Antony Rosario Fernando vs State Of Kerala
2021 Latest Caselaw 1725 Ker

  Crl.MC.19/21                     1

             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

                   THE HONOURABLE MR.JUSTICE V.G.ARUN

    MONDAY, THE 18TH DAY OF JANUARY 2021 / 28TH POUSHA, 1942

                        Crl.MC.No.19 OF 2021(B)

 AGAINST THE ORDER/JUDGMENT IN SC 330/2019 DATED 17-12-2020 OF
       ADDITIONAL DISTRICT COURT & SESSIONS COURT - VII,
                      THIRUVANANTHAPURAM


PETITIONER/S:

      1          ANTONY ROSARIO FERNANDO
                 AGED 39 YEARS
                 S/O.R.ANTONY SAAMY, RESIDING AT I/N/3,
                 BOOPALAYAPURA VEEDU, 4TH STREET, THOOTHUKUDI TALUK,
                 THOOTUKUDI, TAMIL NADU STATE.

      2          BINOY THOMAS,
                 AGED 44 YEARS
                 S/O.THOMAS, RESIDING AT MANICHIRAKKAL VEEDU,
                 PANDIPPARA P.O., THANKOMONY VILLAGE, IDUKKI
                 DISTRICT.

      3          T.N.GOPI,
                 AGED 68 YEARS
                 S/O.NEELAKANTAN, RESIDING AT MANICHIRAKKAL VEEDU,
                 PANDIPARA, 8TH MILE, THONDYPARAMBA, KALVARY MOUNT
                 P.O., THANKOMONY VILLAGE, IDUKKI TALUK, IDUKKI
                 DISTRICT.

                 BY ADV. SRI.J.R.PREM NAVAZ

RESPONDENT/S:

                 STATE OF KERALA
                 REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF
                 KERALA, ERNAKULAM, PIN-682032.

                 R1 BY ADDL.DIRECTOR GENERAL OF PROSECUTION

OTHER PRESENT:

                 ADV.C.K.SURESH (SR) FOR ADGP SURESH BABU THOMAS

     THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD              ON
11.1.2021, THE COURT ON 18.01.2021 PASSED THE FOLLOWING:
      Crl.MC.19/21                      2



                                                                       'C.R'

                                 V.G.ARUN, J.
                  -----------------------------------------------
                          CRL.M.C.No. 19 of 2021
                  -----------------------------------------------
                Dated this the 18th day of January, 2021

                                    ORDER

Petitioners are accused 1 to 3 in S.C.No.330 of 2019 on the files

of the Additional Sessions Judge-VII, Thiruvananthapuram. The

prosecution allegation is of the petitioners were found to be in illegal

possession of 6.36 kg of Hashish oil and currency worth Rs.6,72,500/-

and thereby having committed the offences punishable under Sections

20(b)(ii)C and Section 29 of the NDPS Act. The trial of the case has

commenced and the prosecution evidence is complete. The accused

were questioned under Section 313(1)(b) Cr.P.C. Thereafter, the case

was posted for defence evidence. At that juncture, Counsel for the

petitioners filed Annexures A2 and A3 witness lists and sought

issuance of summons to those witnesses. The Public Prosecutor filed

objections stating that the attempt was to protract the proceedings

and to cause annoyance to the witnesses. By Annexure A5 order, the

court below allowed the applications in part. The prayer to issue

summons to the sole witness in Annexure A2 and witness Nos.5, 7

and 8 in Annexure A3 was rejected. The prayer in this Crl.M.C is to

quash Annexure A5 to the extent the order rejects the prayer for

issuance of process to the only witness in Annexure A2 and three of

the witnesses in Annexure A3.

2. A perusal of the impugned order shows that the learned

Sessions Judge found that the sole witness in Annexure A2 of being the

wife of PW4, an independent witness, her testimony is not necessary to

prove the defence plea. That, the attempt of the accused is not bona

fide and the witness is cited for the purpose of causing annoyance to

PW4. As far as witness Nos.5, 7 and 8 in Annexure A3 are concerned, it

was found that the accused can get the CCTV footages sought to be

produced through witness No.5, by summoning the person in charge of

the establishment where the alleged video recording had taken place.

The court also found that witness Nos.7 and 8 are unnecessary to

prove the defence plea and their examination would only result in

procrastination.

3. Heard Sri.J.R.Prem Navaz for the petitioners and Sri.C.K.Suresh

for the respondents.

4. Learned counsel for the petitioners assailed Annexure A5 order

on the ground that the order defeats the right of the accused to

adduce evidence. It was contended that under Section 233(3) Cr.P.C it

is obligatory for the Court to issue process to any witness cited by the

accused, unless the court is satisfied that the application for issuance

of process is filed for the purpose of vexation or delay or for defeating

the ends of justice. In support of this contention, reliance was placed

on the decision in Ronald v. State of West Bengal [AIR 1954 SC

455]. It is submitted that the Judge cannot refuse to issue process to a

defence witness on the premise that examination of such witness

would cause annoyance to a prosecution witness. According to the

learned counsel, no reason is stated for the refusal to issue process to

witness Nos.7 and 8 in Annexure A3 and the reason stated for not

summoning witnessNo.5 is unsustainable.

5. The learned Senior Public Prosecutor countered the

submissions and submitted that adequate reasons are stated in the

impugned order and that courts have to consider the gravity of the

offences alleged against the accused and the purpose behind

examining a particular witness. The attempt of the accused being only

to protract the proceedings by summoning witnesses having no

connection with the alleged incident or the investigation, the learned

Sessions Judge was justified in issuing Annexure A3 order. Reliance is

placed on the decisions in Arivazhagan v. State [2000 KHC 537/

(2000)3 SCC 328] and Santhosh Kumar v. State of Kerala [2016(5)

KHC 709].

6. For answering the issue involved, it is necessary to have a look

at Section 233(3) Cr.P.C, which reads as under;

"233. Entering upon defence.

(1) Where the accused is not acquitted under section 232, he shall be called upon to enter on his defence and adduce any evidence he may have in support thereof.

(2) If the accused puts in any written statement, the Judge shall file it with the record.

(3) If the accused applies for the issue of any process for compelling the attendance of any witness or the production of any document or thing, the Judge shall issue such process unless he considers, for reasons to be recorded, that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice."

7. A careful reading of the Section shows that the court is bound

to issue process for compelling the attendance of witnesses, unless the

court is of the opinion that the application for summoning the

witnesses ought to be refused on the ground that it is made for the

purpose of vexation or delay or for defeating the ends of justice. The

adversarial system confer the accused with the indefeasible right to

cross examine the prosecution witnesses and to let in defence

evidence. This indefeasible right cannot be denied lightly. The right to

fair trial includes fair and proper opportunities allowed by law to prove

the innocence of the accused. Adducing evidence in support of the

defence is such an opportunity. Denial of that opportunity means

denial of fair trial. It is essential that rules of procedure designed to

ensure justice should be scrupulously followed.

8. The petitioners filed Annexures A2 and A3 for the purpose of

letting in defence evidence. The request for summoning the witnesses

was made by the accused immediately after their examination under

Section 313 Cr.P.C. Therefore there was no delay on the part of the

petitioners. It is submitted that the witness named in Annexure A2 is a

crucial witness and is sought to be examined to disprove the version

of PW4 that he was present at the site when seizure of the contraband

and arrest took place. If that be so, the court cannot refuse to summon

that witness on the premise that her examination would cause

annoyance to PW4. Possibility of annoyance to the witness sought to

be examined, or to prosecution witness already examined, is not a

ground for refusing to summon that witness.

9. Witness No.5 in Annexure A2 is sought to be summoned for

production of the CCTV footage recorded at an establishment named

Capital Fuels and Jesus Fisheries, Kattapana. Whether the witness

sought to be summoned is the custodian of the CCTV footage and

competent to give evidence will come to light only on his examination.

The trial court cannot pre-empt the examination of a witness on an

assumption that the witness may not be in possession of the document

sought to be summoned. As regards witness Nos.7 and 8, absolutely no

reason is stated for terming them as unnecessary witnesses or the

reason for finding that their examination will result in procrastination.

10. In this context it will be apposite to read the contextually

relevant portion of the Apex Court's judgment in Ronald Wood

Mathams v. State of W.B. [AIR 1954 SC 455] extracted hereunder:

"10. It must be conceded that the evidence on record tends to establish a strong case against the appellants. But then, that is a case which they are entitled to rebut, and if, as was held by the Federal Court, Exhibit 27 series would furnish good material for rebutting that case, the Court, by declining to issue process for the examination of the witnesses connected with those documents, has deprived the appellants of an opportunity of rebutting it. Whatever one may think of the merits of the appellants' contention, they cannot be convicted without an opportunity being given to them to present their evidence, and that having been denied to them, there has been no fair trial, and the conviction of the appellant cannot stand. The result may be unfortunate. But it is essential that rules of procedure designed to ensure justice should be scrupulously followed, and Courts should be jealous in seeing that there is no breach of them. The appeals will be allowed, and the appellants acquitted."

11. The decision in Arivazhagan was rendered in the context of

the accused having submitted a list containing 267 defence witnesses.

The trial court did not allow the accused to examine all the persons

mentioned in the list and directed him to limit the number to the

minimum necessary. Since the accused was not willing to reduce the

number, he approached the High Court. Having failed to obtain the

expected relief, the accused moved the Supreme Court. Dilating on

the right of an accused to examine myriad of witnesses and that of the

court to prune down the list, the court held as follows:

"17. The purpose of furnishing a list of witnesses and documents to the court before the accused is called upon to enter on his defence is to afford an occasion to the court to peruse the list. On such perusal, if the court feels that examination of at least some of the persons mentioned in the list is quite unnecessary to prove the defence plea and the time which would be needed for completing the examination of such witnesses would only result in procrastination, it is the duty of the court to shortlist such witnesses. We may also add that if the court feels that the list is intended only to delay the proceedings, the court is well within its powers to disallow even the whole of it."

It is pertinent to note that the decision was rendered in the context of

Section 7(a) of the Prevention of Corruption Act, which envisages early

disposal of cases and Section 22 which prescribes the procedure for

submission of list of witnesses by an accused facing trial for offences

under the Act. Further, the following observation made by the

Honourable Supreme Court, while refusing to interfere with the orders

under challenge assumes relevance;

"20. Nevertheless, we would add -- after the appellant completes his evidence in accordance with the permission now granted as per the impugned orders, it is open to the appellant to convince the trial court that some more persons need to be examined in the interest of justice, if the appellant then thinks that such a course is necessary. The trial court will then decide whether it is essential for a just decision of the case to examine

more witnesses on the defence side. If the Court is so satisfied, the Special Judge can permit the appellant to examine such additional witnesses the examination of whom he considers essential for a just decision of the case or he can exercise the powers envisaged in Section 311 of the Code in respect of such witnesses. We cannot, at present, oversee the situation as to how the trial court could then reach such a satisfaction. Hence we leave it to the trial court to do the needful at the appropriate stage."

12. In Santhosh Kumar, this Court did observe that for the

purpose of proving a report, Chief Editor of the newspaper need not be

examined, but went on to hold that while the court has discretion to

determine whether the application for examination of witnesses filed

by the accused is for the purpose of vexation or delay or for defeating

the ends of justice, in all other cases, the Judge is expected to issue

process.

13. The above being the position, the decisions in Arivazhagan

or Santhosh Kumar cannot be understood to have held that the trial

Judges have absolute discretion to prune or reject the list of witnesses

submitted by the accused.

14. Going by the plain meaning of the words in Section 233(3)

and the settled legal position, the trial court is empowered to interfere

with only when the court is convinced that the application seeking

issuance of summons is submitted for the purpose of vexation or delay

or for defeating the ends of justice. In my considered opinion, the

petitioner cannot be attributed with any such intention in having filed

Annexures A2 and A3 and hence the interference with the list as per

Annexure A5 order cannot be sustained.

In the result, the Crl.M.C is allowed. Annexure A5 order is

quashed and the Additional Sessions Judge-VIII, Thiruvananthapuram is

directed to issue process to the witnesses named in Annexures A2 and

A3.

Sd/-

V.G.ARUN, JUDGE

vgs

APPENDIX PETITIONER'S/S EXHIBITS:

ANNEXURE A1 THE TRUE COPY OF THE STATEMENT FILED BY THE 3RD PETITIONER/3RD ACCUSED BEFORE THE SESSIONS JUDGE.

ANNEXURE A2 THE TRUE COPY OF THE APPLICATION FILED BY THE PETITIONERS 1 AND 2/ACCUSED 1 AND 2 UNDER SECTION 233(3) OF THE CODE ALONG WITH THE WITNESS LIST.

ANNEXURE A3 THE TRUE COPY OF THE APPLICATION FILED BY THE 3RD PETITIONER/3RD ACCUSED UNDER SECTION 233(3) OF THE CODE ALONG WITH THE WITNESS LIST.

ANNEXURE A4 THE TRUE COPY OF THE OBJECTION FILED BY THE LEARNED PUBLIC PROSECUTOR AGAINST ANNEXURE A2 AND A3.

ANNEXURE A5 THE TRUE COPY OF THE COMMON ORDER DATED 17.12.2020 IN CRL.M.P.NO.1559 OF 2020 AND 1560 OF 2020 IN S.C.NO.330 OF 2019.