The Chairman who is being summoned as a witness for the defence, has not been examined as a prosecution witness. Merely because he happened to be the Chairman of the complainant - Society, and is likely to be disposed in favour of the Society, it does not mean that he cannot be called as a witness for the defence. The reasoning of the learned Single Judge, namely, that the 'same person cannot be examined as a witness for the prosecution as well as for the defence', cannot be applied in the present case.Print Page
Bombay High Court
Kalika Nagari Sahakari ... vs Ashok Bansilal Bora on 27 January, 2014
Bench: A.M. Thipsay
1. Heard Mr. S.V. Mundhe, the learned Counsel for the petitioner. Heard Mr. S.S. Jadhavar, the learned Counsel for the respondent.
2. Rule. By consent, Rule made returnable forthwith. The respondent waives service of notice for final hearing. By consent, heard finally.
3. The petitioner is a Sahakari Patsanstha [Cooperative Society] (For short, "Society"). It is the complainant in STC No. 531/2009 pending before the Judicial Magistrate (First Class), Ahmednagar. The respondent is the accused in the said case. After the evidence was adduced and the examination of the respondent under the provisions of Section 313 of the Code of Criminal Procedure, 1973 [For short, "the Code"] was done, the respondent submitted an application (Exhibit 60) dated 25-1-2012, praying that, witness summons be issued to the Chairman of the petitioner - Society - to appear before the court as a witness along with certain documents mentioned in the said application. On this, the learned Magistrate passed an order issuing summons, as prayed for. The petitioner
- Society thereafter filed an application (Exhibit 62) before the Magistrate contending that it was totally unnecessary to examine the Chairman as a witness and that the respondent had not explained how the evidence of the Chairman would be relevant, etc., and praying that the witness may not be summoned. The learned Magistrate rejected the said application by his order dated 25-10-2012.
Aggrieved by the order passed by the Magistrate, the petitioner - Society has approached this Court by filing the present Criminal Writ Petition.
4. The first submission is that, it is not permissible in law that the same person should be examined as a witness for the prosecution, as also, a witness for the defence. In support of this proposition, reliance is placed on a decision rendered by a learned Single Judge of Madras High Court, in the case of M/s. Agate Finance Limited Vs. M/s. L.S.P. Agro Limited [2012 ALL MR (Cri) Journal 61].
I have gone through the said reported judgment and the facts of that case as reflected therefrom. It appears that in that case, a person was examined as prosecution witness No.2 and later on the very person was sought to be examined as defence witness No.2. The learned Single Judge observed that the same person could not be a witness for the prosecution as well as for the defence, and rejected the prayer to summon the said witness and held that the trial court had committed an error in summoning the same person as a defence witness.
5. I am unable to accept that in the present case, a similar situation had arisen. The Chairman who is being summoned as a witness for the defence, has not been examined as a prosecution witness. Merely because he happened to be the Chairman of the complainant - Society, and is likely to be disposed in favour of the Society, it does not mean that he cannot be called as a witness for the defence. The reasoning of the learned Single Judge, namely, that the 'same person cannot be examined as a witness for the prosecution as well as for the defence', cannot be applied in the present case.
6. The second contention is that the relevancy of the evidence of the Chairman was not explained by the respondent and that, the evidence of the said witness would not be relevant. In this regard, I find that though initially the Magistrate has not given any reasons for summoning the Chairman as a witness for the defence, when the application at Exhibit 62 was made, the Magistrate observed in para 5 of his order dated 25-10-2012, that the evidence of the said Chairman would be necessary. Undoubtedly, the Magistrate also observed that once a witness summons had been issued and had been served upon the witness, he could not review his own order, which reasoning is open to doubt, but the fact remains that, that was not the only reason for the Magistrate in refusing to do away with the examination of the Chairman as a witness for the defence. Secondly, the order issuing summons to the Chairman was admittedly passed much earlier and it is only after the summons was served upon him that the objection for examining him as a witness appears to have been taken before the Magistrate. Thus, the claim that, he is not liable to be examined was raised by the petitioner - Society quite belatedly.
7. The real question is, whether there is any such error committed by the Magistrate in passing the impugned order as would justify interference by this Court in its constitutional jurisdiction. I am unable to answer this question in the affirmative.
8. Section 254 of the Code, which relates to the trial of summons cases by Magistrates, makes it clear that the Magistrate may, if he thinks fit, on the application of the prosecution or the accused, issue a summons to any witness directing him to attend and produce any document or other thing. Thus, what has been done by the Magistrate, cannot be said to be outside the scope of the authority vested in him.
9. In the circumstances, no case for invoking the writ jurisdiction of this Court, which is of extraordinary nature, is made out.
10. The petition is dismissed. Rule is discharged.
( ABHAY M. THIPSAY ) JUDGE