As regards the procedure for taking out
readable copy of the deposition of the presiding officer, this
court has issued circular regarding the same, as circular
No.27/70 (D1-25751/70 dated 06.08.1970, which reads as
follows:
Recording of depositions and statements of accused
persons- Preparation of legible copy of illegible
deposition-Instructions issued.
It is noticed that the depositions of witnesses and
the statements of accused persons recorded by some of
the presiding officers are illegible. There have been
instances where different versions of the depositions are
to be found in the certified copies and in the copies
forwarded to the High Court for the purpose of Referred
Trials. The High Court would impress upon the presiding
officers that it is essential to have a clear and legible
record of the depositions of witnesses and the statements
of accused persons.
2. If the handwriting of any presiding officer is not
easily readable he will arrange for the preparation of
clear legible copies of depositions and statements as soon
as practicable after they are recorded. The presiding
officer will carefully scrutinise the copies and certify
their correctness. But, although these copies may be
referred to, if necessary, certified copies must, of course,
be prepared only from the original".
So it is clear from the above circular No.
that, the office of the court is expected to take down the
readable copy of the deposition recorded by the presiding
officer, as soon as possible, immediately after the deposition
is recorded, so as to avoid the difficulty of taking out the
readable copy of the deposition of the presiding officer
whose handwriting is not readable or illegible on a later
occasion.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
MR. JUSTICE K.RAMAKRISHNAN
OP(Crl.).No. 39 of 2014 (Q)
A.K. MUHAMMED KUNHI, Vs MUHAMMED HAJI,
Dated this the 18th day of August, 2014
This criminal miscellaneous case was filed by the
petitioner, who is the complainant in C.C.No.701/2011 on
the file of Judicial First Class Magistrate Court, Payyannur,
challenging the order passed by the court below, dismissing
the application for permission to take fresh chief
examination under Article 227 of the Constitution of India.
2. It is alleged in the petition that, the
petitioner is the complainant in C.C.No.701/2011 on the file
of the Judicial First Class Magistrate Court, Payyannur. He
filed a private complaint under Section 190(1)(a) of
Criminal Procedure Code (hereinafter called 'the Code')
against respondents 1 to 5, alleging commission of the
offences under Section 365, 503 and 506 read with Section
34 of the Indian Penal Code, as Ext.P1. The case of the
complainant in the complaint was that, the petitioner and
his brother were intimidated by the accused persons
wrongfully confined them from proceeding in a car and
compelled them to pay an amount of 1,40,000/-, which they
are not liable to pay and the 3rd respondent, Circle
Inspector of Police, Thaliparamba, who did not provide
adequate police protection, but connived with other
accused persons in the transaction. Though complaints
were filed before the authorities, since no action has been
taken, he was compelled to file Ext.P1 complaint. The sworn
statement of the petitioner was taken on 13.05.2010,
certified copies of which were produced as Ext.P2 and P2(a)
by the then presiding officer in charge of the court.
Thereafter, the case was prolonged for some time and in the
meantime, the petitioner filed O.P.(Crl.).No.1002/2013
before this court, for speedy disposal and this court by
Ext.P3 judgment directed the learned magistrate to
complete the enquiry on Ext.P1 complaint within a time
frame. On that basis, the then Judicial First Class
Magistrate, Payyannur, examined the petitioner in chief and
he had given his statement in English as he was not well
versed in Malayalam language. After examination, he had
signed the deposition. Later when he took the certified
copy of the deposition of his chief examination, it was
revealed that, the learned magistrate had not recorded the
statement of the petitioner correctly and legibly in a
readable manner. Certified copy of the deposition so taken
is Ext.P4. So he filed an application for readable copy and
obtained the same, which is produced as Ext.P5. That also
contained the same mistakes. So he has no other remedy,
except to file an application under Section 311 of the Code,
seeking the permission for re-examination of the petitioner
in chief, as Ext.P6 and that petition was dismissed by the
learned magistrate by Ext.P8 order without assigning any
reason. Thereafter, he filed another petition for the same
purpose, but later it was dismissed as not pressed.
Thereafter, he filed Ext.P9 petition, stating that, his
statement was not properly recorded and the deposition
was not readable and so without examining him again,
prejudice will be caused to him, to which the respondents
filed Ext.P7 counter stating that, once he had given chief
examination, he cannot again ask for permission for
examining him in chief afresh and he will be getting an
opportunity for re-examination and at that time, he can
clarify the defects. On that basis, the learned magistrate
passed Ext.P10 order. Ext.P11 is the report of the enquiry
on the complaint filed by the petitioner against the 3rd
respondent, which was given by the then senior
superintendent of police, Head Quarters,
Thiruvananthapuram. According to the petitioner, after
taking sworn statement of the petitioner, the case was
taken on file as C.C.No.701/2011 against the accused
persons under Section 365, 506(1) of the Indian Penal Code
and the sworn statement so recorded is in a legible hand
writing. If the court below is not inclined to take the
deposition written by the subsequent officer, as chief
examination, the sworn statement taken at the time of pre-
cognizance stage can be taken as chief examination of the
petitioner. So the petitioner has now come before this
court, seeking the following reliefs:
i. call for the records relating to Exts.P1 to P12 and
to issue a direction or order quashing Ext.P8 and P10
orders rejecting the application under Section 311 of the
Code of Criminal Procedure for the re-examination of the
petitioner, being unsustainable an miscarriage of justice;
ii. to issue a direction or order directing the
Judicial Magistrate of First Class, Payyannur to re-
examine the petitioner and record his statement in chief
in C.C.No.701 of 2011 invoking the jurisdiction under
Section 311 of the Code of Criminal so as to enable the
subsequent presiding officers to read the depositions and
evaluate the evidence in the light of the same;
iii. to issue any other order or direction to met out
justice under the circumstances of the above case.
3. Heard the learned counsel for the petitioner,
learned Public Prosecutor and the counsel appearing for the
respondent.
4. I have also called for a report from the
Judicial First Class Magistrate Court, Payyannur, as to
whether the readable copy of the deposition has been taken
in this case and the learned magistrate has sent a report,
which reads as follows:
"With reference to the above reference I may
report that readable certified copy of deposition of PW1
A.K.Muhamed Kunhi in CC 701/11 was taken and issued
to counsel for petitioner on 30.10.2013, on his
application. But no copy of the same has been taken and
kept in the file".
5. The learned senior counsel
Shri.T.P.M.Ibrahim Khan, appearing for the petitioner
submitted that, the certified copy of the deposition
produced before this court will go to show that, it is not
legible and not readable and even the office was not in
position to give a readable copy of the deposition, which
also carries the same mistake. In such circumstances, even
if the petitioner wants to proceed with the case, that will
cause prejudice to him, as the successor officer who has to
deal with the case may not be able to understand the demur
of the witnesses and the nature of deposition given by the
witness. So it is necessary in the interest of justice to allow
him to examine again in chief and the court below was not
justified in dismissing the application by stating that, he will
get an opportunity to clarify the same in re-examination, as
at this stage, there is no question of re-examination arises,
as it is in the pre-charge stage, where the chief examination
of the witness, if not cross examined will be there without
getting an opportunity for re-examination. So he prayed for
allowing the application.
6. The learned counsel for the respondent
submitted that, at the time, when he signed the deposition,
he had not pointed out the mistake and he simply signed the
deposition, later he is not entitled to say that, the deposition
was not readable and it was not correctly recorded as well.
7. It is an admitted fact that, the petitioner is
the complainant in the lower court, who filed a private
complaint against the respondents, alleging commission of
the offences under Section 365, 503 and 506 read with
Section 34 of the Indian Penal Code as Ext.P1. It is also an
admitted fact that, after taking sworn statement of the
witnesses, which was produced as Ext.P2 and P2(a), the
learned magistrate has taken cognizance of the case as
C.C.No.701/2011 under Section 365 and 506 of the Indian
Penal Code and decided to issue process to the accused.
Accordingly, process was issued and the respondents have
appeared through counsel as well. After appearance of the
accused, the complainant was examined again for pre-
charge evidence and the chief examination of the
complainant was taken by the successor officer, which is
produced as Ext.P4. Ext.P5 is the certified copy of the
deposition, which according to the petitioner obtained
through court, which is also not readable. So he earlier
filed Ext.P7 petition under Section 311 of the Code of
Criminal Procedure stating that, some material facts have
been omitted to be mentioned and in fact it was not
specifically mentioned about the facts that has been omitted
for which purpose, he wants to be examined again and the
learned magistrate by Ext.P8 order dismissed that
application. Thereafter, he again filed another petitioner,
but later got it dismissed as not pressed. Thereafter he
filed Ext.P9 application stating that, the things spoken to
him were not properly recorded by the magistrate, when he
was examined as PW1 at the stage of pre-charge stage and
he was suffering from some illness and on account of that,
he was not able to give evidence legibly and fluently as well.
According to him, the deposition was not read over to him
and so he has not got an opportunity to correct the said
mistake at that time. So he has no other option, except to
apply under Section 311 of the Code and the respondent
filed ExtP7 counter denying these aspects and further
stated that under Section 244 of the Code of Criminal
Procedure, complainant has to produce all the evidence at
the time when pre-charge examination was done and after
framing of charge, he will be cross examined by the accused
and he will be getting an opportunity for re-examination. So
it is not necessary to allow the petitioner to have a further
chief examination. The learned magistrate by Ext.P10 order
dismissed the application, stating that, further examination
in chief of witnesses already examined is not permissible
under law and he will be getting an opportunity to clarify
the same during re-examination. With that observation, the
learned magistrate dismissed the petition.
8. The main question that arises for
consideration is the right of a witness, who was examined
and signed the deposition to challenge the same at a later
stage. Section 278 of the Code of Criminal Procedure deals
with recording of witnesses, which reads as follows:
278. Procedure in regard to such evidence
when completed.- (a) As the evidence of each witness
taken under section 275 or section 276 is completed, it
shall be read over to him in the presence of the accused,
if in attendance, or of his pleader, if he appears by
pleader, and shall, if necessary, be corrected.
(2) If the witness denies the correctness of any part
of the evidence when the same is read over tom him, the
Magistrate or presiding Judge may, instead of correcting
the evidence, make a memorandum thereon of the
objection made to it by the witness and shall add such
remarks as he thinks necessary.
(3) If the record of the evidence is in a language
different from that in which it has been given and the
witness does not understand that language, the record
shall be interpreted to him in the language in which it
was given, or in a language which he understands.
9. Rule 57 of the Criminal Rules of Practice
deals with signing of deposition, after recording the
deposition of the witnesses in open court, which reads as
follows:
57. Signing of depositions - After a deposition
has been read over to the witness, the last page thereof
shall be signed in full by him. The Judge shall initial
every page if the deposition is not recorded in his hand.
A certificate in the following form shall be appended at
the foot of the deposition and the Judge shall affix his
signature thereto over his name:
"Taken down by me/before me in open court,
interpreted/read over to the witness and admitted by him
to be correct".
10. It will be seen from the above section and
Rule that there is a duty cast on the presiding officer to
read over the deposition and if the witness says that,
certain portions were not correctly recorded as deposed by
him, then at the foot of the deposition it has to be recorded
by the learned magistrate in the form of a memorandum
and after his remarks, the signature of the witness has to be
obtained and then he has to sign the same as mentioned in
Rule 57 of the Criminal Rules of Practice and also Section
278 of the Code. This aspect has been considered by this
court in the decision reported in 2008(4) KLT 1047
Bhagavat Singh G. v. State of Kerala and reiterated the
same position as well. In the same decision the learned
Judge also observed that, once the petitioner has not
objected the manner in which the deposition was recorded
and he, after signing the same, is estopped from
challenging the correctness of the same at a later stage
that, it was not read over to him and it was not properly
recorded as he is expected to exercise the option at first the
opportunity before signing the deposition.
11. Further in the decision reported in (AIR
1989 (S.C) 1785) Mirmohammad Omar v. State of
West Bengal, the Hon'ble Supreme Court has held that,
object of 278 is not intended to permit a witness to resile
from his statement in the name of correction. So it is clear
from the above decision that, even if the petitioner wants to
make some correction in the deposition recorded by the
presiding officer, it cannot be corrected by the court as
intended by the witness. But as mentioned in Section 278
of the Code of Criminal Procedure, it can only be recorded
as a memorandum noting that, after the statement was read
over, the witnesses has pointed out certain corrections and
that correction in the words of witness has to be recorded
as such by the presiding officer and he shall add such
remarks as he thinks necessary regarding the objection
raised by the witness regarding the correctness of the
deposition recorded. So under the circumstances, the
petitioner is not entitled to now challenge the correctness of
the depositions recorded by the magistrate.
12. As regards the procedure for taking out
readable copy of the deposition of the presiding officer, this
court has issued circular regarding the same, as circular
No.27/70 (D1-25751/70 dated 06.08.1970, which reads as
follows:
Recording of depositions and statements of accused
persons- Preparation of legible copy of illegible
deposition-Instructions issued.
It is noticed that the depositions of witnesses and
the statements of accused persons recorded by some of
the presiding officers are illegible. There have been
instances where different versions of the depositions are
to be found in the certified copies and in the copies
forwarded to the High Court for the purpose of Referred
Trials. The High Court would impress upon the presiding
officers that it is essential to have a clear and legible
record of the depositions of witnesses and the statements
of accused persons.
2. If the handwriting of any presiding officer is not
easily readable he will arrange for the preparation of
clear legible copies of depositions and statements as soon
as practicable after they are recorded. The presiding
officer will carefully scrutinise the copies and certify
their correctness. But, although these copies may be
referred to, if necessary, certified copies must, of course,
be prepared only from the original".
13. So it is clear from the above circular No.
that, the office of the court is expected to take down the
readable copy of the deposition recorded by the presiding
officer, as soon as possible, immediately after the deposition
is recorded, so as to avoid the difficulty of taking out the
readable copy of the deposition of the presiding officer
whose handwriting is not readable or illegible on a later
occasion. This circular is expected to be followed strictly by
the courts below. In this case, it is seen from the report of
the presiding officer that, such a practice has not been
followed in this case. So, it is necessary to issue a direction
to the magistrate, to get the readable copy of the deposition
of the witness recorded by the earlier officer with his
assistance and that has to be kept in the record.
14. As regards the remedy of the petitioner is
concerned, once he realises that, certain omissions were
made or certain other factors will have to be brought to the
O.P. (Crl.) 39/2014
15
notice of the court at the pre-charge examination of
witnesses under Section 244 of the Code of Criminal
Procedure, when he was not cross examined by the defence
counsel, he can only apply to the court under Section 311 of
the Code for seeking permission to give further chief
examination to substantiate this case, as no prejudice will
be caused to the accused at that stage, because he has not
opted to cross examine the witness and deferred the cross
examination after framing of charge, and he will be getting
an opportunity to cross examine him at that stage as well.
But if he has been cross examined on the basis of the
material available, even at the pre-charge stage, then the
remedy of the petitioner is only to clarify the same in the re-
examination as at that time, he will be getting an
opportunity to clarify the same in the re-examination stage.
Such an opportunity will not be available to him in a case
where he was not cross examined by the defence at the pre-
charge stage. So under the circumstances, the observations
made by the court below that, he will be getting an
O.P. (Crl.) 39/2014
16
opportunity to clarify the things in the re-examination after
the stage of Section 244 of the Code appears to be not
correct because, if the evidence adduced are not sufficient,
then the accused are likely to be discharged and he will not
be getting an opportunity to adduce evidence thereafter. So
under the circumstances, this court feels that, it is
necessary in the interest of justice that an opportunity has
to be given to the petitioner, to give further chief
examination and not examine him chief afresh as claimed by
him to clarify mistakes in the depositions recorded by the
earlier presiding officer, so as to enable him to proceed
with the case in accordance with law effectively. The
mistake committed by the court below should not stand in
the way of denying justice to the parties as well. So under
the circumstances, this court disposes of the petition as
follows:
The Judicial First Class Magistrate Court,
Payyannur, is directed to get the readable copy
of the deposition recorded in chief of PW1 in this
O.P. (Crl.) 39/2014
17
case with the help of the presiding officer, who
recorded the same by the court staff in tune with
the circular mentioned in 27/70 of the High
Court in this regard and keep the readable copy
of the deposition in the file, as mentioned in
those circulars and the concerned judicial officer
is also directed to render his assistance to the
staff in this regard.
If the petitioner files an application for
permission for further chief examination, stating
the things wanted to be elicited by him, which he
had omitted to mention in the earlier chief
examination, under Section 311 of the Code,
then the learned magistrate is directed to
consider and dispose of that application, after
giving an opportunity to the accused to file
objection to the same in accordance with law.
Office is directed to communicate this order to the
concerned court immediately. The registry is also directed
to circulate this judgment to the subordinate courts for the
purpose of their guidance in future.
With the above direction and observation, the
petition is disposed of.
Sd/-
K. RAMAKRISHNAN, JUDGE
// True Copy//
P.A. to Judge
ss
Print Page
readable copy of the deposition of the presiding officer, this
court has issued circular regarding the same, as circular
No.27/70 (D1-25751/70 dated 06.08.1970, which reads as
follows:
Recording of depositions and statements of accused
persons- Preparation of legible copy of illegible
deposition-Instructions issued.
It is noticed that the depositions of witnesses and
the statements of accused persons recorded by some of
the presiding officers are illegible. There have been
instances where different versions of the depositions are
to be found in the certified copies and in the copies
forwarded to the High Court for the purpose of Referred
Trials. The High Court would impress upon the presiding
officers that it is essential to have a clear and legible
record of the depositions of witnesses and the statements
of accused persons.
2. If the handwriting of any presiding officer is not
easily readable he will arrange for the preparation of
clear legible copies of depositions and statements as soon
as practicable after they are recorded. The presiding
officer will carefully scrutinise the copies and certify
their correctness. But, although these copies may be
referred to, if necessary, certified copies must, of course,
be prepared only from the original".
So it is clear from the above circular No.
that, the office of the court is expected to take down the
readable copy of the deposition recorded by the presiding
officer, as soon as possible, immediately after the deposition
is recorded, so as to avoid the difficulty of taking out the
readable copy of the deposition of the presiding officer
whose handwriting is not readable or illegible on a later
occasion.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
MR. JUSTICE K.RAMAKRISHNAN
OP(Crl.).No. 39 of 2014 (Q)
A.K. MUHAMMED KUNHI, Vs MUHAMMED HAJI,
Dated this the 18th day of August, 2014
This criminal miscellaneous case was filed by the
petitioner, who is the complainant in C.C.No.701/2011 on
the file of Judicial First Class Magistrate Court, Payyannur,
challenging the order passed by the court below, dismissing
the application for permission to take fresh chief
examination under Article 227 of the Constitution of India.
2. It is alleged in the petition that, the
petitioner is the complainant in C.C.No.701/2011 on the file
of the Judicial First Class Magistrate Court, Payyannur. He
filed a private complaint under Section 190(1)(a) of
Criminal Procedure Code (hereinafter called 'the Code')
against respondents 1 to 5, alleging commission of the
offences under Section 365, 503 and 506 read with Section
34 of the Indian Penal Code, as Ext.P1. The case of the
complainant in the complaint was that, the petitioner and
his brother were intimidated by the accused persons
wrongfully confined them from proceeding in a car and
compelled them to pay an amount of 1,40,000/-, which they
are not liable to pay and the 3rd respondent, Circle
Inspector of Police, Thaliparamba, who did not provide
adequate police protection, but connived with other
accused persons in the transaction. Though complaints
were filed before the authorities, since no action has been
taken, he was compelled to file Ext.P1 complaint. The sworn
statement of the petitioner was taken on 13.05.2010,
certified copies of which were produced as Ext.P2 and P2(a)
by the then presiding officer in charge of the court.
Thereafter, the case was prolonged for some time and in the
meantime, the petitioner filed O.P.(Crl.).No.1002/2013
before this court, for speedy disposal and this court by
Ext.P3 judgment directed the learned magistrate to
complete the enquiry on Ext.P1 complaint within a time
frame. On that basis, the then Judicial First Class
Magistrate, Payyannur, examined the petitioner in chief and
he had given his statement in English as he was not well
versed in Malayalam language. After examination, he had
signed the deposition. Later when he took the certified
copy of the deposition of his chief examination, it was
revealed that, the learned magistrate had not recorded the
statement of the petitioner correctly and legibly in a
readable manner. Certified copy of the deposition so taken
is Ext.P4. So he filed an application for readable copy and
obtained the same, which is produced as Ext.P5. That also
contained the same mistakes. So he has no other remedy,
except to file an application under Section 311 of the Code,
seeking the permission for re-examination of the petitioner
in chief, as Ext.P6 and that petition was dismissed by the
learned magistrate by Ext.P8 order without assigning any
reason. Thereafter, he filed another petition for the same
purpose, but later it was dismissed as not pressed.
Thereafter, he filed Ext.P9 petition, stating that, his
statement was not properly recorded and the deposition
was not readable and so without examining him again,
prejudice will be caused to him, to which the respondents
filed Ext.P7 counter stating that, once he had given chief
examination, he cannot again ask for permission for
examining him in chief afresh and he will be getting an
opportunity for re-examination and at that time, he can
clarify the defects. On that basis, the learned magistrate
passed Ext.P10 order. Ext.P11 is the report of the enquiry
on the complaint filed by the petitioner against the 3rd
respondent, which was given by the then senior
superintendent of police, Head Quarters,
Thiruvananthapuram. According to the petitioner, after
taking sworn statement of the petitioner, the case was
taken on file as C.C.No.701/2011 against the accused
persons under Section 365, 506(1) of the Indian Penal Code
and the sworn statement so recorded is in a legible hand
writing. If the court below is not inclined to take the
deposition written by the subsequent officer, as chief
examination, the sworn statement taken at the time of pre-
cognizance stage can be taken as chief examination of the
petitioner. So the petitioner has now come before this
court, seeking the following reliefs:
i. call for the records relating to Exts.P1 to P12 and
to issue a direction or order quashing Ext.P8 and P10
orders rejecting the application under Section 311 of the
Code of Criminal Procedure for the re-examination of the
petitioner, being unsustainable an miscarriage of justice;
ii. to issue a direction or order directing the
Judicial Magistrate of First Class, Payyannur to re-
examine the petitioner and record his statement in chief
in C.C.No.701 of 2011 invoking the jurisdiction under
Section 311 of the Code of Criminal so as to enable the
subsequent presiding officers to read the depositions and
evaluate the evidence in the light of the same;
iii. to issue any other order or direction to met out
justice under the circumstances of the above case.
3. Heard the learned counsel for the petitioner,
learned Public Prosecutor and the counsel appearing for the
respondent.
4. I have also called for a report from the
Judicial First Class Magistrate Court, Payyannur, as to
whether the readable copy of the deposition has been taken
in this case and the learned magistrate has sent a report,
which reads as follows:
"With reference to the above reference I may
report that readable certified copy of deposition of PW1
A.K.Muhamed Kunhi in CC 701/11 was taken and issued
to counsel for petitioner on 30.10.2013, on his
application. But no copy of the same has been taken and
kept in the file".
5. The learned senior counsel
Shri.T.P.M.Ibrahim Khan, appearing for the petitioner
submitted that, the certified copy of the deposition
produced before this court will go to show that, it is not
legible and not readable and even the office was not in
position to give a readable copy of the deposition, which
also carries the same mistake. In such circumstances, even
if the petitioner wants to proceed with the case, that will
cause prejudice to him, as the successor officer who has to
deal with the case may not be able to understand the demur
of the witnesses and the nature of deposition given by the
witness. So it is necessary in the interest of justice to allow
him to examine again in chief and the court below was not
justified in dismissing the application by stating that, he will
get an opportunity to clarify the same in re-examination, as
at this stage, there is no question of re-examination arises,
as it is in the pre-charge stage, where the chief examination
of the witness, if not cross examined will be there without
getting an opportunity for re-examination. So he prayed for
allowing the application.
6. The learned counsel for the respondent
submitted that, at the time, when he signed the deposition,
he had not pointed out the mistake and he simply signed the
deposition, later he is not entitled to say that, the deposition
was not readable and it was not correctly recorded as well.
7. It is an admitted fact that, the petitioner is
the complainant in the lower court, who filed a private
complaint against the respondents, alleging commission of
the offences under Section 365, 503 and 506 read with
Section 34 of the Indian Penal Code as Ext.P1. It is also an
admitted fact that, after taking sworn statement of the
witnesses, which was produced as Ext.P2 and P2(a), the
learned magistrate has taken cognizance of the case as
C.C.No.701/2011 under Section 365 and 506 of the Indian
Penal Code and decided to issue process to the accused.
Accordingly, process was issued and the respondents have
appeared through counsel as well. After appearance of the
accused, the complainant was examined again for pre-
charge evidence and the chief examination of the
complainant was taken by the successor officer, which is
produced as Ext.P4. Ext.P5 is the certified copy of the
deposition, which according to the petitioner obtained
through court, which is also not readable. So he earlier
filed Ext.P7 petition under Section 311 of the Code of
Criminal Procedure stating that, some material facts have
been omitted to be mentioned and in fact it was not
specifically mentioned about the facts that has been omitted
for which purpose, he wants to be examined again and the
learned magistrate by Ext.P8 order dismissed that
application. Thereafter, he again filed another petitioner,
but later got it dismissed as not pressed. Thereafter he
filed Ext.P9 application stating that, the things spoken to
him were not properly recorded by the magistrate, when he
was examined as PW1 at the stage of pre-charge stage and
he was suffering from some illness and on account of that,
he was not able to give evidence legibly and fluently as well.
According to him, the deposition was not read over to him
and so he has not got an opportunity to correct the said
mistake at that time. So he has no other option, except to
apply under Section 311 of the Code and the respondent
filed ExtP7 counter denying these aspects and further
stated that under Section 244 of the Code of Criminal
Procedure, complainant has to produce all the evidence at
the time when pre-charge examination was done and after
framing of charge, he will be cross examined by the accused
and he will be getting an opportunity for re-examination. So
it is not necessary to allow the petitioner to have a further
chief examination. The learned magistrate by Ext.P10 order
dismissed the application, stating that, further examination
in chief of witnesses already examined is not permissible
under law and he will be getting an opportunity to clarify
the same during re-examination. With that observation, the
learned magistrate dismissed the petition.
8. The main question that arises for
consideration is the right of a witness, who was examined
and signed the deposition to challenge the same at a later
stage. Section 278 of the Code of Criminal Procedure deals
with recording of witnesses, which reads as follows:
278. Procedure in regard to such evidence
when completed.- (a) As the evidence of each witness
taken under section 275 or section 276 is completed, it
shall be read over to him in the presence of the accused,
if in attendance, or of his pleader, if he appears by
pleader, and shall, if necessary, be corrected.
(2) If the witness denies the correctness of any part
of the evidence when the same is read over tom him, the
Magistrate or presiding Judge may, instead of correcting
the evidence, make a memorandum thereon of the
objection made to it by the witness and shall add such
remarks as he thinks necessary.
(3) If the record of the evidence is in a language
different from that in which it has been given and the
witness does not understand that language, the record
shall be interpreted to him in the language in which it
was given, or in a language which he understands.
9. Rule 57 of the Criminal Rules of Practice
deals with signing of deposition, after recording the
deposition of the witnesses in open court, which reads as
follows:
57. Signing of depositions - After a deposition
has been read over to the witness, the last page thereof
shall be signed in full by him. The Judge shall initial
every page if the deposition is not recorded in his hand.
A certificate in the following form shall be appended at
the foot of the deposition and the Judge shall affix his
signature thereto over his name:
"Taken down by me/before me in open court,
interpreted/read over to the witness and admitted by him
to be correct".
10. It will be seen from the above section and
Rule that there is a duty cast on the presiding officer to
read over the deposition and if the witness says that,
certain portions were not correctly recorded as deposed by
him, then at the foot of the deposition it has to be recorded
by the learned magistrate in the form of a memorandum
and after his remarks, the signature of the witness has to be
obtained and then he has to sign the same as mentioned in
Rule 57 of the Criminal Rules of Practice and also Section
278 of the Code. This aspect has been considered by this
court in the decision reported in 2008(4) KLT 1047
Bhagavat Singh G. v. State of Kerala and reiterated the
same position as well. In the same decision the learned
Judge also observed that, once the petitioner has not
objected the manner in which the deposition was recorded
and he, after signing the same, is estopped from
challenging the correctness of the same at a later stage
that, it was not read over to him and it was not properly
recorded as he is expected to exercise the option at first the
opportunity before signing the deposition.
11. Further in the decision reported in (AIR
1989 (S.C) 1785) Mirmohammad Omar v. State of
West Bengal, the Hon'ble Supreme Court has held that,
object of 278 is not intended to permit a witness to resile
from his statement in the name of correction. So it is clear
from the above decision that, even if the petitioner wants to
make some correction in the deposition recorded by the
presiding officer, it cannot be corrected by the court as
intended by the witness. But as mentioned in Section 278
of the Code of Criminal Procedure, it can only be recorded
as a memorandum noting that, after the statement was read
over, the witnesses has pointed out certain corrections and
that correction in the words of witness has to be recorded
as such by the presiding officer and he shall add such
remarks as he thinks necessary regarding the objection
raised by the witness regarding the correctness of the
deposition recorded. So under the circumstances, the
petitioner is not entitled to now challenge the correctness of
the depositions recorded by the magistrate.
12. As regards the procedure for taking out
readable copy of the deposition of the presiding officer, this
court has issued circular regarding the same, as circular
No.27/70 (D1-25751/70 dated 06.08.1970, which reads as
follows:
Recording of depositions and statements of accused
persons- Preparation of legible copy of illegible
deposition-Instructions issued.
It is noticed that the depositions of witnesses and
the statements of accused persons recorded by some of
the presiding officers are illegible. There have been
instances where different versions of the depositions are
to be found in the certified copies and in the copies
forwarded to the High Court for the purpose of Referred
Trials. The High Court would impress upon the presiding
officers that it is essential to have a clear and legible
record of the depositions of witnesses and the statements
of accused persons.
2. If the handwriting of any presiding officer is not
easily readable he will arrange for the preparation of
clear legible copies of depositions and statements as soon
as practicable after they are recorded. The presiding
officer will carefully scrutinise the copies and certify
their correctness. But, although these copies may be
referred to, if necessary, certified copies must, of course,
be prepared only from the original".
13. So it is clear from the above circular No.
that, the office of the court is expected to take down the
readable copy of the deposition recorded by the presiding
officer, as soon as possible, immediately after the deposition
is recorded, so as to avoid the difficulty of taking out the
readable copy of the deposition of the presiding officer
whose handwriting is not readable or illegible on a later
occasion. This circular is expected to be followed strictly by
the courts below. In this case, it is seen from the report of
the presiding officer that, such a practice has not been
followed in this case. So, it is necessary to issue a direction
to the magistrate, to get the readable copy of the deposition
of the witness recorded by the earlier officer with his
assistance and that has to be kept in the record.
14. As regards the remedy of the petitioner is
concerned, once he realises that, certain omissions were
made or certain other factors will have to be brought to the
O.P. (Crl.) 39/2014
15
notice of the court at the pre-charge examination of
witnesses under Section 244 of the Code of Criminal
Procedure, when he was not cross examined by the defence
counsel, he can only apply to the court under Section 311 of
the Code for seeking permission to give further chief
examination to substantiate this case, as no prejudice will
be caused to the accused at that stage, because he has not
opted to cross examine the witness and deferred the cross
examination after framing of charge, and he will be getting
an opportunity to cross examine him at that stage as well.
But if he has been cross examined on the basis of the
material available, even at the pre-charge stage, then the
remedy of the petitioner is only to clarify the same in the re-
examination as at that time, he will be getting an
opportunity to clarify the same in the re-examination stage.
Such an opportunity will not be available to him in a case
where he was not cross examined by the defence at the pre-
charge stage. So under the circumstances, the observations
made by the court below that, he will be getting an
O.P. (Crl.) 39/2014
16
opportunity to clarify the things in the re-examination after
the stage of Section 244 of the Code appears to be not
correct because, if the evidence adduced are not sufficient,
then the accused are likely to be discharged and he will not
be getting an opportunity to adduce evidence thereafter. So
under the circumstances, this court feels that, it is
necessary in the interest of justice that an opportunity has
to be given to the petitioner, to give further chief
examination and not examine him chief afresh as claimed by
him to clarify mistakes in the depositions recorded by the
earlier presiding officer, so as to enable him to proceed
with the case in accordance with law effectively. The
mistake committed by the court below should not stand in
the way of denying justice to the parties as well. So under
the circumstances, this court disposes of the petition as
follows:
The Judicial First Class Magistrate Court,
Payyannur, is directed to get the readable copy
of the deposition recorded in chief of PW1 in this
O.P. (Crl.) 39/2014
17
case with the help of the presiding officer, who
recorded the same by the court staff in tune with
the circular mentioned in 27/70 of the High
Court in this regard and keep the readable copy
of the deposition in the file, as mentioned in
those circulars and the concerned judicial officer
is also directed to render his assistance to the
staff in this regard.
If the petitioner files an application for
permission for further chief examination, stating
the things wanted to be elicited by him, which he
had omitted to mention in the earlier chief
examination, under Section 311 of the Code,
then the learned magistrate is directed to
consider and dispose of that application, after
giving an opportunity to the accused to file
objection to the same in accordance with law.
Office is directed to communicate this order to the
concerned court immediately. The registry is also directed
to circulate this judgment to the subordinate courts for the
purpose of their guidance in future.
With the above direction and observation, the
petition is disposed of.
Sd/-
K. RAMAKRISHNAN, JUDGE
// True Copy//
P.A. to Judge
ss
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