Indumol v. State of Kerala and Benny Francis

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE MARY JOSEPH** ## **MONDAY ,THE 25TH DAY OF MARCH 2019 / 4TH CHAITHRA, 1941** ## **OP(Crl.).No. 129 of 2019** **AGAINST THE ORDER/JUDGMENT IN CMP No.14306/2018 IN CC 3362/2016 of JUDICIAL FIRST CLASS MAGISTRATE (N.I. ACT CASES, ERNAKULAM** ## **PETITIONER:** **INDUMOL AGED 42 YEARS W/O.LATE VISWANATHAN, PLANTHOTTATHIL HOUSE, PUTHENCRUZE P.O, ERNAKULAM,682 308** **BY ADVS.SRI.K.R.VINOD SMT.M.S.LETHA** ## **RESPONDENTS:** **1 STATE OF KERALA REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, KOCHI-31. 2 BENNY FRANCIS S/O. FRANCIS, KARIPPATT HOUSE, CC 41/2892, KATTIKARAN ROAD, OFF CHITTOOR ROAD, KACHERIPADY, ERNAKULAM, KOCHI-682 018** ## **OTHER PRESENT:** **(PP) SRI. C.K. PRASAD** **THIS OP (CRIMINAL) HAVING COME UP FOR ADMISSION ON 25.03.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** OP(Crl.).No. 129 of 2019 2 ## JUDGMENT In this Original Petition on hand filed under Article 227 of the Constitution of India, the following reliefs are sought : “(a) Call for the records pertaining to the Exhibit A4 order dated 14.02.2019 and set aside the same invoking the inherent powers of this Hon'ble Court u/s.482 of the Code of Criminal Procedure. (b) To issue any other order appropriate in the circumstances of this case.” 2. Ext.P4 referred to herein is an order passed by the Judicial First Class Magistrate (N.I. Act Cases) Court, Ernakulam (for short 'the trial court'), on 14.02.2019 in an application filed by the accused seeking to reopen the evidence and examine the petitioner as a witness. The court concerned has allowed the application and permitted examination of the daughter of the complainant on the wrong impression that she is the witness sought to be examined. 3. According to Sri.K.R. Vinod, the learned counsel for the complainant, the examination of the wife of the original complainant, who is no more and who has been brought on OP(Crl.).No. 129 of 2019 3 record as the legal heir of the deceased original complainant to continue with the prosecution was sought to be examined as a witness by filing C.M.P. No.14306/18 under Section 311 Cr.P.C. The purpose for examination of the witness was stated in the above application as marking of deposition of the complainant, who was examined as PW2 in a Civil Suit filed as O.S. No.585/13 before the 2[nd] Additional Munsiff's Court, Ernakulam. According to him, prior to the death of the original complainant, an application was filed by the accused for examining him as a witness and that was allowed by the trial court and PW1 was ordered to be recalled. Against that order, the original complainant has filed O.P. (Crl.) No.611/2017 before this Court. This court had granted an interim stay against the operation of the order but lateron due to the death of the petitioner/original complainant, O.P.(Crl.) No.611/2017 was closed as infructuous. 4. After the death of the original complainant, the petitioner herein was brought on record to continue the OP(Crl.).No. 129 of 2019 4 prosecution by stepping into the shoes of the complainant. Petitioner in the Original Petition on hand is none other than the wife of the original complainant. CMP No.14306/18 was filed by the accused seeking to reopen the evidence and to summon and examine the petitioner as a witness of him. True copy of the CMP is appended to the Original Petition on hand as Ext.P2. Ext.P2 was stoutly opposed by the petitioner herein by filing objection as Ext.P3. Without considering the objection filed by the petitioner, an order was passed by the trial court on 14.02.2019, allowing the application. By the order, the petitioner's daughter was directed to appear before the trial court as a witness to adduce evidence for and on behalf of the accused against whom the deceased husband of the petitioner has filed the complaint (Ext.P1) before the Magistrate. True copy of the order in CMP No.14306/18 dated 14.02.2019 is appended to this petition as Ext.P4 and that is under challenge in the petition on hand. 5. According to the learned counsel, the accused cannot as of right seeks for examination of the complainant as his OP(Crl.).No. 129 of 2019 5 witness. The learned counsel has relied on **Thomas v. Vijayakumari** [2002(1) KLT 689] and **Kamarudheen v. Shoukkathali** [2001(3) KLT 476] to rest his contention as above. 6. The dictum in Thomas's case supra is based on the one in Kamarudheen's case supra. In Kamarudheen's case supra the question considered was whether the accused in a case alleging commission of an offence by him under Section 138 N.I. Act has any right to get the complainant examined as a witness. It was held by this Court that it is not just and proper to compel a person to be a witness against him and as a matter of right, a party cannot have the opposite party examined as a witness. The Court while holding so, referred to sub-section (2) of Section 243 Cr.P.C and observed that though a prosecution witness can be re-summoned under Section 243 Cr.P.C at the instance of the accused, a complainant cannot be re-summoned. Though Section 243 Cr.P.C was referred to in the decision, the principle that a person cannot be compelled to be a witness against him OP(Crl.).No. 129 of 2019 6 formed the basis for arriving at the dictum that as a matter of right, a party cannot have the opposite party as a witness. In Thomas's Case supra, a Single Bench of this Court interpreted the words 'any witness' found in sub-section (2) of Section 243 and said that 'any witness' will not include the complainant. It is held that as of right, the accused in a case cannot get the complainant examined as his witness. 7. In the case on hand, the trial court has allowed the application by Ext.P4 order under the impression that the witness sought to be examined is the daughter of the complainant whereas the wife of the original complainant was brought on record as the representative of the complainant to continue with the prosecution. 8. In view of the dictums cited supra, the accused cannot as of right sought for examination of the complainant as his witness. Therefore, this Court needs to look into the averments in Ext.P2, which is the application filed by the accused under Section 311 Cr.P.C to see whether any basis is there to grant the relief sought. OP(Crl.).No. 129 of 2019 7 9. It is stated in Ext.P2 that the original complainant was an accomplice of one Smt.Sobhamoni. The specific defence taken by the accused in the prosecution was that one of the blank signed cheques given as security for a sum borrowed from Smt.Sobhamoni in the year 2012 was misused by the original complainant to launch the prosecution in question against the accused. O.S. No.585/2013 was filed by Smt.Sobhamoni. The complainant was already examined in the suit as PW2. During cross examination he pretended ignorance of his acquaintance with Smt.Sobhamoni. During examination of the accused in the prosecution on hand, the certified copy of the deposition of the complainant as PW2 in O.S No.585/2013 was attempted to be marked through him. But it was opposed for the reason that the petitioner/accused is not a party to O.S No.585/2013. In the above circumstance, the petitioner herein, the wife and representative of the original deceased complainant, was sought to be examined by the accused as his witness. OP(Crl.).No. 129 of 2019 8 10. Since the petitioner herein was brought on record to represent the complainant and continue the prosecution, her status in the prosecution is that of a complainant. Therefore, the dictums aforesaid will squarely be applicable in her case also. Therefore, the accused cannot examine the complainant as a witness of him. The trial court has allowed the application without going into the purpose of the examination sought for and in disregard of the dictums referred to supra. The application ought to have been dismissed by the trial court. Therefore, this Court is inclined to set aside Ext.P4 order. In the result, the Original Petition stands allowed. Ext.P4 order stands set aside. **Sd/-** **MARY JOSEPH** **JUDGE** ttb OP(Crl.).No. 129 of 2019 9 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 THE COPY OF THE COMPLAINT IN CC NO. 3362/2016** **EXHIBIT P2 TRUE COPY OF THE CMP NO. 14306/2018 FILED BY 2ND RESPONDENT. EXHIBIT P3 THE COPY OF THE OBJECTION FILED BY THE PETITIONER IN CMP NO. 14306/2018 EXHIBIT P4 THE COPY OF THE ORDER IN CMP NO. 14306/2018 DATED 14.02.2019**