M/S AGRADOOT PUBLISHERS PVT LTD & ANR. vs RAKIBUL HUSSAIN & ANR.

This is a criminal revision petition filed under Sections 397/401 of the Cr.PC, questioning the legality, propriety and correctness of the order dated 31.8.2015, passed in CR Case No. 2982/2008, by the learned Sub-Divisional Judicial Magistrate (S), Nagaon.

I have perused the petition as well as the annexures furnished therewith including the impugned order. Heard Mr. D K Sharma, learned counsel for the petitioner as well as Mr. A M Bora, learned Senior counsel for the respondent.

It appears from the petition and the impugned order taken together that one of the co-accused was examined as defence witness in the aforesaid complaint case. The remaining co-accused had filed an application seeking permission to cross-examine him which the learned trial court allowed vide the impugned order. The impugned order of the learned trial court is quoted below for convenience of discussions. "Both the complainant and the accused persons are represented. Having heard both the sides at length on petition number 1791 dated 21.07.2015 I am of the considered view that an accused when adduces his own evidence in defence is a competent witness and his testimony can be used against his co-accused. This necessarily implies that the co-accused has the right to defend himself from the incriminating evidence given by the accused in his testimony, including by cross-examining him. That would form a part of a fair trial.

In the instant case the defending co-accused is opposing the cross-examination by merely stating that he has not stated anything against the petitioner accused and that the petitioner accused can raise his defence by adducing his own evidence. True that the petitioner accused can adduce his own defence evidence but that does not mean that he cannot cross-examine his co-accused. Also, relevant or credible is the evidence so adduced, is a matter to be decided later and it cannot in any manner impact the question to be decided here. I do not find the grounds as stated by the defendant co-accused sufficient enough to not allow cross-examination and curtail the light of the petitioner accused to a fair trial.

Considering all the above, the petition number 1791 dated 21.07.2015 is allowed.

Fixing 30.09.2015 fro cross of DW-1."

The learned counsel for the petitioner has submitted that permitting the coaccused to examine the other accused who has been examined by the defence as defence witness is incorrect in the sense that this is a statement under Section 313 of the Cr.PC. But, in fact, the statement made in evidence by the co-accused as witness is not a statement under Section 313 of the Cr.PC as submitted by the learned counsel for the petitioner. Section 138 of the Evidence Act, provides for examination of witnesses wherein a right has been granted to the adverse party to cross-examine the witness. In the instant case, if the co-accused, as defence witness leads any evidence against the remaining co-accused, then they stand in the footing of adverse party and necessarily they should be permitted to cross-examine the defence witness (accused).

Section 315 of the Cr.PC reads as follows : S. 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.

It will be seen that whenever, in the course of a trial, an opportunity for adducing defence evidence arises, two categories of persons can adduce defence evidence. Firstly, those who are not accused in the case and secondly who is/are accused in the case. So far as person who are not accused in the case are concerned they can be straightaway examined as witness and law does not attach any qualification except to the extent that the name of such person should appear in the list of witnesses filed by the accused person. The evidence of such a witness can be recorded on oath. However, if a person who is already an accused in the case proposes to examine himself as witness, he has to submit a petition in writing expressing his desire to examine himself as witness, and secondly, no oath can be administered to such an accused who desires to examine himself as witness.

Therefore, the right of the accused to got himself examined subject to fulfillment of the conditions prescribed in Section 315 of the Cr.PC is a legal right.

So far the order dated 31.8.2015 is concerned, it appears to be inconformity with both, Section 138 of the Evidence Act, and Section 315 of the Cr.PC. That being so, the impugned order, referred to above, does not suffer from any illegality, impropriety and incorrectness, and therefore, the criminal revision petition is dismissed on merit.