When accused can be denied permission to call witness that will delay proceeding?

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT: MR. JUSTICE RAJA VIJAYARAGHAVAN V

14TH DAY OF OCTOBER 2016

Crl.MC.No. 6069 of 2016

SHIJU.P.T.
Vs
STATE OF KERALA,

Citation: 2017 CRLJ(NOC)93 Ker

1.The petitioner herein is the 1st accused in S.C.No.86 of 2014 on the file of the Additional Sessions Court (Adhoc- II), Kalpetta. He along with the other accused are being proceeded    against      for    having      committed   offences punishable under sections 452, 323, 324, 326, 307 read with 34 of the IPC.

2.After the close of prosecution evidence when it was felt that it was not a case of no evidence, warranting acquittal under Section 232 of the Code, the accused were called upon to enter upon their defence. An application which is produced as Annexure 1 was filed and three witnesses were sought to be summoned.

(a) The defence witness No.1 was the Station House Officer of the Sultan Bathery Police Station and he was sought to be summoned to appear and produce the General Diary, Log Book, Vehicle Movement Register, Beat Book and Beat Register of Beat No.1 of the said Station pertaining to the period from 15.12.2013 to 16.12.2013.
(b) The 2nd witness was the Superintendent of the Government Taluk Hospital,       Sulthan Bathery, and he was required to produce the Intimation Register and office copy of intimation of certain injured persons.
(c) The 3rd witness was the Medical Officer-in-charge, Vinayaka Hospital, Suthan Bathery and he was sought to be summoned to produce the Intimation Register and office copy of the intimation of certain injured witnesses.

3.The said application filed purportedly under Section 233 (3) of the Code of Criminal Procedure was dismissed by the learned Additional Sessions Judge by the impugned order. According to the learned Additional Sessions Judge, the bar under section 172 (3) would operate and the accused is not entitled to use the General Diary and the other documents sought for as of right. It was also held that the petitioner could have very well applied under the Right to Information Act to verify the said records and could have subsequently produced it before Court. The Court below also felt that the summoning of the documents would delay the proceedings and defeat the ends of justice.

4.The above order is assailed in this petition filed under Section 482 of the Code of Criminal Procedure.

5.Heard the learned Counsel appearing for the petitioner as well as the learned Public Prosecutor.

6.The learned counsel appearing for the petitioner would submit that the prosecution allegation is that on 15.12.2013, the accused had attacked the first informant and his friends owing to previous enmity. But, the FIR is seen registered only on 17.12.2013.     It was borne out from the evidence of prosecution witnesses that the police had reached the scene of crime on 15.12.2013 and had sealed the room in which the incident is alleged to have taken place. All the witnesses had also stated that the injured were initially taken to the Government Hospital, Sulthan Bathery and thereafter to the Vinayaka Hospital, Sulthan Bathery. These aspects, according to the learned counsel, if brought out in evidence, would affect the credibility of the witnesses and would create serious dent in the prosecution version. According to the learned counsel, the learned Sessions Judge fundamentally erred in dismissing the application. The bar under section 172 (3) would not apply as what was sought to be summoned was the General Diary maintained in the Police Station and not the Diary maintained by the Investigating Officer under Section 172 of the Code. According to the learned counsel, the accused is entitled as a matter of right to have any witness named in the list he delivers, summoned and examined. Violation of the mandate under Section 233(3) of the Code would certainly prejudice the accused and the precious right of the accused cannot be curtailed for reasons such as delay. The learned Counsel would further contend that instead of summoning the witnesses and documents as prayed for, the learned Sessions Judge has abdicated its powers and has directed the accused to apply under the provisions of the Right to Information Act. This is downright illegal is the submission. It is further submitted that the learned Sessions Judge has entered upon a finding with regard to the defence contentions in the impugned order and justified the flaws in the prosecution case. Summing up it is urged that the prayer for summoning the doctors was rejected without offering any other reason except for delay and vexation.

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7.The learned Public Prosecutor countered the submissions of the learned counsel and submitted that no interference is warranted.

8.I have considered the rival submissions and have gone through the materials on record.

9.The first question is whether the General Diary and other documents maintained in the Police Station , which was sought to be summoned by the defense is hit by section 172 (3) of the Code. S.172 of Code of Criminal Procedure reads thus:

(1) ‘Every police officer making an
investigation under this Chapter shall day
by day enter his proceedings in the
investigation in a diary, setting forth the
time at which the information reached
him, the time at which he began and
closed his investigation, the place, or
places visited by him, and a statement of
the circumstances ascertained through
his investigation.

(1A)   The    Statements   of    Witnesses
recorded     during    the     course    of
investigation under section 161 shall be
inserted in the case diary.

(1B) The diary referred to in sub-section

(1) shall be a volume and duly paginated

(2) Any Criminal Court may send for the
police diaries of the case under inquiry or
trial in such Court, and may use such
diaries, not as evidence in the case, but
to aid it in such inquiry or trial.

(3) Neither the accused nor his agents
shall be entitled to call for such diaries,
nor shall he or they be entitled to see
them merely because they are referred to
by the Court; but, if they are used by the
police officer who made them to refresh
his memory, or if the Court uses them for
the purposes of contradicting such police
officer, the provisions of S.161 or S.145,
as the case may be, of the Indian
Evidence Act, 1872 (1 of 1872) shall
apply.’

10.The diary maintained by the Police Officer making the investigation under Chapter XII should contain the proceedings in the investigation, setting for the time at which the information reached him, the time at which he began and closed the investigation, the places visited by him and a statement of the circumstances ascertained through his investigation. The said diary shall also contain the statement of witnesses recorded under section 161 of the code and it should be kept as a volume and duly paginated. Any criminal court is empowered to send for the police diaries of a case under enquiry or trial in such Court, and may use such diaries, not as evidence in the case, but to aid it in such inquiry or trial. The said diary cannot be called for the accused or his agent and they shall not be entitled to see them merely because they are referred to by the court. In light of the inhibitions contained in S.172(2), it is not open to the Court to place reliance on the diary as a piece of evidence directly or indirectly. However, this does not debar the court from sending for the case diary suo motu or on the request of the accused. The accused is not entitled to copies of the case diary and the entries can be used only to the extent by the court as well as by the accused as provided for in section 172 of the Code. 11.However, in so far as General Diary is concerned, Section 12 of the Police Act, 2011 ( Kerala ) would give an idea as to its purpose and intent.      It reads as follows:

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S.12. Police Station Diary:
Every police station shall keep a general
diary in such form as may be fixed by the
government from time to time and record
therein the substance of all complaints
made, first information reports, charges,
the names and details of complainants,
opposite parties and all arrested persons,
the details of the offences charged
against them, and properties including
weapons that may have been seized from
their possession or otherwise.

12.Thus it is pellucid that the General Diary maintained at the Police Station is different from the Diary which is required to be maintained by the Police Officer who is making investigation under chapter XII of the code.

13.This misconception was taken note of by the Apex Court in Shamshul Kanwar V State of U.P. (AIR 1995 SC 1748 ) and in paragraph No. 12 of the judgment has held that the General Diary as well as the diary maintained under Section 172 of the Code are essentially different.

14.What has now been sought for by the petitioner is the copies of the entries in the general diary maintained in the Police Station and not the Diary maintained by the investigating officer. The Station house officer of the Sultan Bathery Police Station was not conducting the investigation under Chapter XII. The embargo placed under Section 172 (3) of the Code will not apply to the General Diary maintained in the Police Station. The finding of the learned Additional Sessions Judge that the General Diary maintained by the Station house officer is one maintained under Section 172 of the Code is clearly erroneous.

15.In so far as the Medical Officers who were sought to be summoned for verifying the intimation registers, the learned Session Judge was of the view that their summoning will only enure to protract the trial. It will be relevant in this context to refer to a judgment rendered by a Division Bench of this Court in Radhanandan V State of Kerala [1990 (1) KLT 516] wherein it was held as follows in paragraph No 2 of the judgment :-

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Every accused is entitled to a fair trial,
which includes opportunity for adducing
his own evidence also. That is his right if
he is not acquitted under S.232 on the
ground that the judge considers that
there is no evidence that he committed
the offence. In such a situation, 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. On his application, the court
has the duty to issue process and secure
witnesses, documents or things. The
choice in this respect is solely on him.
Calling the accused to enter on his
defence is not an empty formality. Its
omission will be fatal to the prosecution
and the conviction will be bad. 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 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. Entering
on defence and adducing evidence marks
a special stage in and is an essential part
of a criminal trial. If that chance is
denied, it cannot be said to be fair trial.
The   restrictions  on   the    grounds  of
vexation, delay or defeating the ends of
justice are not available in this case.

16.As held in Radhanandan (supra) the accused has the right to adduce evidence which may be relevant for proper appreciation      of   the   prosecution      evidence and to substantiate his defence. Though it is open to the Session Judge to refuse to summon a defence witness on the ground that the application to summon him has been made for the purpose of vexation or delay or for defeating the ends of justice, after having gone through the facts of the instant case, it does not appear to me that the court below was justified in denying an opportunity to the petitioner to advance his case. It is by now settled that the right of the accused is statutory in nature and the provisions of section 233 of the Code which provides an opportunity to the accused to adduce evidence in support of his defence is mandatory. When such an opportunity is not granted, the conviction itself can become vitiated. For the aforesaid reasons, I am of the view that the impugned order cannot be sustained.       The same is set aside. Crl.M.P.No. 1641 of 2016 in S.C. No 86 of 2014 will stand allowed. The learned Additional Judge is directed to issue summons to the defence witnesses and proceed with the trial in accordance with law.

Sd/-

RAJA VIJAYARAGHAVAN.V.
JUDGE

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