B. THOMAS AND ANR. Vs. JOSEPH THOMAS

JUDGEMENT

(1.) The petitioners are the accused in C.C. No.101 of 1986 on the file of the Judicial First Class Magistrate, Tirunelveli. They are being prosecuted for offences under Sec. 406, 467 and 471 read with section 1091.P.C. on a private complaint instituted by the respondent. Though initially this petition had been filed to call for the records and quash the proceedings in the trial court on various grounds, all that has been given up now by Thiru C.S. Dhanasekaran, the learned counsel for the petitioners and he restricts himself to one contention which is as follows: Before framing of the charge, the petitioners did not have an opportunity to cross-examine P.W.1 who is the complainant himself. According to the learned counsel, under section 244Cr.P.C. when, in any warrant-case instituted otherwise than on a police report, the Magistrate proceeds to hear the prosecution and take all such evidence as may be produced in support thereof, the accused have a right to cross-examine the witnesses examined at that stage before the trial Magistrate proceeds to frame the charge or concludes to pass an order of discharge. The word "all such evidence" will include chief-examination, cross-examination and re-examination. To a specific question put to the learned counsel for the petitioners whether the trial Magistrate refused to permit cross- examination of P.W.1, learned Counsel states that the counsel, who appeared in the lower Court, was under a mistaken impression that only the sworn statement of the complainant was available on file when the charge was framed and was not even conscious of the recording of the chief- examination of P.W.1. If that be so, it cannot be gainsaid that the petitioners, who are lay men, would not have known about their right, when their counsel himself was unaware of the examination of P.W.1 in the witness box.

(2.) Mr. P. Kulandaivadivelu, learned counsel for the respondent would refer to section 138 of the Indian Evidence Act and contend that cross- examination will arise only when the adverse party so desires. It is his submission that on the facts of this case, the accused did not appear to have expressed their desire to cross- examine and hence there is no illegality in the procedure adopted by the trial Magistrate. I have already stated the course of events wherein even the counsel for the petitioners in the trial Court appears to have been unaware of the examination of P.W.1 in the witness box. There is no endorsement in the evidence of P.W.1 that the petitioners did not want to cross-examine P.W.1. It is also not stated in the deposition itself "No cross". It is, therefore, obvious that in the absence of the counsel's knowledge, the petitioners were unaware of their right to cross-examine P.W.1 before the charge was framed.

(3.) Learned Counsel for the respondent would refer to Emperor Vs. Mahrab (A.LR. 1930 Sind 54) and advance his argument that all official acts must be presumed to have been done properly, for, if there is no cross-examination of P.W.1, it has to be taken that the petitioners did not want to exercise their right. This position cannot be inferred on the facts quoted in Emperor Vs. Mahrab (A.I.R. 1930 Sind 54) , for, in that case it was noted at the end of the deposition "cross-examination reserved". The Court held that the cross-examination could not have been reserved by the Magistrate and it could only mean that he had performed his official act and the accused had not utilised the opportunity for cross examination. On facts, the case on hand is distinguishable. That the accused have the right to cross-examine at this stage cannot admit of any doubt in view of the authoritative pronouncement of law by the Supreme Court in A.R. Antulay Vs. R.S. Nayak (A.I.R. 1984 S.C. 718) Wherein referring to a stage prior to the framing of the charge, the following observation has been made: