Sasi Tharoor v. State of Kerala and Joy Kaitharath

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE S.S.SATHEESACHANDRAN** ## **WEDNESDAY, THE 14TH DAY OF NOVEMBER 2012/23RD KARTHIKA 1934** ## **Crl.MC.No. 3108 of 2011 ( )** **------------------------------------CMP. NO.1977/2011 IN CC.1190/2009 of ADDL.CHIEF JUDICIAL MAGISTRATE COURT, ERNAKULAM.** **.......** **PETITIONER(S)/ACCUSED:** **-------------------------------------** **SASI THAROOR, AABC, THEJESWINI ANNEX, TECHNO PARK THIRUVANANTHAPURAM-695 581.** **BY ADVS.SRI.K.RAMAKUMAR (SR.) SMT.SMITHA GEORGE** ## **RESPONDENT(S)/STATE & COMPLAINANT:** **-------------------------------------------------------------** **1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM-682 031.** **2. JOY KAITHARATH, GENERAL SECRETARY, STATE HUMAN RIGHTS PROTECTION CENTRE VELLIKULANGARA.P.O., THRISSUR-680 698.** **R1 BY PUBLIC PROSECUTOR SMT.R.REMA R2 BY ADV. SRI.JOHN K.GEORGE** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 05/11/2012, THE COURT ON 14/11/2012 PASSED THE FOLLOWING:** **tss** ## **CRMC. NO.3108/2011** ## **APPENDIX** ## **PETITIONER'S ANNEXURES** **A:- COPY OF THE COMPLAINT DTD. 17.1.2009 FILED BY THE 2ND RESPONDENT BEFORE THE ADDL.CHIEF JUDICIAL MAGISTRATE COURT, ERNAKULAM.** **B;- COPY OF THE PETITION DTD. 23.7.2011 FILED BY THE PETITIONER BEFORE THE ADDL.CHIEF JUDICIAL MAGISTRATE COURT, ERNAKULAM.** **C:- COPY OF THE ORDER DTD. 31.8.2011 IN CMP. 1977/2011 IN CC. 1190/2009 ON THE FILE OF THE ADDL. CHIEF JUDICIAL MAGISTRATE COURT, ERNAKULAM.** ## **RESPONDENT'S ANNEXURES** **NIL** ## **//TRUE COPY//** **P.A. TO JUDGE** **tss** **“C.R.”** ## **S.S.SATHEESACHANDRAN, J.** **-----------------------------------------------** Crl.M.C.No.3108 of 2011 **----------------------------------------------Dated this the 14[th] day of November, 2012** ## **O R D E R** Annexure C order passed by the Additional Chief Judicial Magistrate, Ernakulam, is challenged in the above petition invoking Section 482 of the Code of Criminal Procedure, for short, the 'Code'. 2. Petitioner is a member of Parliament. Annexure A complaint was filed by the 2[nd] respondent before the Additional Chief Judicial Magistrate, Ernakulam, against the petitioner as the accused, to prosecute him for the offence punishable under Section 3 of the Prevention of Insults of National Honour Act, 1971 [for short 'the Act']. The gist of the accusation is that at a time when the petitioner contested the election Crl.M.C.No.3108 of 2011 :: 2 :: to the Parliament, participating in a function organised by a Bank at Le Meridian Convention Centre, Ernakulam, on 16.12.2008, while the national anthem was sung, he disrupted the singing of the anthem and instructed all those who attended the programme to sing the national anthem keeping the right hand on the left chest, as followed in singing the national anthem of United States of America by the people of that country. In the meeting, singing of national anthem disrupted by the petitioner commenced afresh, and many followed his instruction. A few did not follow it. Complainant who claims to have attended the meeting did not follow the instruction of the accused. Petitioner had intentionally prevented the singing of national anthem, and, thus, committed the offence under Section 3 of the aforesaid Act, is the case of the complainant. Cognizance of the offence taken on Crl.M.C.No.3108 of 2011 :: 3 :: the complaint and process ordered to the petitioner, the case numbered as C.C.No.1190 of 2009 is on the file of the Additional Chief Judicial Magistrate. 3. After appearance of the petitioner/ accused, enquiry under Section 244 (1) of the Code proceeded since the offence alleged has to follow the trial of a warrant case. After evidence of the complainant examining him and his witnesses, giving opportunity to the accused to crossexamine them, was over, petitioner moved an application through his counsel under Sections 91 and 245 of the Code read with Section 165 of the Indian Evidence Act. That application was filed to issue summons to a bank official to produce a compact disk, in which, according to him, entire function was recorded through electronic device. Annexure B is copy of that petition. Learned magistrate dismissed that Crl.M.C.No.3108 of 2011 :: 4 :: petition vide Annexure C order holding that at that stage accused cannot seek production of any document to consider whether a charge is to be framed against him or not. That order is challenged in the present petition by the accused. 4. I heard learned senior counsel Sri.K.Ramakumar, who appeared for the petitioner, and learned counsel Sri.John K.George for the 2[nd] respondent/complainant. 5. The accused has no right to produce or seek any material at the pre-trial stage is not disputed by the learned senior counsel but it is contended that he has every right to ask the court to invoke the powers under Section 165 of the Evidence Act to call for a material where the production of such material would conclude that the accusation made against him is totally false and framing charge against him does not arise. Crl.M.C.No.3108 of 2011 :: 5 :: Learned senior counsel relied on some judicial pronouncements, namely, In re Dr.Raghotham {AIR 1963 Andhra Pradesh 362}, Sathish Mehra v. Delhi Administration {1996 (9) SCC 766}, Om Parkash Sharma v. CBI, Delhi {2000(5) SCC 679}, State of M.P. v. Mohanlal Soni {2000 (6) SCC 338} and State of Orissa v. Debendra Nath Padhi {2005(1) SCC 568} as authorities supporting the proposition canvassed of. Reliance was also placed by counsel on the decisions rendered in the following reported cases namely, Dharambir and others v. Central Bureau of Investigation {2008 (2) KHC 488 (Del.) SN}, Ramachandran v. State of Kerala {2008 (4) KHC 336}, Rukmini Narvekar v. Vijaya Satarekar {2008 (14) SCC 1}, Perumal A.M. v. M/s.Star Tours and Travels (India) Ltd. And another {2010 (3) KHC 174 SN} and Velusamy v. Palanisamy {2011 (2) KLT SN 19 SC} some of them to contend for the acceptability of recordings Crl.M.C.No.3108 of 2011 :: 6 :: collected through electronic devices in evidence, and others over empowerment of the court under Section 165 of the Evidence Act. 6. I do not find any merit in the challenge raised against Annexure C order passed by the magistrate with reference to the aforesaid decisions, among which the decision rendered by the three Judges of the Apex Court in Debendranath Pathi's case (2005 (1) SCC 568) spells out in unmistakable terms that the accused cannot at the stage of framing of charge invoke Section 91 to seek production of any document to prove his innocence. In fact, the decision rendered in Satish Mehra's case, cited supra, expressing a different view has led to the reference and consideration of that question by a larger bench, and it was answered affirming that so far as the accused is concerned “his entitlement to seek order under Section 91 would ## Crl.M.C.No.3108 of 2011 :: 7 :: ordinarily not come till the stage of defence”. Over his entitlement to invoke Section 91 of the Code at the initial stage of framing of charge, it has been held, he has no such right 'since the defence of the accused is not relevant at that stage'. Whatever be the observations made by the High Court of Andhra Pradesh in In re Dr.Raghutham's case, cited supra, with reference to Section 165 of the Evidence Act, expressing a contrary view, it cannot hold good in view of the judicial pronouncement rendered by the Apex Court in Debendranath Pathi's case. It is fallacious to contend that even where the accused has no right to seek production of a document he could still seek the aid of the court to exercise its powers under Section 165 of the Evidence Act for production of document/ material desired by him, to prove his innocence at the pre-trial stage. Complainant has a Crl.M.C.No.3108 of 2011 :: 8 :: valuable and indefeasible right to have the enquiry on his complaint in accordance with the procedure prescribed by the Code, to insist upon the court to decide the question whether there is ground for presuming that the accused has committed an offence, to frame charges against him, on the basis of materials tendered by him in the pre-trial stage, and not to test such materials by any document or material produced or summoned by the accused or court. Following of any procedure, in a case demanding trial as a warrant case, other than the one envisaged under Sections 244 and 246 of the Code, as if the court at that stage can invoke Section 165 of the Evidence Act to summon any document sought for by the accused to prove his innocence would vitiate the entire proceeding, and, that, which is repugnant to the procedure provided by the Code, cannot be resorted to. Crl.M.C.No.3108 of 2011 :: 9 :: 7. The evidence of the complainant in the enquiry under Section 244 (1) of the Code is over in the present case. His evidence cannot be tested with reference to a document sought to be summoned by the accused to prove his innocence. Compact disc recorded in the function through electronic device would disprove the case of the complainant is the case of the accused seeking its production contending that the court has the power under Section 165 of the Evidence Act to do so. Complainant has a case that such CD is doctored. Irrespective of the question whether it is doctored or not, the court has to decide whether there is sufficient ground to proceed against the accused to frame charge against him on the materials tendered by the complainant in the enquiry under Section 244 (1) of the Code, and not with reference to any document produced or sought to be produced by the accused with the Crl.M.C.No.3108 of 2011 :: 10 :: assistance of the court. Where an opinion is to be formed over the question of framing of charge on the materials placed by the complainant in the enquiry under Section 244 (1) of the Code, with the accused at that stage having no right to produce or call for production of any document, he cannot ask the court to invoke Section 165 of the Evidence Act, at that stage, to prove his innocence. 8. Learned senior counsel has contended before me that procedure is only a handmaid of justice. To advance the ends of justice there could be deviation when there is no bar as such interdicting the accused from seeking the assistance of the court to invoke its powers under Section 165 of the Evidence Act for production of a document for his innocence, is the submission. I do not agree. Where a procedure is prescribed in recording of evidence Crl.M.C.No.3108 of 2011 :: 11 :: to decide one or other question in a proceeding, and, an opinion whether any further proceeding against the person proceeded has to be formed solely on the materials tendered by the prosecuting party, who alone is permitted to lead evidence at that stage, there could be no deviation from such procedural prescription, not only that it is not sanctioned, but, it would prejudicially affect the right of the party whose case at that stage has to be examined on materials tendered by him and, that alone. Whether a deviation from the procedure following a different course than what is prescribed would only result in irregularity or an illegality as such, has also to be looked into with reference to the rights of the parties governed by the Procedural Code. At the pretrial stage complainant alone has been given right to lead evidence in support of the prosecution, and, on ## Crl.M.C.No.3108 of 2011 :: 12 :: the materials tendered by him, the magistrate has to form an opinion whether there is ground to presume that the person named as accused has committed any offence which he is competent to try and adequately punish to proceed with framing of charge against him. The accused proceeded against has no right at that stage to bring in materials to prove his innocence, nor even to canvass that materials sought to be introduced by him would show that no framing of charge will be called for. What he cannot do under the procedure prescribed cannot be allowed to be done seeking the assistance of the court invoking its powers under Section 165 of the Evidence Act to summon the document requested by him, to prove his innocence. The magistrate cannot invoke Section 165 of the Evidence Act to summon any document to test the materials tendered by the complainant, to decide Crl.M.C.No.3108 of 2011 :: 13 :: whether any charge is to be framed against the accused. Learned senior counsel has adverted to documents/materials which could be taken judicial notice by the court to contend that in a proceeding at pretrial stage also that can be done. A court can take judicial notice of facts covered by Section 57 of the Evidence Act at any stage of a proceeding stands on an entirely different footing. It cannot be canvassed by the accused at a pretrial stage to seek the aid of the court to summon a document invoking Section 165 of the Evidence Act, to prove his innocence. At a pre-trial stage the court is not entering any finding, but, on the materials tendered by the complainant in support of the prosecution only forming an opinion whether there is ground for presuming that the accused has committed any offence, to proceed with trial framing charge against him. That cannot be decided on other Crl.M.C.No.3108 of 2011 :: 14 :: materials produced or summoned by the accused. Invoking of Section 165 of the Evidence Act by the court at that stage to order production of any document on the request so made by the person proceeded as accused is impermissible. In respect of facts which court has to take judicial notice of, covered under Section 57 of the Evidence Act, where a party calls upon the court to take such judicial notice, it may refuse to do so until such person produces any such book or document as it may consider necessary to enable him to do so. The court is empowered to put any question at any time about any fact relevant or irrelevant to any witness or any parties and also production or any document or thing, envisaged under Section 165 of the Evidence Act in no way assist an accused to call upon the court at the pretrial stage to summon a document, to prove his innocence. Any such procedure followed, will Crl.M.C.No.3108 of 2011 :: 15 :: militate against the procedure covered by Section 244 and 246 of the Code and will render the entire proceedings vitiated as illegal. True, irregularity, error or omission during trial or in an enquiry or other proceedings under the Code, normally, is not sufficient to interfere with any finding, sentence or order passed by a court unless a failure of justice has been caused by such defect. However, where a different procedure is followed violating the procedure prescribed by the Code it is not a case of irregularity but of vitiating the enquiry or trial as a whole. In Pulukuri Kottaya and others v. Emperor {AIR (34) 1947 PC 67} what has been stated by the Privy Council on the above aspect has withstood the sands of time, and still holds the field. His Lordship Justice Sir John Beaumont who rendered the above decision has stated thus: Crl.M.C.No.3108 of 2011 ## :: 16 :: “When a trial is conducted in a manner different from that prescribed by the Code, the trial is bad, and no question of curing an irregularity arises; but if the trial is conducted substantially in the manner prescribed by the Code, but some irregularity occurs in the course of such conduct the irregularity can be cured under S.537, and none the less so because the irregularity involves, as must nearly always be the case, a breach of one or more of the very comprehensive provisions of the Code. A trial, therefore, is valid notwithstanding the breach of S.162” (Underlining supplied) 9. True, till the enquiry is over, charge has been framed, and the plea of the accused is recorded, the trial does not commence. However, where the enquiry is regulated by the prescriptions under the Code how it has to be conducted and a duty is cast upon the magistrate to ascertain whether there is anything that the person accused ought to be called upon to answer Crl.M.C.No.3108 of 2011 :: 17 :: on the materials produced by the prosecution, that alone, what has been stated about a trial conducted in a different manner prescribed by the Code, that it is an incurable irregularity vitiating the trial as a whole is applicable to a case in which enquiry has been conducted in a different manner than what is prescribed by the Code. Annexure B application has been rightly and correctly turned down by the magistrate. Challenge against Annexure C order has no merit. Petition is dismissed. Sd/- **(S.S.SATHEESACHANDRAN) JUDGE** **sk/-** ## **//true copy//**