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1995 DIGILAW 536 (MAD)

S. Rathinasamy v. The Judicial Magistrate, Erode

1995-07-10

ARUNA JAGADEESAN

body1995
Judgment : The second respondent herein has filed a criminal complaint against the petitioner under the Negotiable Instruments Act. Since the cheque given by the petitioner was dishonoured, the case is pending before Judicial Magistrate, No.II, Erode, Periyar District in C.C.No. 23/95. The petitioner has filed C.M.P. 2105/95 seeking permission to examine two more witnesses and the Handwriting Expert. The trial Magistrate by his order dated 25. 95 has dismissed the petition on the ground that there is no bona fide on filing the petition and the intention of the petitioner is only to dela and protract the proceedings. The petitioner has filed the present writ petition to call for the records from the Judicial Magistrate, No.II, Erode and to quash the order in C.M.P.No. 2105/95 dated 25. 95 in C.C.23/95. 2. The learned counsel for the petitioner submits that the petitioner had been deprived of his right to let in evidence and this would violate his fundamental right to have effective opportunity to prove his case. By rejecting the request of the petitioner to let in further evidence, his right of being beared is negatived and hence the writ petition is maintainable under Article 226 of the Constitution of India. As the fundamental right of the petitioner to let in evidence has been deprived by the order of the Magistrate, the petitioner is entitled to move the Supreme Court under Article 32 of the Constitution of India and since the petitioner is poor and cannot met the expenses to go to Supreme Court, he has filed the present writ petition before this court. 3. The order of the Magistrate in C.M.P.No.2105/95 in C.C.No.23/95 dismissing the application filed by the petitioner seeking permission to adduce additional evidence is a judicial order. The procedure of letting in evidence by the accused for defence is governed by Section 243 of the Code of Criminal Procedure. Section 243 of the Code of Criminal Procedure runs as follows:- “243. Evidence for defence.- .(1) 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. Section 243 of the Code of Criminal Procedure runs as follows:- “243. Evidence for defence.- .(1) 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. .(2) 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 writting; Provided that, when the accused has cross-examined or had the opportunity of cross-examining any witness before entering on his defence, the attendence of such witness shall not be compelled under this section, unless the Magistrate is satisfied that it is necessary for the ends of justice. .(3) The Magistrate may, before summoning any witness on an application under subsection (2) require that the reasonable expenses incurred by the witness in attending for the purposes of the trial be deposited in court. A reading of Section 243(2) C.P.C. would clearly show that if the accused applies to the Magistrate for issue of 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. So it is open to the Magistrate to decide the nature of the application in relation to the conduct of the accused and pass orders as to permitting the additional evidence or rejecting the same and in this case the lower court has given reasons for rejecting the same. Against such orders, criminal revision would lie under Section 397 read with 401 of Code of Criminal Procedure. Against such orders, criminal revision would lie under Section 397 read with 401 of Code of Criminal Procedure. When a remedy is provided under the special enactment, it is open to the petitioner to seek relief under the procedure laid down under the Code of Criminal Procedure. The relief under Article 226 of the Constitution of India is a discretionary one. Only the aggrieved persons who do not have effective alternative remedies can invoke the Special Original Jurisdiction of this court under Article 226 of the Constitution of India. When an effective alternate remedy is provided under the statute, unless the petitioner is able to prove that the alternative remedy is not as efficacious as that of Article 226 of the Constitution of India, this court need not entertain the writ petition under Article 226 of the Constitution of India. 4. It cannot be said that by rejecting the application, the petitioner’s fundamental right has been violated and his right of being heard has been negatived. As pointed out already. Section 243(2) Cr.P.C. clearly empowers the Magistrate to dismiss the application on certain grounds. Whatever the rights the petitioner may have, such rights are subject to the limitations prescribed under the statute. Hence it cannot be said that the petitioner has got absolute fundamental right to let in evidence as he like s at any point of time. 5. Section 397(2) Cr.P.C.prohibits the exercise of power under revision in relation to any interlocutory orders, so far as the present order is concerned, it cannot be said as an interlocutory order as it decides finally the right of the petitioner to let in evidence. In such cases the power of revision can be exercised by this court as well as by the Sessions Court. As the petitioner has got the right of revision as stated already, the writ petition is not maintainable. I am of the view that if such writ petitions are entertained then no one would seek the alternative relief as provided under the statute and the aggrieved person, as a routine course, would come to this court by invoking Article 226 of the Constitution of India. 6. For the reasons stated above, the writ petition is dismissed.