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1992 Supreme(Ker) 206
Judges : M.M.PAREED PILLAY
Sreedhar Pillay And Others - Appellant
Versus
P.J.Alexander And Another - Respondent
Case No : Crl.M.C. 847 and 881 of 1992
Decided On : 07/29/1992
Advocates Appeared :
For the Petitioner: M/s. Ramesh Chander and M. Vijaya Kumar, Advocates. For the Respondent: I.T.V. Prabhakaran, for Respondent 1; Public Prosecutor (Smt. K. Usha).
The accused's right to adduce evidence and the Magistrate's discretion to allow or refuse an application for issuing summons to defence witnesses in a defamation case.
Headnote:
Defamation - Examination of Defence Witnesses - S. 500, S. 34 of the I.P.C. - S. 254(2) - S. 233(3) - S. 243(2) - Magistrate's discretion to allow or refuse an application for issuing summons to defence witnesses - The accused's right to adduce evidence and the Magistrate's discretion - The accused's entitlement to rebut the prosecution's case by examining witnesses and producing documents - The necessity to examine defence witnesses when the publication is admitted and the accused want to justify it - The Chief Judicial Magistrate's refusal to allow the defence evidence was set aside
Fact of the Case:
The case involved a defamation complaint against the Printer and Publisher of a weekly publication. The complainant alleged that an article and interview published in the weekly maligned his reputation. The accused sought to examine defence witnesses to prove the exceptions under S. 500 of the I.P.C.
Finding of the Court:
The Chief Judicial Magistrate's refusal to allow the accused to adduce defence evidence was set aside, and the accused were directed to adduce their defence evidence.
Issues: The main issue was whether the accused should be allowed to examine defence witnesses to rebut the prosecution's case and prove the exceptions under S. 500 of the I.P.C.
Ratio Decidendi: The accused's right to adduce evidence cannot be denied, especially when the burden is on the accused. The Magistrate's discretion to allow or refuse an application for issuing summons to defence witnesses is wider in summary cases. The accused is entitled to rebut the prosecution's case by examining witnesses and producing documents. The accused's attempt to establish innocence by defence evidence cannot be thwarted.
Final Decision: The order of the Chief Judicial Magistrate refusing to allow the accused to adduce defence evidence was set aside, and the accused were directed to adduce their defence evidence. The petitions were allowed.
Crl.M.C. 847 of 1992 is filed by A3 and Crl.M.C. 881 of 1992 is filed by A4 in C.C. 435 of 1990 of the Court of the Chief Judicial Magistrate, Ernakulam.
2. The complaint is filed under S. 500 read with S. 34 of the I.P.C. against the Printer and Publisher of English Weekly "Sunday". An article along with an interview of the 4th accused published in the weekly is the subject matter of the defamation complaint. Complainant's case is that the impugned article maligned his good name and damaged his reputation. In the publication it is stated that the conduct of the complainant in the investigation of Hamza murder case was not above board.
3. Complainant examined himself as P.W. 1. Two other witnesses were examined on his side. The complainant closed his evidence and thereafter accused were questioned under S. 313, Cr.P.C. Petitioners (A3 and A4) wanted defence evidence. A4 wanted to examine 17 witnesses and submitted a list to that effect. A3 wanted to examine 13 witnesses and filed list. From out of the list given by A4, three witnesses were examined. They are accused 11, 14 and 9 in the Hamza murder case.
4. Grievance of the petitioners is that the learned Chief Judicial Magistrate refused to examine the remaining witnesses in the witness lists given by them. The learned Chief Judicial Magistrate held that it is not necessary to examine the witnesses cited by the petitioners and refused to issue summons.
5. Contention of the petitioners is that the learned Chief Judicial Magistrate was no justified in passing the impugned order as it would result in a total destruction of their case. Counsel submitted that as the publication has already been admitted burden is on the petitioners to prove the exceptions under S. 500 of the I.P.C. and for that purpose it is really very necessary to examine the witnesses and hence shutting out the same would amount to complete denial of justice. Learned counsel for the complainant (first respondent) pointed out that the attempt of the petitioners is only to protract the proceedings, that most of the witnesses mentioned in the witness lists are either the accused or witnesses in the Hamza murder case and their examination would not in any manner be helpful to resolve the controversy between the parties.
6. In a case tried as a summons case if the Magistrate does not convict the accused under S. 252 or 253, he has to hear the prosecution and take all such evidence as may be produced in support of the prosecution. He has also to hear the accused and take all such evidence as he produces in his defence. Section 254(2) provides 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 or to produce any document or other thing. The discretion is certainly vested with the Magistrate to consider whether witnesses cited by the accused should all be examined. In a case where the Magistrate finds that the witness schedule has been filed with the sole purpose of delaying the proceedings or that no meaningful purpose would be served by the examination of the witnesses, it is of course open to him to decline the request for summoning the witnesses.
7. The power under S. 254(2) conferred on the Magistrate is of wider amplitude than that of the Sessions Judge or Magistrate in a similar situation while trying a sessions case or a warrant case. Section 233(3) relates to a situation where the accused in a sessions case wants to adduce defence evidence or to produce any document or thing. Sub-section (3) enables the Judge to issue process. Of course, it is with a rider. The Sessions Judge can refuse to issue process if he finds that the witness list is filed for the purpose of vexation or delay or defeating the ends of justice. S. 243(2) provides that in a case tried as a warrant case the Magistrate can reject application filed by the accused for issuing process for compelling the attendance of any witness or the
