Nakkheerangopal vs Kovai Thangam

M. Jeyapaul, J.—The revision is directed against the order passed by the learned Judicial Magistrate VII, Coimbatore rejecting the plea of

the petitioner who is the first accused in C.C. No. 200 of 2004 to examine five co-accused as witnesses on his side. Of course, the learned

Judicial Magistrate VII, Coimbatore was pleased to permit the petitioner to examine the sole independent witness cited in the list of witnesses

placed before the court.

The petitioner is the first accused in a case launched against him for offences under Sections 500, 501 and 502 of the Indian Penal Code. After

questioning the accused u/s 313 of the Code of Criminal Procedure, the learned Judicial Magistrate VII, Coimbatore offered an opportunity to the

accused to lead evidence on their side. At that stage, the first accused, who is the petitioner herein, filed a list of witnesses to be examined as

defence witnesses. The learned Judicial Magistrate was pleased to reject the plea of the accused to examine the witnesses shown in the list

produced.

A revision in Crl. R.P. No. 160 of 2000 was preferred by the first accused before the Court of Sessions. The said Criminal Revision Petition

was taken on file by the District Judge, Fast Track Court III, Coimbatore who dismissed the said revision petition on 19.12.2005. The first

accused invoked the provision of Section 482 of the Code of Criminal Procedure by filing Crl.O.P. No. 5412 of 2006 before this Court. This

Court was pleased to dismiss the said petition as withdrawn giving liberty to the learned Counsel for petitioner to take appropriate action in

accordance with law.

Thereafter, the petitioner herein filed Crl.O.P. No. 7853 of 2007 under Sections 254 and 311 of the Code of Criminal Procedure seeking

permission for the petitioner to examine as many as six witnesses on his side as defence witnesses.

By the impugned order, the learned Judicial Magistrate VII, Coimbatore directed the petitioner to examine the only independent witness cited

by the petitioner as defence witness. But, the learned Judicial Magistrate was pleased to reject the plea of the petitioner to examine the other five

accused viz., A3 to A7 in this case on his side as defence witnesses.

The learned Judicial Magistrate was pleased to dismiss the plea of the petitioner to examine the co-accused on the main ground that request in

writing should have emanated from the accused concerned for subjecting himself as one of the defence witnesses. As no such written request

emanated from any of those accused, the learned Judicial Magistrate has come to the conclusion that the petitioner is not entitled to examine the

co-accused as defence witnesses. So saying, the learned Judicial Magistrate rejected the plea of the petitioner to examine A3 to A7 on his side.

The only point that arises for consideration is whether an accused in a case can examine a co-accused without a request in writing emanated

from him and whether the court which took cognizance of the list of witnesses submitted by an accused can ascertain from the co-accused as to

whether he is prepared to give evidence as a witness on the side of the co-accused.

Learned Counsel appearing for the petitioner, referring to Article 20(3) of the Constitution of India, would submit that the embargo found in

Article 20(3) would apply only in a case where an accused was compelled to be a witness against himself. Here is a case where an accused has

desired to examine the co-accused as defence witnesses. Therefore, the bar under Article 20(3) of the Constitution of India does not apply to the

plea of the petitioner to examine the co-accused as defence witnesses to disprove the charges levelled against him. The learned Counsel for the

petitioner, referring to Section 315 of the Code of Criminal Procedure, would contend that the scope of Section 315(1)(a) of the Code of Criminal

Procedure will have to be expanded to accommodate the plea of an accused to examine a co-accused as defence witness after ascertaining the

willingness of the co-accused cited as a witness. It is his further submission that the learned Judicial Magistrate, in the interest of justice, having

gone through the list of witnesses, should have ascertained the willingness or otherwise of the co-accused who were cited as witnesses to defend

the petitioner herein. He would lastly submit that though Section 315(1)(a) of the Code of Criminal Procedure mandates that before ever an

accused is examined as a defence witness, a request in writing should emanate from him, considering the fact that accused 3 to 7 are the persons

who passed on the information for publication to the first accused herein, the scope of Section 315(1)(a) of the Code of Criminal Procedure may

be expanded to accommodate the plea of the petitioner, as otherwise, the petitioner will lose an opportunity to disprove the charges levelled

against him.

Learned Senior Counsel appearing for the second respondent/complainant, supporting the decision of the learned Judicial Magistrate, would

contend that inasmuch as there is a clear bar to examine a co-accused as a competent witness even on the side of the defence without any request

in writing from him, the court has no power to expand the mandatory provision adumbrated u/s 315(1)(a) of the Code of Criminal Procedure. He

would further submit that the court has no authority to ascertain a co-accused as to whether he was willing to be cited as a defence witness

inasmuch as the provision u/s 315(1)(a) of the Code of Criminal Procedure is crystal clear that such a request in writing should emanate from the

accused himself. It is his submission that the Trial Court has rightly dismissed the application seeking permission to examine the co-accused in this

case as defence witnesses.

As rightly pointed out by the learned Counsel for the petitioner, Article 20(3) of the Constitution of India imposes a restriction to examine an

accused by the prosecution to prove the charges against him. Here in this case, the first accused, who is the petitioner has cited A3 to A7 as

witnesses to disprove the charges levelled against him. Therefore, this is not a case where an accused is compelled to give evidence as against

himself.

The court will have to see whether the petitioner being one of the accused in this case can canvass for examination of the other accused on his

side to disprove the charges levelled against him. As per Section 315(1)(a) of the Code of Criminal Procedure, an accused can give evidence on

oath in disproof of the charges made not only against him but also against the other accused in the same trial. But, the proviso found therein would

read that such an accused shall not be called as a witness except on his own request in writing. The aforesaid proviso to Section 315 makes it

abundantly clear that before ever an accused comes to the box to disprove a charge before the court, he should have made a request in writing to

the court. Such a safeguard has been made u/s 315 of the Code of Criminal Procedure to save the accused from the embarrassment of facing any

incriminating question put to him. Further, no accused can be compelled to give evidence to disprove the charges made either against him or

against the co-accused in the trial. It is not the duty of the Trial Court to ascertain the willingness or otherwise of the accused to enter into the box

for deposing in favour of the co-accused especially when the proviso u/s 315 is quite clear that the accused himself should come out with a request

in writing to subject himself for examination. It is out of the scope of the trial court to ascertain the view of the accused concerned as to his

willingness to depose before the court. If at all, the co-accused cited by the petitioner herein are willing to depose on behalf of the petitioner herein,

it is left to them to come out with a petition in writing seeking permission of the court to examine them as witnesses in this case.

It is made clear that the petitioner herein cannot make such a request to the Trial Court in the absence of any request in writing from the co-

accused to examine them on his side. There is no illegality in the order passed by the Trial Court declining to accede to the request of the petitioner

to examine the co-accused on his side. The Trial Court has rightly rejected the plea of the petitioner, taking inspiration from the mandatory

provision u/s 315 of the Code of Criminal Procedure, to examine the co-accused as witnesses on the side of the petitioner. There is no warrant for

interference with the impugned order passed by the Trial Court. The petition, therefore, stands dismissed.