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Judgment
V. Bakthavatsalu, J.—The revision petitioner is the first accused in the case pending before the Special Judge No. 1, Chennai The charge
against the revision petitioner is that the revision petitioner being a public servant, as a member of the Tamil Nadu Legislative Assembly, was found
in possession of properties in her name and in the names of accused 2 and 3 and their children, for which she could not satisfactorily account for
pecuniary resources to known sources of income to the extent of Rs. 2,36,15,386/-, by criminal mis-conduct and that she has committed an
offence punishable u/s 13(2) read with 13(1)(e) of the Prevention of Corruption Act. After conclusion of the prosecution evidence, the revision
petitioner filed list of defence witnesses. The list contained 141 witnesses. The learned Special Judge by an order dated 8.11.99 has permitted the
revision petitioner to examine 25 witnesses from the list. Aggrieved by the said order, the revision is preferred by the first accused.
The following contentions are raised by the revision petitioner in this revision:
As presumptive criminal misconduct can be drawn u/s 13(i)(e) of the Prevention of Corruption Act, the burden shifts on the accused and she has
to satisfactorily account for possession of pecuniary resources or property. Hence, she must be given an opportunity to discharge the burden by
examining her witnesses. Once the accused files list of witnesses on her behalf, it is the duty of the Magistrate to issue process, unless he refuses
such an application on the ground it is made for the purpose of delay or defeating the ends of justice. But. no such reasons are given in the
impugned order. The prosecution examined 81 witnesses out of 159 witnesses cited in the chargesheet. The accused has given the list of witnesses
and the purpose for which they are going to be examined. Admittedly, 56 promissory notes were recovered by P.W.81, the investigating officer,
from the creditors. The above promissory notes were executed by the revision petitioner in favour of several creditors. Witnesses 1 to 99 and 101
to 125 are to speak about the promissory notes executed by the petitioner. These witnesses are necessary to show that the petitioner had
borrowed about Rs. 56 lakhs, from the creditors by executing promissory notes. Unless these witnesses are examined, she will not be able to
prove her case and discharge her burden. The trial Court has permitted the petitioner to examine only 25 witnesses without any reason. The trial
Court ought to have permitted the accused to examine the defence witnesses, since the burden shifts to the accused.
Learned Senior Counsel Thiru. Gopinath contended that the trial Court should have given an opportunity to the revision petitioner to examine the
witnesses chosen by the petitioner and that the right of the accused to examine the witnesses cannot be curtailed by the Court and that in the list all
the particulars are given. Learned Senior Counsel for the revision petitioner relies upon a decision reported in Ronald Wood Mathams Vs. State of
West Bengal, . Wherein it is held thus:
The accused cannot be convicted without an opportunity being given to him to present his evidence and if it is denied to him, there is no fair trial
and conviction cannot stand. It is essential that rules of procedure designed to ensure justice should be scrupulously followed and Courts should be
zealous in seeing that there is no breach of them
Repelling the above contentions, learned Public Prosecutor Thiru. Shanmugasundram contended that in the list furnished by the accused there is
repetition of witnesses and that certain particulars are not given in the list and that the list of documents are not furnished and that Section 136 of
the Evidence Act empowers the Court to admit evidence, if the Court thinks that the fact if proved would be relevant and not otherwise. My
attention is also drawn to Section 5 of the Evidence Act. Learned Public Prosecutor inter alia contended that the Special Court has not passed any
final order and that the order which is challenged herein is only an interlocutory order and as such, the revision will not lie u/s 397(2) Crl.P.C.
Having given anxious consideration to the above rival contentions, the crucial points raised in this revision have to be determined.
Before proceeding to canvass the correctness and legality of the impugned order, it becomes necessary to decide the question whether the
order challenged herein is a final order or an interlocutory order.
Section 397(2) Cr P.C. states that the power of the revision conferred by sub-Section (1) shall not be exercised in relation to an interlocutory
order passed in any appeal, inquiry, trial or other proceeding. Similar provision is also contained in the Prevention of Corruption Act. Section
19(3)(c) of the Act states that no other ground and no Court shall stay the proceedings under this act on any other ground and no court shall
exercise the powers of revision in relation to any interlocutory order passed in any inquiry, trial, appeal or other proceedings. Certain decisions are
cited at the bar on the above aspect of the case.
In Madhu Limaye Vs. The State of Maharashtra, it is held thus:
Ordinarily and generally the expression interlocutory order'' has been understood and taken to mean as a converse of the term ''final order''. But an
interpretation and the universal application of the principle that what is not a final order must be an interlocutory order is neither warranted nor
justified. If it were so, it will ""render almost nugatory the revisional power of the Session Court or the High Court conferred on it by Section
397(1). On such a strict interpretation, only those orders would be revisable which are orders passed on the final determination of the action but
are not appealable under chapter XXIX of the code
It is also held in paragraph 15 of the above decision thus:
An order rejecting the plea of the accused on a point which, when accepted will conclude the particular proceeding will surely be not an
interlocutory order within the meaning of Section 397(2)
In Amar Nath and Others Vs. State of Haryana and Another, the Apex Court has held that the term ""interlocutory order"" has been used in a
restricted sense and not in any broad sense. It has been held in the above decision that the word"" interlocutory order"" denotes orders of purely
interim or temporary nature which do not decide or touch the important rights of the parties. It is also clearly held in the above decision that any
order which substantially affects the right of the accused or decide certain rights of the parties cannot be said to be an interlocutory order.
In another decision reported in V.C. Shukla v. C.B.I (1980 SCC (Cri.) 695), the Apex Court has held thus.-
If an order is not a final order, it would be an interlocutory order. An interlocutory order merely decides some point or matter essential to the
progress of the suit or collateral to the issues sought but is not a final decision or judgment on the matter in issue. So that in ordinary sense of the
term, an interlocutory order is one which only decided a particular aspect or a particular issue or a particular matter in a proceeding, suit or trial but
which does not however, conclude the trial at all. One of the tests is to see if the order is decided in one way, it may terminate the proceeding but if
decided in another way, then the proceeding would continue. A final order finally disposes of the rights of the parties (underline is mine). In the
above case, it is held that the order of framing charge against the accused is an interlocutory order.
Bearing the principles of law laid down in the above decisions, the question whether the impugned order is final or interlocutory order has to be
decided.
It is seen from the list furnished by the accused, she has given a list of witnesses numbering 141. The special Court has not given a finding that
some of the witnesses figuring in the list are irrelevant. On the other hand, the special Court has held that the witnesses Nos. l to 99 and 101 to 125
are going to speak about the promissory notice executed by the first accused and that the petitioner can examine as many as 15 witnesses of her
choice. It is, thus, seen that though the accused has cited nearly 100 witnesses as to prove a particular fact, the Court has permitted the petitioner
to examine only 15 witnesses. Regarding witness Nos. 130 to 135, the Court has permitted to examine only two witnesses, out of five witnesses,
described as witnesses Nos. 136 to 140, the Court has permitted to examine only two witnesses and that in all, the Court has permitted the
petitioner to examine only 25 witnesses.
Learned Senior Counsel for the petitioner contended that it is for the accused to choose and examine the defence witness and that the Court
cannot restrict the accused to examine a few witnesses and that the Court has negatived the right of the accused to examine all the witnesses and
that as the right of the accused in examining the witnesses of her choice is negatived, the said order is final and not interlocutory. In this context, it
would be useful to refer to Section 13(i)(e) of the Prevention of Corruption Act. As per the above section, a public servant is said to commit the
offence of criminal misconduct ""if he or any person on his behalf, is in possession or has, at any time during the period of his office, been in
possession for which the public servants cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of
income"". The term ""known sources of income"" is also defined in the explanation. It is manifestly clear from the above definition that public servant
has to satisfactorily account for the pecuniary resources or property. As the burden shifts to the accused, the accused has got every right to
examine the witnesses of her choice. If the Court restricts number of witnesses thereby preventing the accused from examining any other witnesses,
the right of the accused to examine all the defence witnesses is finally determined. The order passed by the special Judge will show that the special
Judge has permitted the accused to examine only 25 witnesses. As the above order passed by the Court is in the nature of placing embargo on the
accused from examining the other witnesses cited in the list, it cannot be said that the order is only interlocutory. On reading the entire order as a
whole, I hold that the right of the accused to examine only few witnesses of her choice cannot be said to be interlocutory. Therefore, the contention
of the learned public prosecutor that the order challenged in this revision is only an interlocutory order cannot be accepted.
It is contended by the learned senior counsel for the revision petitioner that even if revision does not lie, the Court is empowered to give
suitable direction to the trial Court by virtue of the power conferred u/s 482 Cr.P.C. Attention of this Court is also drawn to the decision reported
in Madhu Limaye v. State of Maharashtra (supra). It is held in the above decision that power is not to be resorted to if there is a specific provision
in the code for the redress of the grievance of the aggrieved party and that the Court must exercise the inherent powers very sparingly ''In Raj
Kapoor and Others Vs. State and Others, the Apex Court has held thus:-
At the other extreme, final orders are clearly capable of being considered in exercise of inherent power, if glaring injustice stares the Court in the
face. In between is a tertium quid, as for example, where it is more than a purely interlocutory order and less than a final disposal. In such case the
inherent power can be exercised.
It is needless to give any finding on the above aspect since the impugned order would affect the right of the party in examining the witnesses other
than 25 witnesses permitted by the Court. As the above order is not an interlocutory in character, the question whether, the Court by virtue of
inherent powers u/s 482 Cr.P.C. is entitled to interfere with the order in the interest of justice would not arise.
The next question that arises for consideration is whether the order of the special Court restricting the number of witnesses to be examined by
the defence is correct. It is contended by the learned counsel for the petitioner that the investigating officer recovered nearly 56 promissory notes
and that the above documents are also noted in the list and that those promissory notes were executed by the revision petitioner in favour of
several creditors and that therefore, she has to examine the promissory notes and that therefore, the petitioner''s defence would be affected if she is
not allowed to examine the witnesses other than the witnesses permitted by the Special Court.
Learned Public Prosecutor contended that the list of witnesses furnished by the petitioner is defective. To substantiate the same, he has invited
my attention with regard to witness No. 5, 15 &21. It is contended that witness No. 5 is repeated in the list as witness No. 128. Witness No. 15 is
again repeated as No. 129 in the list and that full particulars are not given in the list, and that the list of the documents are not given. If the names of
the witnesses are repeated again and again in the list, the Court is entitled to restrict the number of such witnesses. It is seen from the list that the
purposes for which the witnesses are proposed to be examined are also given. It is contended that the documents are already in Court. The special
Court has not given any finding that the list furnished by the revision petitioner is defective and that list of documents are not furnished. If particulars
of other documents are not furnished, it is open to the Court to direct the revision petitioner to file the correct list. Therefore, the right of the
accused to examine other witnesses mentioned in the list cannot be negatived on that ground.
It is contended by the learned Public Prosecutor that by virtue of powers conferred on the Court u/s 136 of the Evidence Act. the court has
got power to restrict number of witnesses and that therefore, the correctness of the said order cannot be challenged in this revision. But, it is seen
from the order of the special court that the special court has not given any finding that the evidence of other witnesses are irrelevant. All that is
stated by the court is that the accused can examine 15 witnesses out of witnesses Nos. 1 to 99 and 101 to 125, which relates to execution of the
promissory notes. As the special court has not given any finding that the evidence of other witnesses are irrelevant, Section 136 of the Evidence
Act cannot be pressed into service at this stage.
The right of the accused to examine her witnesses is enshrined in Section 243 Cr.P.C. But it is seen from Section 22 sub clause (a) of the
Prevention of Corruption Act states that words ""the accused shall then be required to give in writing at once or within such time as the court may
allow, a list of persons whom he proposes to examine as his. witnesses and of the documents on which he proposes to rely and he shall then be
called upon"" has been substituted for the words in Section 243 Cr.P.C. ""the accused shall then be called upon"". As already stated, in the list
furnished by the defence, the purpose for which the proposed witnesses should be examined is also stated. As already stated, the special Court
itself has not given any finding that the list furnished by the accused is not in accordance with Section 22 of the Prevention of Corruption Act. In the
above circumstances, the contention of the learned Public Prosecutor on the above aspect does not call for any finding.
Learned Public Prosecutor further contended that as per the Explanation to section 13(1)(e) of the Act, the known sources of income of the
public servant should be from lawful source and that receipt of such income should have been intimated by the public servant in accordance with
provisions of law applicable to such public servants. Learned Public Prosecutor in order to substantiate the above plea also relies upon a decision
reported in P. Nallammal Etc. Vs. State Rep. by Inspector of Police, . The question whether failure of the petitioner to intimate the source of
income to the competent authorities will probablise the case of the prosecution or strengthen the case of the defence cannot be decided in this,
proceeding. As already stated, as the accused is facing charge u/s 13(1)(e) of the Act, it is open to the accused to adduce evidence for the
purpose of ""accounting known source of income"" and to that extent, the accused has got right to adduce evidence. The special court has not given
any finding that the evidence of witnesses mentioned in the list are not relevant to rebut the presumption as contemplated in Section 13(1)(e) of the
Act. It is, further, contended by the learned public prosecutor that the accused though summoned the witnesses on the hearing dates did not
choose to examine the said witnesses and that they were sent away from the court. Learned Public Prosecutor relies upon the order of the Special
Court passed on 9.12.99. But the order of the special court dated 9.12.99 will show that the special court has adjourned the case to 13.12.99 for
examining other witnesses. As the case has reached the defence stage, the accused is expected to cooperate with the court m examining the
defence witnesses without taking unnecessary adjournments.
The grievance of the petitioner is that she has to prove nearly 56 promissory notes and that therefore, much hardship would be caused to her if
she is not permitted to examine the other witnesses who would unfold the fact leading to the execution of the promissory notes. The special court
has permitted only 15 witnesses out of witness Nos. 1 to 99 and 101 to 125. The special court has not given any reasons as to why the court has
allowed only 15 witnesses, especially when the accused wants to prove nearly 56 documents. It cannot be disputed that when the execution of the
document is specifically denied by other parties, the party who relies upon such documents has to prove the execution of the document by
examining the attestors and scribe. If one of the attestors turns hostile, it is open to the party to examine other witnesses to prove the execution of
the document. If the order of the special court permitting the petitioner to examine only 15 witnesses is implemented, then the accused would be
precluded from examining other witnesses. The right of the accused to examine other witnesses who would unfold relevant facts touching the point
in issue cannot be denied. Therefore, I hold that the order of the special court restricting the petitioner to examine only 15 witnesses cannot be
sustained.
As regards witness Nos. 126 and 127. the special court has permitted to examine both. The special court also permitted the accused to
examine witness Nos. 126 and 129 and witness No. 100. But, as regards witness Nos. 130 to 135 and 136 to 140. the special court has
permitted the accused to examine any two of the witnesses. As already stated, if one or two witnesses permitted by the special court turn hostile, it
is open to the accused to examine other witnesses mentioned in the list. The right of the accused to prove a particular fact would be defeated if the
accused is permitted to examine only one or two witnesses. It is no doubt true that Section 134 of the Indian Evidence Act states that no particular
number of witnesses, shall in any case be required for the proof of any fact. It can be said in other words, that the court has to take into
consideration only the quality of the evidence and not the quantity. The above question will arise only at the time of conclusion of the entire
evidence. It has to be stressed at this stage that the right of the accused to examine the witnesses of her choice cannot be curtailed by directing the
accused to examine only 25 witnesses of her choice. In the above circumstances. I hold that the order of the Special Court has to be modified.
In the result, the criminal revision case is disposed of with the following directions:
(1) The Special Court is directed to permit the revision petitioner to examine some more witnesses of her choice mentioned in the list of witnesses
Nos. l to 99 and 101 to 125.
(2)The Special Court is directed to permit the accused to examine witnesses Nos. 130 to 135 and 135 to 140.
(3)The revision petitioner is directed to furnish list of other witnesses mentioned in the list to the prosecution containing full particulars.
(4)The examination of defence witnesses should be completed within a reasonable time as fixed by the Special Court.
Consequently, Crl.M.P. Nos. 9809 & 10161 of 1999 are closed.