Jayesh J. Kumar v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS MONDAY, THE 27[TH] DAY OF MAY 2024 / 6TH JYAISHTA, 1946 CRL.MC NO. 3589 OF 2024 ``` ``` CRIME NO.34/2015 OF ERNAKULAM SOUTH POLICE STATION, ERNAKULAM ``` ``` AGAINST THE ORDER/JUDGMENT DATED IN CC NO.784 OF 2017 OF ADDITIONAL CHIEF JUDICIAL MAGISTRATE (E&O),ERNAKULAM ``` ``` ...................................... ``` ## **`PETITIONER/PETITIONER/1ST ACCUSED :`** ``` JAYESH J. KUMAR AGED 45 YEARS S/O. JANARDANAN PILLA MALIYEKKAL (H), KARIKULAM KARA PAZHAVANGADY DESAM, RANNI TALUK PATHANAMTHITTA DISTRICT, PIN – 689 672. BY ADV C.G.PREETHA ``` ## **`RESPONDENT/RESPONDENT/COMPLAINANT :`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA ERNAKULAM, PIN - 682031 ``` ## **`SREEJA V. (PP)`** ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 27.05.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` ``` CRL.MC 3589/2024 ``` ``` 2 ``` BECHU KURIAN THOMAS, J ......…............................................. Crl.M.C.No.3589 of 2024 …................................................ Dated this the 27[th] day of May, 2024 ## ORDER Petitioner challenges the common order dated 15.03.2024 in CMP No.764/2024 and CMP No.765/2024 in C.C. No.784/2017 on the files of the Additional Chief Judicial Magistrate (Economic Offences) Court, Ernakulam. The impugned order is produced as Annexure A5. 2. In CMP No.764/2024 petitioner had sought for a direction to issue a summons to the Registrar to produce the certified copies of the certificate of registration and memorandum of the Society of St.Daniel Christian Minority Educational Society and St.Job Christian Minority Educational Society, while in CMP No.765/2024 petitioner sought for issuance of summons to the Director, University Academic Audit Cell, JNT University, Hyderabad to produce the certified copy of the affiliation certificate issued to Adusumilli Vijaya College of Engineering and Research Centre and Adusumilli Vijaya Institute of Technology and Research Centre. By the impugned order, the learned Magistrate dismissed both the applications and hence this petition under Section 482 ``` CRL.MC 3589/2024 ``` ``` 3 ``` of the Cr.P.C. 3. Petitioner is the 1[st] accused in C.C. No.784/2017 and is being prosecuted for the offences punishable under Sections 406, 419 and 420 read with Section 34 of the Indian Penal Code, 1860. After the prosecution evidence was closed on 15.6.2023, the case was posted to 14.11.2023 for defence evidence. At that stage, petitioner filed applications for summoning the defence witnesses and for the production of the document. However the applications were dismissed by the impugned order. 4. I have heard Smt. C.G. Preetha, the learned counsel for the petitioner as well as Smt.Sreeja V., the learned Public Prosecutor. 5. In a criminal trial, the defence is entitled by law to adduce its evidence. It is a facet of fair trial that the defence should be granted a reasonable opportunity for defending the case against him. The nature of evidence to be let in and its relevancy are all matters which will have to be decided at the stage of rendering the judgment. Though Section 243 Cr.P.C provides that the court shall issue process to the defence witnesses unless it considers such application should be refused on the grounds of an attempt to delay the trial or if the court is satisfied that ``` CRL.MC 3589/2024 ``` ``` 4 ``` granting such opportunity would defeat the ends of justice. Refusing opportunity to the accused to adduce his defence evidence must be an exception. Further, while considering the question of granting opportunity to the defence to adduce evidence, it is generally not justified for the court to come to a conclusion that the evidence proposed to be adduced is not relevant. The accused cannot be called upon to divulge his defence at any stage of the proceedings and he is also entitled to take inconsistent stands. 6. In Ronald Wood Mathams and Others v. State of West Bengal (AIR 1954 SC 455) and Zahira Habibulla H. Sheikh and Another v. State of Gujarat - and Others (2004) 4 SCC158, the Supreme Court has held that the rules of procedure are designed to ensure justice and must be scrupulously complied with. It was also observed that courts must be zealous in ensuring that there is no breach of such procedure. 7. Similarly, in the decision in Santhosh Kumar vs. State (2016 (5) KHC - 709) it was observed by this Court that “the rejection of the application on the ground that the summoning of defence witnesses will only serve to waste precious time and to delay the proceedings cannot be accepted. Fair trial is the bedrock of criminal jurisprudence and it is the most ``` CRL.MC 3589/2024 ``` ``` 5 ``` fundamental duty of the Court to ensure that such fairness is not hampered or curtailed in any manner. The Court should have the interests of the victim, the accused and of the society in mind and under no circumstances can the Court deprive the parties fair and equal opportunities. In a case of instant nature, the accused should not be permitted to later raise clamour and contend that when the prosecution was given a free reign and permitted to summon as many as 77 witnesses, equal opportunity was denied to them. The Apex Court has held that the right to a fair trial is a constitutional as well as a human right. If an accused is not acquitted under S.232 of the Code on the ground of no evidence, it is mandatory that he should be called upon to enter on his defence and permitted to adduce oral and documentary evidence of his choice. If an application is filed, the Court should not be reluctant to issue process and secure the presence of the witnesses, documents or things. The application of the accused for issue of process for compelling the attendance of any witness or the production of any document or thing cannot be rejected by the Court as unnecessary. The discretion of the Court to reject such an application under S.233(3) is only on the ground that it is made for the purpose of vexation or delay ``` CRL.MC 3589/2024 ``` ``` 6 ``` or for defeating the ends of justice. Subject to those restrictions, the accused is having the unfettered right to have any witness, document or thing summoned. In other words, the choice of letting in evidence is on the prisoner and it cannot be regarded as an empty formality. Umpteen are the cases in which the accused have been acquitted on the ground of prejudice which has resulted in denying an opportunity to advance his case.” 8. However, once the accused has entered upon his defence, then the Magistrate can, in his discretion refuse the application on the ground of delay or defeating the ends of justice. In the instant case, though the Magistrate has, in the impugned order observed that the attempt of the accused is to delay the trial, on a perusal of the impugned order it is evident that the defence had not yet closed its evidence. Though it is true that on an earlier occasion, the accused had filed a petition to summon the Regional Officer of All India Council for Technical Education, Hyderabad to produce a certified copy of the approval for the academic year 2014-2015 with respect to the same two colleges and the learned Magistrate had come to the conclusion that at that time the accused had no proposal to examine the two witnesses he now wants to ``` CRL.MC 3589/2024 ``` ``` 7 ``` examine, the omission to earlier put forward the need to examine the witness now sought to be examined by itself cannot be a reason to assume that the present applications are not bonafide. 9. Circumstances may arise when the witness examined by the accused was not sufficient to justify the nature of the defence being taken up in the case and therefore additional witnesses could be examined. Though the attempt of the accused to drag the matter could be prevented by necessary precautionary steps, denying the opportunity to adduce the defence evidence cannot be regarded as such an attempt, especially when the case is still at the stage of defence evidence. 10. Be that as it may, the concern expressed by the learned Magistrate in the impugned order cannot be completely ignored and therefore when summons is issued for the appearance of witness necessarily the accused must examine the said witnesses on the date of appearance itself without obtaining adjournments and a specific date can be prescribed by the court. 11. In the above circumstances, this Court is of the view that the impugned order refusing to summon the witnesses and the documents sought for by the petitioner in CMP No.764/2024 and CMP No.765/2024 ``` CRL.MC 3589/2024 ``` ``` 8 ``` is erroneous and is liable to be interfered with. 12. Accordingly, the order dated 15.3.2024 in CMP No.764/2024 and CMP No.765/2024 in C.C. No.784/2017 on the files of the Additional Chief Judicial Magistrate (Economic Offences) Court, Ernakulam is hereby set aside. The learned Magistrate is directed to issue summons to the witnesses mentioned in the aforesaid two applications and on the date of their appearance itself, they shall be examined without fail. Under no circumstances shall the petitioner seek any adjournment for examination of those witnesses. Since there are connected cases where the same witnesses are required to be examined, the examination in all those cases shall also be completed without unnecessary delay and on a day to day basis preferably. Crl.M.C is allowed as above. sd/BECHU KURIAN THOMAS JUDGE AMV/05/06/2024 ``` CRL.MC 3589/2024 ``` ``` 9 ``` ## **`APPENDIX OF CRL.MC 3589/2024`** ## **`PETITIONER ANNEXURES`** |**`ANNEXURE A1`**|**`THE TRUE COPY OF THE COMPLAINT IN C.C.NO 784`**| |---|---| ||**`OF 2017 FILED BY THE DEFACTO COMPLAINANT`**| ||**`BEFORE THE HONOURABLE ADDITIONAL CHIEF`**| ||**`JUDICIAL MAGISTRATE (EO), ERNAKULAM DATED`**| ||**`06.01.2015.`**| |**`ANNEXURE A2`**|**`THE TRUE COPY OF THE FIR IN CRIME NO 34 OF`**| ||**`2015 REGISTERED BY THE ERNAKULAM TOWN SOUTH`**| ||**`POLICE STATION, ERNAKULAM DATED 09.01.2015`**| |**`ANNEXURE A3`**|**`THE TRUE COPY OF THE APPLICATION IN C.M.P.NO`**| ||**`764 OF 2024 IN C.C.NO 784 OF 2017 FILED BY`**| ||**`THE PETITIONER ON THE FILE OF HONOURABLE`**| ||**`ADDITIONAL CHIEF JUDICIAL MAGISTRATE (EO),`**| ||**`ERNAKULAM DATED 08.02.2024.`**| |**`ANNEXURE A4`**|**`THE TRUE COPY OF THE APPLICATION IN C.M.P.NO`**| ||**`765 OF 2024 IN C.C.NO 784 OF 2017 FILED BY`**| ||**`THE PETITIONER ON THE FILE OF HONOURABLE`**| ||**`ADDITIONAL CHIEF JUDICIAL MAGISTRATE (EO),`**| ||**`ERNAKULAM DATED 08.02.2024.`**| |**`ANNEXURE A5`**|**`CERTIFIED COPY OF THE COMMON ORDER IN`**| ||**`C.M.P.NO.764/2024 & C.M.P.NO.765/2024 IN`**| ||**`C.C.NO.784/2017 PASSED BY THE HONOURABLE`**| ||**`CHIEF JUDICIAL MAGISTRATE (ECONOMIC OFFENCES)`**| ||**`COURT, ERNAKULAM DATED 15.03.2024.`**| TRUE COPY