Point of Law: Under Section 132, a witness shall not be excused from answering any question as to any matter relevant to matter in issue in any criminal proceeding.

ORDER :

1. This petition is filed under Section 482 of the Code of Criminal Procedure challenging the order dated 8.5.2023 passed by the learned Sessions Judge, Kozhikode, rejecting the application filed by the 1st accused seeking to discharge Charge witness No. 156 and not to permit the prosecution to examine him as a witness.

2. Short facts are as under:

(a) The petitioner is the principal accused in SC 496/2020 on the file of the Court of Session. She is accused of having committed offenses punishable under Section 302, 465, 468, 471 r/w section 34 of the IPC.

(b) The prosecution allegation as per the charge is that the petitioner, motivated by personal satisfaction and her objectives, administered cyanide to her mother-in-law through food and followed it up with the murder of her father-in-law. Subsequently, she provided her husband with poisonous food, leading to the demise of all three individuals. Before administering poison to her father-in-law, the petitioner, with the assistance of accused Nos. 2 to 4, forged a Will in the name of Tom Thomas, the father-in-law, falsely bequeathing the Tharavad house and 38 ¾ cents of land to herself and her husband in equal shares. Several months later, the father-in-law met his demise through cyanide poisoning, and in 2011, the petitioner’s own husband was allegedly murdered. The deaths of the mother-in-law and father-in-law were initially perceived as natural occurrences. However, later on, a young child and the child's mother were also killed with the intention of marrying CW5 Shaju Zacharias, a cousin of the petitioner’s deceased husband and the second husband of the first accused. Due to mounting suspicions surrounding these deaths, an investigation was initiated, ultimately revealing that the first accused had orchestrated the entire sequence of events with the assistance of accused Nos. 2 and 3.

(c) At the time of submission of the final report, the prosecution cited CW156, an advocate and notary, to prove that he had attested a photocopy of the Will allegedly executed by the late Tom Thomas, wherein 38 ¾ cents of land and a house were bequeathed to Roy Thomas and the first accused. He was cited to prove the offense under Sections 465, 468, and 471 of the IPC.

(d) Later, a supplementary charge was laid by the prosecution, arraying CW156, as accused No 5.

(e) The accused No. 5 approached this Court and filed Crl. M.C. No 3927/2020 seeking to quash the proceedings against him, and a learned Single Judge of this Court, after considering the contentions, came to the conclusion that though the act of Notary in attesting a document without seeing the original or as per the advice of one of the accused is reprehensible, he could not have been clubbed along with the rest of the accused in a charge for murder. It was also held that the proceedings initiated against the petitioner were bad and barred under Section 13(1) of the Notaries Act. Holding so, the entire proceedings against the 5th accused were quashed by order dated 8.3.2022.

(f) After CW156 had ceased to be an accused, based on the request made by the public prosecutor, a summons was issued to the witness to appear on 4.2.2023.

(g) It is at this juncture that the application was filed by the petitioner to discharge the witness. The said request was rejected. This has led the petitioner to approach this Court.

3. Sri B.A. Aloor, the learned counsel, submitted that the order passed by the learned Sessions Judge is illegal. In the instant case, the prosecution had filed a supplementary charge arraying CW156 as the 5th accused. Though the proceeding was quashed on the petition filed by the Notary, the fact remains that this Court had made it clear that the order will not stand in the way of the Investigating officer filing a proper complaint against CW156 in tune with the mandate of Section 13(1) of the Notaries Act. It is submitted that further investigation against CW156 is pending, and there are reasonable prospects of him being made an