Prosecution Witness Cross-Examined By Accused Cannot Be Compelled To Appear As Defence Witness: Kerala High Court Upholds Section 233(3) Of The Code Of Criminal Procedure

CAUSE TITLE:
Selvaraj Vs. State of Kerala.

DATE OF ORDER:
16th September, 2021.

JUDGE(S):
Justice K. Haripal.

PARTIES:
Petitioner: Selvaraj.
Respondent: State of Kerala.

SUBJECT

The Hon’ble Kerala High Court enforced the importance of Section 233 (3) of the Code of Criminal Procedure.

IMPORTANT PROVISIONS

Code of Criminal Procedure

• Section 223(3) - Issue of any process for compelling the attendance of any witness or the production of any document.
• Section 482- Saving of the inherent powers of the High Court.

BRIEF FACTS

• There are two Crl. M.C. in this case i.eCrl. M.C. No. 3532/2021 and Crl. M.C No. 3535/2021. The petitioner (Mr. Selvaraj) is same in both the cases. He was firstly investigated for crime no. 490/2012 registered in Kanjiramkulam Police Station, Thiruvananthapuram. On top of that, he was accused in SC. 368/ 2014.
• The crime no. 490/2012 was a case registered alleging the crime which took place on 27.10.2012. There are ten accused in the crime and it is alleged that they formed an unlawful assembly for prosecuting a common object. They murdered one Christudas and one Antony while causing injury to three others. All the accused belonged to the same family. Consequently, a case was registered under Section 143, 147, 341, 324, 307, 302 r/w 149 of IPC.
• According to the statements given by the petitioner, the defence had fully participated in completing the trial even during the pandemic. But the prosecution evidence was completed on 22 December, 2020.
• The learned Additional Sessions Judge adjourned the case 15 times to record the statements of the accused under Section 313 of the Cr.P.C. Finally all the statements were recorded on 23 July, 2021 and the case was posted for enquiry under Section 232 of the Cr.P.C. on 26 July, 2021.
• The petitioner filed CMP Nos. 86/2021 and 87/2021.
• CMP Nos. 86/2021 was filed under Sections 233(3) and 91 of the Cr.P.C. for issuing summons to Dy.S.P. of the Crime Branch CID, HHW-1, Jawahar Nagar, Kawdiar for producing a report in file No. 169/CB/HHW-1/SU/15 and statement of all witnesses recorded in file No. D1/5484/CR/2015 dated 26 March, 2015.
• CMP Nos. 87/2021 was filed for issuing summons to three witnesses; Sri. S. Rafeek, Deputy Superintendent of Police, Crime Branch CID, HHW-1, Thiruvananthapuram and two medical officers for producing documents and adducing oral evidence. The purpose is to prove further investigation report submitted by them.
• There was no dispute with regard to the summoning of the two medical officers.
• By Annexure- A2 order of 30 July 2021, the learned Additional Sessions Judge allowed CMP. 86/2021 in part. He also permitted to summon the two medical officers.
• However, the petition to summon Sri. S. Rafeek was rejected on the subject that no further investigation was conducted by him and no such report was available before the Court. Even statements of such witnesses as part of further investigation was also not available.
• CMP No. 87/2021 was also dismissed.

QUESTIONS RAISED

• Whether there was any “further investigation” conducted?
• Whether the prosecution witness which is cross examined by the accused can be treated as defence witness?

ARGUMENTS ADVANCED BY THE APPELLANT

• The learned counsel for the petitioner urged that Section 172(3) of the Cr.P.C. is not applicable in the facts of this case.
• The petitioner also stated that the report given by the said Rafeek, Dy.S.P. and the previous statements of some of the prosecution witnesses have already obtained by him under the Right to Information Act and the said Dy. S.P. is now working elsewhere so the custodian of the records who is the successor of the Dy. S.P. has to be summoned under Section 91 Cr.P.C for the purpose of producing documents.
• The petitioner’s counsel wants to examine the said Rafeek for the purpose of contradicting the witnesses.
• According to the learned counsel, prosecution witnesses were already examined and statements were given by them to Sri. Rafeek. Now during examination under Section 233 Cr.P.C. he wants to impeach the credit of such witnesses.
• The prosecution does not rely on those documents but the indefeasible right of the accused persons to impeach the testimony of the witnesses cannot be denied.
• The counsel relied on the decisions reported in the following cases-

1. State of Kerala v. Raghavan and others [1974 Crl.LJ 1373].
2. Shamsul Kanwar v. State of U.P. [AIR 1995 SC 1748].
3. State of Kerala v. Babu and others [AIR 1999 SC 2161].
4. Mahaveer Chandrakar v. State of Chattisgarh [MANU/CG/0668/2017].

ARGUMENTS ADVANCED BY THE RESPONDENT

• The learned Senior Public Prosecutor (Respondent) argued that no such further investigation was conducted by Sri Rafeek, Dy. S.P., Crime Branch. Hence the learned Additional Sessions Judge was right in rejecting the application.
• The respondent also submitted that there was only one investigation conducted by the local police and all the witnesses were examined on the side of the prosecution.
• Therefore, the embargo under Section 172 (3) of the Cr.P.C. is absolute that such a document is not available for the defence.

ANALYSIS BY THE COURT

• The prosecution’s case was that one of the deceased, that is Christudas, was stabbed by the 1st accused when the 2nd accused had caught hold of him.
• The defence counsel stated that, during ‘further investigation’, some of the witnesses had given a different version that Christudas was stabbed by 3rd accused Arogyadas.
• There were similar other contradictions and therefore, Dy.S.P. was summoned and examined to prove the statements recorded by him to clear these contradictions.
• The Court stated that there was no reason to reject the contentions raised by the petitioner. Infact the embargo under Section 172(3) of the Cr.P.C. cannot come into force since no such ‘further investigation’ was conducted by Dy. S.P. Rafeek.
• Even if any ‘further investigation’ was conducted, the defence is not entitled to summon or use the same as stated by the learned Senior Public Prosecutor.
• There was only a formal enquiry conducted by Sri Rafeek on the feasibility of referring the case to the Crime Branch for further investigation. The matter ended.
• No action was taken by the Superintendent of Police on the report submitted by the Dy.S.P. Crime Branch.
• The defence stated that there are prevaricative statements given by the prosecution and in order to expose the contradictions in the statements, they want to examine the Enquiry Officer, the Dy. S.P.
• Summing up from the records, the Court declared that no further investigation was conducted.
• The Court also stated petitions were filed by the petitioner with right direction and his legitimate right cannot be denied.
• Finally, the Court stated that the learned Additional Sessions Judge went wrong in dismissing the petitions. Hence, in order to secure the ends of justice, inherent jurisdiction is liable to be exercised under Section 482 of the Cr.P.C.
• Both criminal miscellaneous cases are allowed and the learned Additional Sessions Judge is directed to issue summons for production of documents under Section 91 of the Cr.P.C.

CONCLUSION

Section 233(3) plays a vital role in preventing any kind of miscommunication on the topic of presentation of witnesses before the Court. The topic of “witness” is a pivotal point on which a case might take a different turn. Hence, the Court must be aware of its authority thereby keep a clear check on the materials presented by both the parties to avoid “miscarriage of justice”.

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