination of defence witnesses.,-

address, present occupation and the manner to secure the witness, and",,

x) considering the reason that the failure of the petitioner/accused to submit the reason and explanation about how the witnesses,,

Mr.A.P.Kala and Mr. Rajiv Kumar, who did the Administrative work, but did not take part in investigation of this case, and",,

xi) considering the reason that the failure of the petitioner / accused to submit the reason and explanation about the witnesses,,

Mr.Mahesh Chandra Reddy, Mr. S.V.Jogeswara Rao, Mr.R.C.Mohan, Mr. K.E.B.Rangarajan, Mr.G.Sankara Narayanan, who did",,

not have direct participation in the investigation of this case, and",,

xii) considering the reason that the failure of the petitioner/accused to submit the reason and explanation for examining the witness,",,

Mr.H.Ameer who did not adduce either any evidence or action against the accused, and",,

xiii) considering the reason that the failure of the petitioner/accused to disclose the necessity of or relevancy of, and how been relied",,

upon, to examine the witnesses on the defence side, and",,

xiv) considering the reason that without submitting valid reasons and explanations, the petitioner/accused has filed this petition",,

vexatiously and with the aim to delay the conclusion of the trial of this case, and",,

Hence, this petition is liable to be dismissed and the point is decided accordingly.",,

In the result, this petition is dismissed.""",,

Whether those reasons can be considered as sufficient reasons or acceptable reasons to decline permission to the accused to examine those,,

witnesses as defence witnesses, is the issue to be considered.",,

It would be appropriate to quote the relevant provisions regarding the right of the accused to examine the defence witness.,,

12.1. Section 247 Cr.P.C. reads as under:,,

The accused shall then be called upon to enter upon his defence and produce his evidence; and the provisions of Section 243 shall",,

apply to the case.""",,

12.2. Section 243 Cr.P.C. also reads as under:,,

Evidence for defence:,,

The accused shall then be called upon to enter upon his defence and produce his evidence; and if the accused puts in any written,,

statement, the Magistrate shall file it with the record.",,

If the accused, after he has entered upon his defence, applies to the Magistrate to issue any process for compelling the attendance",,

of any witness for the purpose of examination or cross- examination, or the production of any document or other thing, the Magistrate",,

shall issue such. process unless he considers that such application should be refused on the ground that it is made for the purpose of,,

vexation or delay or for defeating the ends of justice and such ground shall be recorded by him in writing: Provided that, when the",,

accused has crossexamined or had the opportunity of cross- examining any witness before entering on his defence, the attendance of",,

such witness shall not be compelled under this section, unless the Magistrate is satisfied that it is necessary for the ends of justice.",,

The Magistrate may, before summoning any witness on an application under sub- section (2), require that the reasonable expenses",,

incurred by the witness in attending for the purposes of the trial be deposited in Court. B.- Cases instituted otherwise than on police,,

report.""",,

The Code of Criminal Procedure, 1973 provides a comprehensive mechanism to conduct trials before the Courts by different methods. This",,

mechanism achieves solemn object of fair trial to the accused as well as to the prosecution. In fact the object of the Code is to ensure that an,,

accused person gets a full and fair trial along certain well established and well-understood lines that accord with our notion of natural justice.,,

Throughout the web of Criminal Justice System of this country, golden thread is fair trial to accused, because cardinal Rule of Criminal Law, we",,

follow is, each accused must be considered innocent till his guilt is established. Whatever be the merits of the case or whatever be the consequent",,

result of the trial, the pious duty of the Court conducting the trial is to adhere strictly to the provisions of law ensuring fair trial.",,

The learned counsel appearing for the petitioner submitted that the learned Magistrate has passed an order by posing five questions, which are",,

irrelevant under Section 243 (2) of the Cr.P.C., and the only question that is relevant is, whether the intention of the accused was to delay the",,

proceedings. The main contention raised is that if the right of the petitioner to examine the defence witness is declined, it would amount to violation",,

of Article 21 of the Constitution of India and a serious prejudice would be caused to the petitioner, thus there is a risk of entire proceedings being",,

vitiated.,,

14.1. The following judgments are relied upon by the learned counsel appearing for the petitioner, in order to support the proposition",,

that the statutory right of the accused to examine defence witnesses cannot be curtailed, except on the exceptions mentioned under",,

Section 243(2) of Cr.P.C.:-,,

(i) 1954 Crl.L.J. 1161 [Ronald Wood Mathams and others vs. State of W.B]:,,

10...It must be conceded that the evidence on record tends to establish a strong case against the appellants. But then, that is a case",,

which they are entitled to rebut, and if, as was held by the Federal Court, Exhibit 27 series would furnish good material for rebutting",,

that case, the Court, by declining to issue process for the examination of the witnesses connected with those documents, has deprived",,

the appellants of an opportunity of rebutting it.""",,

(ii) 2008 (5) SCC 633 [T.Nagappa vs. Y.R.Muralidhar]:,,

9.What should be the nature of evidence is not a matter which should be left only to the discretion of the Court. It is the accused",,

who knows how to prove his defence. It is true that the court being the master of the proceedings must determine as to whether the,,

application filed by the accused in terms of subsection (2) of Section 243 of the Code is bona fide or not or whether thereby he,,

intends to bring on record a relevant material. But ordinarily an accused should be allowed to approach the court for obtaining its,,

assistance with regard to summoning of witnesses etc. If permitted to do so, steps therefor, however, must be taken within a limited",,

time. There cannot be any doubt whatsoever that the accused should not be allowed to unnecessarily protracting the trial or summon,,

witnesses whose evidence would not be at all relevant.""",,

(iii) 2004 (1) SCC 414 [Banti @ Guddu vs. State of M.P.]:,,

13.When the case reaches the stage envisaged in Section 231 of Code the Sessions Judge is obliged ""to take all such evidence as",,

may be produced in support of the prosecution"". It is clear form the said section that the Public Prosecutor is expected to produce",,

evidence ""in support of the prosecution"" and not in derogation of the persecution case. At the said stage the Public Prosecutor would",,

be in a position to take a decision as to which among the persons cited are to be examined. If there are too many witnesses on the,,

same point the Public Prosecutor is at liberty to choose two or some among them alone so that the time of the Court can be saved,,

form repetition depositions on the same factual aspects. That principle applies when there are too many witnesses cited, if they all had",,

sustained injuries at the occurrence. The Public Prosecutor in such cases is not obliged to examine all the injured witnesses. If he is,,

satisfied by examining any two or three of them, it is open to him to inform the Court that he does not propose to examine the",,

remaining persons in that category. This will help not only the prosecution in relieving itself of the strain of adducing repetitive evidence,,

on the same point but also help the Court considerably in lessening the workload. Time has come to make every effort possible to,,

lessen the workload, particularly those courts crammed with cases, but without impairing the cause of justice.""",,

14.2. From this decision, it is clear that while the Public Prosecutor has the freedom to pick and choose witnesses, provided those",,

witnesses are speaking about the same fact. But at the same time, the Public Prosecutor has a duty to be fair to the Court in bringing",,

out the truth.,,

(iv) 2013 (14) SCC 434 [Rohtash Kumar vs. State of Haryana],,

In Masalti v. State of U.P., AIR 1965 SC 202, this Court held that it would be unsound to lay down as a general rule, that every",,

witness must be examined, even though, the evidence provided by such witness may not be very material, or even if it is a known fact",,

that the said witness has either been won over or terrorised. ""In such cases, it is always open to the defence to examine such",,

witnesses as their own witnesses, and the court itself may also call upon such a witness in the interests of justice under Section 540",,

Cr.P.C.""",,

14.3. This decision is directly on the point canvassed by the learned counsel for the revision petitioner.,,

The learned counsel appearing for the petitioner pinpointed that the adjudication order has no relevance in criminal proceedings because, in the",,

adjudication proceedings strict rules of evidence will not apply, while the strict rules of evidence is fully applicable during trial proceedings before",,

the Criminal Court. Therefore, reference to adjudication proceedings by the prosecution is not relevant.",,

It is also emphasised that the revision filed against the discharge of the accused and the SLP filed are all proceedings pre-trial and they have,,

nothing to do with the proceedings during trial or examination of defence witnesses.,,

The followings are the questions considered by the Hon''ble Supreme Court in 2013 (14) SCC 434 (referred to supra):-,,

(i) Whether the prosecution must examine all witnesses - multiplication of witnesses? As a general rule, all witnesses must be called",,

upon to testify in the course of hearing of prosecution, but there is no obligation compelling Public Prosecutor to call upon all",,

witnesses available who can depose regarding the facts that the prosecution has to prove. Ultimately, it is the matter left to the",,

discretion of the Public Prosecutor. The Court cannot normally compel the prosecution to examine the witnesses, which the",,

prosecution does not chose to examine.,,

It would be unsound to lay down as a general rule that every witness must be examined, even though the evidence provided by such witness",,

may not be very material, or even if it is a known fact that the said witness has either been won over or terrorised. In such cases, it is always open",,

to the defence to examine such witnesses as their own witnesses, and the court itself may also call upon such witness in the interests of justice",,

under Section 540 Cr.P.C.,,

Therefore, the Trial Court is not justified in declining examination of defence witnesses. It is stated that witness K.M.Nair is dead and if it is",,

proved so, his name must be deleted from the witness list. So far as witness Mr.Raju of Malaysia is concerned, it is stated that his age is 100 and",,

therefore, he may not be in a position to give evidence and the learned counsel for the accused conceded that in that event, the defence would",,

dispense with the examination of that witness. Therefore, the name of Mr.Raju is deleted from the list of witnesses.",,

In respect of some of the witnesses, it is stated that the whereabouts are not known. Procedures have already been prescribed to secure the",,

witnesses and when the defence wants to examine those witnesses, it is for the defence to take out necessary steps to secure those witnesses.",,

The reason given by the Trial Court is that it is expected of the accused to state whether the witness is alive or not; whether the accused is,,

physically and mentally fit to adduce evidence are all far-fetched and as and when, summons are issued, only during service of summons, the",,

accused and the Court will be position to know the possibility of examining those witnesses. From the list of witnesses produced, it cannot be said",,

that those witnesses are irrelevant for the purpose of this case. When the prosecution alleges that some of the witnesses are not traceable, then it is",,

for the accused to find out whether there are any other method available to trace the accused and to take further steps within a reasonable time. If,,

during trial, if the Trial Court comes to the conclusion that inordinate time is taken to take steps, then it is open to the Trial Court to dispense with",,

the examination of that witness. At various stages, if the Court feels that deliberately the accused is dragging on the matter, it is open to the Court",,

to pass appropriate orders at appropriate stage. Instead of exercising at that point of time, the Court cannot shut the examination of witness itself at",,

the threshold. It is made clear that the accused shall not cause any delay in examination of witnesses as well as in taking steps to get the,,

examination of witnesses.,,

In the result, the Criminal Revision Petition is allowed, subject to the observations made hereinabove and the order dated 05.12.2017 passed by",,

the learned Additional Chief Metropolitan Magistrate (EO - II), Allikulam, Chennai in Crl.M.P.No.2756 of 2017 in EO.C.C.No.27 of 1996 is set",,

aside. Consequently, connected miscellaneous petitions are closed.",,