IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 02ND DAY OF DECEMBER, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL CRIMINAL REVISION PETITION NO.1343/2019 Between:
Shri Mahesh Kumar S/o Shri. Chikkaiah Aged about 52 years Residing at No.137 Avvana Mane, Gandhinagar Bhadravathi Shivamogga – 572 101. … Petitioner (By Sri. Shyam Sundar M.S., Advocate) And:
State of Karnataka by Shivamogga Rural Police Station Shivamogga District Represented by SPP High Court of Karnataka Bengaluru – 560 001. … Respondent (By Sri. M. Divakar Maddur, HCGP) This Criminal Revision Petition is filed under Section 397 R/W Section 401 of Cr.P.C., praying to set aside the order dated 18.09.2019 passed by the 1st Additional Senior Civil Judge and CJM at Shivamogga, dismissing the application filed by the petitioner under Section 91 and 243 of Cr.P.C. vide annexure-A and allow the petitioners application seeking defense evidence under Section 91 and 243 of Cr.P.C. vide annexure-B to the petition in C.C.No.611/2015 pending on the file of the 1st Additional Senior Civil Judge and CJM at Shivamogga.
This Criminal Revision Petition is coming on for Dictation, this day, the Court made the following:
O R D E R The present Criminal Revision Petition has been filed by the petitioner/accused No.1 challenging the order passed by the Court of I Additional Senior Civil Judge and C.J.M., Shimoga in C.C.No.611/2016 dated 18.09.2019, whereunder, the application filed under Sections 91 and 243 of Cr.P.C. came to be dismissed.
2. I have heard the learned counsel for the petitioner and learned High Court Government Pleader for the respondent-State.
3. The gist of the case is that a criminal case was registered against the accused for the offences punishable under Sections 420, 384, 506 read with 34 of IPC. After closure of the evidence of prosecution, the case was posted for recording the statement of accused under Section 313 of Cr.P.C. At the time of recording the statement of accused Nos.1 and 2, they had filed a detailed written statement along with the list of witnesses in support of their defence. They wanted to examine the said witnesses, in that light, they have filed an application praying to issue summons to the said witnesses. The said application came to be dismissed by the trial Court.
4. The main grounds urged by the learned counsel for the petitioner/accused is that a false case has been registered against the accused, it is nothing but abuse of process of law. It is his further submission that he has filed an application to examine the witnesses mentioned in the witness list in the defence statement. Though the witnesses have been cited in the defence statement, the Court below has not summoned them. Only on the say of Assistant Public Prosecutor, the application was dismissed. It is his further submission that the Court below has not kept into the object, letter and spirit of Sections 313 and 315 of Cr.P.C. If the accused intending to examine the witnesses to substantiate his case, then under such circumstances, the Court cannot curtail his right to examine the said witness. He further submitted that without examining the witnesses, the Court cannot come to a right conclusion. The trial Court has observed that the witnesses cited by the accused who are to be examined will mislead the case, is nothing but predetermination of the case. It is his further submission that without application of mind, the Court below has passed the erroneous and illegal order. On these grounds, he prayed to allow the petition and to set aside the impugned order.
5. Per contra, learned High Court Government Pleader vehemently argued and submitted that after conclusion of the trial, the defence taken by the accused during the course of recording of their statement, by stating that the police officials have man handled them and they have been assaulted and sustained injuries is a matter of fact and same be proved by producing the records and he has to substantiate the said statement. It is his further submission that the petitioner/accused have been apprehended by following procedure, but without there being any substantive material, only with an intention to harass the police officials and to create a threat in the mind of police official such application has been filed and the petitioner/accused were intending to call them as witnesses. It is his further submission that they have already filed the written statement along with the statement under Section 313 of Cr.P.C., that itself is not going to substantiate the case of the accused. The trial Court applied its mind and thereafter, passed the impugned order. There are no good grounds made out by the petitioner/accused to interfere with the order of the trial Court. On these grounds, he prayed to dismiss the petition.
6. I have carefully and cautiously gone through the submissions made by the learned counsel appearing for the parties and perused the records.
7. On perusal of the records, it indicates that after closure of evidence of the prosecution, the statement of the accused was recorded under Section 313 of Cr.P.C. It further discloses that accused Nos.1 and 2 have filed a detailed written statement about their say and in the said written statement they have cited ten witnesses and requested the Court to issue summons to the said witnesses to the examine them before the Court. Though, the said statement contains the list of witnesses, the trial Court without considering the said fact has posted the case for arguments and at that time, the present written statement came to be filed. For the purpose of brevity, I quote Section 315 of Cr.P.C., it read as under:
“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.
(2) Any person against whom proceedings are instituted in any Criminal Court under section 98, or section 107, or section 108, or section 109, or section 110, or under Chapter IX or under Part B, Part C or Part D of Chapter X, may offer himself as a witness in such proceedings:
Provided that in proceedings under section 108, section 109 or section 110, the failure of such person to give evidence shall not be made the subject or any comment by any of the parties or the Court or give rise to any presumption against him or any other person proceeded against together with him at the same inquiry.”
8. Section 313 of Cr.P.C. enables the Court to examine the accused by putting such questions to him as the Court considers necessary. Section 315 of Cr.P.C. enables the accused to examine himself as witness and he is also entitled to lead the defence evidence. He can also examine the witnesses on his behalf.
9. On close reading of the said Section, it indicates that the accused is having right to examine himself as a defence evidence and even he can summon any witness to give evidence on his behalf. Such right is available to the accused which cannot be denied. This preposition of law has been laid down by the Hon’ble Apex Court in the case of Gajendra Singh and others Vs. State of Rajasthan reported in 1998 SCC (Cri) 1608 at para 3, it has been observed as under:
“3. We have heard the learned counsel for the appellant as well as the State of Rajasthan. Once the Court allowed the application of the accused to be examined as a defence witness and commenced recording of his evidence, we fail to appreciate why he was not allowed to produce the documents on which he desired to rely. Merely because he did not produce the documents before his evidence was recorded is no reason why once the Court permitted him to step into the witness-box he was denied the opportunity to produce the documents on which he desired to rely to support his evidence. It appears that the learned Judge was unhappy because the matter had been pending since long at the stage of arguments and it was at that point of time that the accused moved the application for examination as a defence witness. Once the learned Judge allowed his application and commenced examining him as a defence witness, we fail to see why he took the attitude of not permitting the witness to produce the documents on which he relied. All this time and energy could have been saved if the learned Judge had been pragmatic. Unfortunately, even the High Court adopted a very technical approach”.
Taking into consideration of the above said decision rendered by the Hon’ble Apex Court, I am of the considered opinion that after recording the statement of the accused under Section 313 of Cr.P.C. if the accused desire to examine any witness as a defence witness. If gives application to examine them under such circumstances, the court below has to give full opportunity to examine such witnesses.
10. On close reading of the objection filed after recording the statement of the accused, therein, they have categorically stated that they want to examine the witnesses. They have also given list of witnesses whom they want to examine and whom they intend to examine is their discretion. But the Court has to issue summons to the said witnesses and secure them and permit the accused to lead his evidence. If the right of the accused is going to be curtailed, under such circumstances, right as confirmed under Sections 313 and 315 of Cr.P.C. is going to be vitiated and the accused will be deprived of an opportunity to put forth his case.
11. Looking from any angle, the order of the trial Court is not in accordance with law. Accordingly, the petition is allowed and the impugned order is liable to be set aside. Hence, the same is set aside.
Trial Court is directed to summon the witnesses in accordance with law for examination before the Court.
Sd/- JUDGE NR/-