BABURAJ Vs. STATE

JUDGEMENT

(1.) THE petitioners are accused in C.C.No.1042 of 2007 on the file of the 18th Metropolitan Magistrate, Saidapet, Chennai and facing trial for the alleged offences under Sections 498(A) and 406 IPC filed Crl.M.P.No.6142 of 2008. At the time of questioning under Section 313 of Cr.P.C, a list of defence witnesses have been submitted by the petitioners, but the same was objected by the prosecution stating that the names mentioned in the list were no way connected with the case and no reason has been mentioned. Learned Magistrate, after hearing both sides, rejected the list of witnesses submitted by the petitioners by order dated 05.08.2008. Being aggrieved by that the above Criminal Original Petition has been filed by the accused.

(2.) MR. A. Ramesh, learned Senior Counsel appearing on behalf of the petitioners submitted that the examination of the defence witnesses is a right of the accused and the same cannot be prevented by the prosecution and at the time of submitting list of witnesses it is not necessary to furnish the reasons for examining the witnesses. Learned Senior Counsel submitted that the learned Magistrate has made the following observation while rejecting the list of witnesses submitted by the petitioners namely " To determined the above defence ought to have state the correct and brief reason for calling witness. However, in this case, the defence side without stating any accepted/brief reasons listed more persons as witness that too many of them are Senior Police Officials. The contention of the prosecution regarding the then A.P.P also found to be acceptable." Learned Senior Counsel submitted that the aforesaid reasoning of the trial Court is against the well settled principles of law laid down in a catena of decisions by the Honourable Apex Court and this Court. He relied on the decision of the Apex Court reported in "(2000) 3 Supreme Court Cases 328 (Arivazhagan -vs- State). In the said decision in paragraph 13, the Apex Court has held as under:- "13. The position of an accused who is involved in a trial under the PC Act is more cumbered than an accused in other cases due to legislative curbs. One of them is envisaged in Section 22 of the PC Act. The court is not obliged to direct an accused involved under the PC Act to enter upon his defence until the Special Court has the occasion to see the list of his witnesses and also the list of his documents to be adduced in evidence on the defence side. An accused in other cases has to be called upon to enter on his defence irrespective of whether he would propose to adduce defence evidence because it is a choice to be exercised by him only after he is called upon to enter on his defence. But the accused under the PC Act need be called upon to enter on his defence only after the trial Judge has occasion to peruse the names of the witnesses as well as the purpose of examination of each one of them, and also the nature of the documents which he proposed to adduce as his evidence." He also relied upon a decision of the Apex Court reported in (2008) 5 Supreme Court Cases 633 (T. Nagappa -vs- Y.R. Muralidhar) wherein the Apex Court in paragraph No.9 has held as under: "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 sub-section (2) of Section 243 of the Code is bona fide or not or whether thereby the 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 protract the trial or summon witnesses whose evidence would not be at all relevant." Learned Senior Counsel further relied upon the decision of the Apex Court reported in 2007(2) Supreme Court Cases 258 (Kalyani Baskar -vs- M.S. Sampoornam). In this decision, in paragraph 12, the Apex Court has made the following observation:- "12. ...... The appellant cannot be convicted without an opportunity being given to her to present her evidence and if it is denied to her, there is no fair trial. "Fair trial" includes fair and proper opportunities allowed by law to prove her innocence. Adducing evidence in support of the defence is a valuable right. Denial of that right means denial of fair trial. It is essential that rules of procedure designed to ensure justice should be scrupulously followed, and the courts should be jealous in seeing that there is no breach of them. We have not been able to appreciate the view of the learned Judge of the High Court that the petitioner has filed application under Section 243 Cr.P.C without naming any person as witness or anything to be summoned, which are to be sent for handwriting expert for examination."

(3.) I have carefully considered the said submissions made by the learned counsel on either side.