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2004 DIGILAW 229 (KAR)

B. M. ARIF v. BOSTON TEA (INDIA) LTD

2004-03-24

A.C.KABIN

body2004
A. C. KABBIN, J. ( 1 ) THE petitioner herein is the accused and the respondent, the complainant in C. C. No. 1853/2000 on the file of the jmfc (IV Court), Mangalore, registered for an offence punishable under Section 138 of negotiable Instruments Act. In that case, after the complainant's evidence was Over, and during the course of his examination under Section 313 of Cr. P. C. , the petitioner contended that the complainant company had taken from him deposit of Rs. 50,000/- and a, blank cheque as security and that angered by his act of not supporting the complainant company with regard to the action of Health officer against complainant- company for alleged adulteration of articles, the blank cheque has been filled up by the company and has been misused. He also expressed a desire to lead evidence in his defence. Thereafter, he filed an application on 21-11-2003 requesting the Court to issue summons to his witness G. M. Mustaffa. The ground for examination of that witness as urged by the accused-petitioner is that all along it had been his contention that blank cheque signed by him was obtained by the complainant-company as security for future supply of goods and that the said witness was present when the said blank cheque was handed over. ( 2 ) THE complainant-respondent objected to the prayer of the accused- petitioner on the ground that only after accused-petitioner was examined as a witness that he gets a right to seek issuance of summons for examination of a witness and that, therefore, when the accused had not offered to examine himself as a witness, he has no right to ask the Court to issue summons to his witness. ( 3 ) AFTER hearing the complainant and the accused the learned JMFC (IV Court), mangalore, passed an order on 27-11-2003 holding that the question of issuing summons to a defence witness under Section 254 (2) of Cr. P. C. arises only after the examination of the accused. In that view of the matter, he ordered that the application of the accused be kept in abeyance until the evidence of the accused. That order has been challenged by the accused in this petition filed under Section 482 of Cr. P. C. arises only after the examination of the accused. In that view of the matter, he ordered that the application of the accused be kept in abeyance until the evidence of the accused. That order has been challenged by the accused in this petition filed under Section 482 of Cr. P. C. on the ground that the accused cannot be compelled to examine himself as a witness and that there is no bar in the Code of Criminal procedure on examining a defence witness, before the accused offers to examine himself as a witness. ( 4 ) SRI P. P. Hegde, learned counsel for the petitioner points out that a clear stand had been taken by the accused-petitioner before the trial Court that a signed blank cheque had been obtained by the complainant from him as security for future supply of goods, which stand was reiterated by him in his statement under Section 313 of Cr. P. C. He further argues that when the accused petitioner had specifically showed in his statement that he would adduce defence evidence and reasons for examining this particular witness had been given in the application filed by him, the learned Magistrate was in error in holding that the accused has to examine himself as a first witness. In reply to this argument, it is argued by Sri N. D. Naveen, learned advocate, representing the respondent that the order of examination of the witnesses in civil cases requires examination of the plaintiff in the first instance and his witnesses thereafter and that likewise in a criminal case the accused has to be examined as first witness and only thereafter his witnesses can be examined. He submits that the learned Magistrate was, therefore, right in deferring issuance of witness summons, until the accused had been examined as a witness. ( 5 ) THE procedure stipulated for exami nation of witnesses in civil cases has a specific provision, i. e. , Rule 3a of Order XVIII of the CPC, which reads thus : 3a- Party to appear before other wit- when a party himself wishes to appear as a witness, he shall so appear before any other witness on his behalf has been examined, unless the Court for reasons to be recorded, permits him to appear as his own witness at a later stage. ( 6 ) THE Criminal Procedure Code does not contain such provision similar to Order xviii, Rule 3a of the CPC. The present case is a summons case. The procedure for trial of summons cases is provided in Chapter xx of Cr. P. C. Section 254 of the Cr. P. C. , which is relevant, reads as under : "254. Procedure when not convicted (1) If the Magistrate does not convict the accused under Section 252 or Section 253, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution, and also to hear the accused and take all such evidence as he produces in his defence. (2) The Magistrate may, if he thinks fit, on the application of the prosecution or the accused, issue a summons to any witness directing him to attend or to produce any document or other thing. (3) The Magistrate may, before summoning any witness on such application, require that the reasonable expenses of the witness incurred in attending for the purposes of the trial be deposited in the court. " ( 7 ) SECTION 243 of the Cr. P. C. . which provides procedure for evidence for defence in warrant cases instituted on a police report provides : that the accused shall then be called upon to enter upon his defence and produce his evidence. ( 8 ) SECTION 247 of the Cr. P. C. , which deals with defence evidence in warrant cases instituted otherwise than a police report also has similar procedure and provides that after closure of prosecution evidence after charge, and further evidence, the accused shall be called upon to enter upon his defence and produce his evidence. ( 9 ) SIMILAR provision is found in Section 233 which deals with adducing defence evidence in a sessions case. The question that would arise from a reading of the above provisions is as to whether while adducing defence evidence, the accused can be compelled to examine himself before examining any witness on his behalf. In this regard, section 315 (1) of the Cr. P. C. is relevant. It reads as under :"315. Accused person to be competent witness. The question that would arise from a reading of the above provisions is as to whether while adducing defence evidence, the accused can be compelled to examine himself before examining any witness on his behalf. In this regard, section 315 (1) of the Cr. P. C. is relevant. It reads as under :"315. Accused person to be competent witness. (1) Any person accused of an offence before a Criminal Court shall be a competent witness for the defence and may give evidence on oath in disproof of the charges made against him or any person charged together with him at the same trial: provided that (a) he shall not be called as a witness except on his own request in writing. (b) his failure to give evidence shall not be made the subject of any comment by any of the parties or the Court or give rise to any presumption against himself or any person charged together with him at the same trial. " ( 10 ) A reading of the provisions referred to above makes it clear that in a criminal proceeding, the status of an accused is not akin to a defendant in a civil proceeding. The onus of proving everything essential to the establishment of a charge is wholly upon the prosecution. It is so also in cases instituted otherwise than a police report. The words, "and also to hear the accused and take all such evidence as he produces in his defence" used in Section 254 (1) of the Cr. P. C. makes it clear that the option of producing any defence witness is with the accused. A reading of Sections 254 (1) and 315 (1) of the Cr. P. C. shows that though an accused is a competent witness, he cannot be called as a witness except on his own request in writing. His failure to give evidence also cannot be made the subject of any comment by any of the parties or the Court. There is also no provision in the Criminal Procedure Code stipulating that when he wishes to appear as a witness, he shall so appear before any other witness has been examined. His application under Section 254 (2) of the Cr. P. C. for issuance of a witness summons cannot be rejected on the ground that he may examine such witness after he is examined as a witness for defence. His application under Section 254 (2) of the Cr. P. C. for issuance of a witness summons cannot be rejected on the ground that he may examine such witness after he is examined as a witness for defence. The learned Magistrate was, therefore, not right in declining to grant the prayer of the accused-petitioner. ( 11 ) IN the result and for the foregoing reasons, the petition is allowed and the order dated 27-11-2003 passed in CC No. 1853/2000 by the JMFC (IV Court), mangalore, keeping in abeyance the application of the accused-petitioner for summoning defence witness is hereby quashed. The learned Magistrate is directed to proceed with the matter in accordance with the provisions of Section 254 (1) of Cr. P. C. in the light of the observations made above. However, taking into consideration the plea of the complainant that the matter is pending since long, it is directed that the accused shall co-operate in the disposal of the case. The case shall be disposed of, as far as possible within three months from today. The lower Court Records shall be sent back immediately. Petition allowed. --- *** --- .