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2020 Supreme(Mad) 2429
IN THE HIGH COURT OF JUDICATURE AT MADRAS
G.K.ILANTHIRAIYAN, J.
Mariyaselvam S/o. Ramasamy - Petitioner
Vs.
The State Rep by The Deputy Superintendent of Police, Mannargudi, Thiruvarur District. - Respondent
CRL.O.P.No.12200 of 2020 and Crl.M.P.No.4853 of 2020
Decided On : 02-09-2020
Advocate Appeared:
For the Petitioner: Mr.R.Sankarasubbu
For the Respondent: Mr.S.Karthikeyan
Headnote:
Criminal Procedure Code, 1973 - Section 233(3), 232, 289(1), (2), (3), 223, 66 – Indian Penal Code, 1860 - Sections 454, 120B, 397, 395 and 34 - Arms Act, 1959 - Sections 25(1)(a), 25(1-B)(a), 27(1) - Whether something that was done or said either before or at trial deprived quality of fairness to a degree where a miscarriage of justice has resulted - Whether he means to adduce evidence – Held, High Court by a curious process of reasoning opined that as DW-1 did not whisper a word that photographs published in newspaper were those of photographs of appellant and said Udayakumar and as he had not been asked to identify them in court, his evidence was not admissible in law - Insofar as admissibility of news item in newspapers as evidence, it can be considered only after examining witnesses and marking news papers - Trial Court can test evidensary value after examining witnesses and marking newspapers - It is settled propositions of law that news items being in nature of hear-say evidence, unless proved by witnesses, it can be best secondary evidence - Therefore, news items cannot be said to prove themselves although they may be taken into account with other evidence, if other evidence is forcible - Therefore, trial Court can very well consider evidensary value of news items and evidence of editor and reporter while disposing case - Denial of right of petitioner to examine his witness for reason that news paper cannot be treated as proof of facts reported therein and it is merely hear-say and inadmissible in evidence is premature - Petition allowed.
ORDER :
This petition has been filed to challenge the order dated 16.03.2020 passed in C.M.P.No.140 of 2020 in S.C.No.75 of 2018 on the file of the Subordinate Court, Mannargudi, thereby dismissing the application filed by the petitioner under Section 233(3) of Cr.P.C., to issue process to the petition mentioned witnesses to attend and produce the documents in support of the defence side.
2. The learned counsel appearing for the petitioner would submit that the petitioner has been charged for the offences under Sections 454, 120B, 397 r/w 395 r/w 34 of IPC and Sections 25(1)(a), 25(1-B)(a), 27(1) of Arms Act and he is under custody for the past two years. However the trial Court while dismissing the petition filed by the petitioner under Section 233(3) of Cr.P.C., stated that only for the reason to delay the proceedings of the case, the said petition has been filed. From the date of his arrest, the petitioner is under custody and the prosecution completed its evidence and posted the matter for defence side evidences. The petitioner has got valuable right to examine any witnesses and rejection of his application is premature and it is mandatory for the trial Court to allow the defence witnesses to put forth their case and only thereafter the evidensary value has been tested by the trial Court. In this regard, the learned counsel appearing for the petitioner relied upon the following judgments :-
i) 1982 Crl. L.J. 899 - Parameswara Kurup Janardhanan Vs. State of Kerala
ii) 2004 (2) Crl. 135 - Srimathi Mallammal Vs State by Chamarajpet police
iii) 2004 SCC (Crl) 999 - Zahira Habibullah v. State of Gujarat
iv) Crl.A.No.636 of 2007 dated 27.04.2007 - Ravi @ Ravichandran Vs. State rep by Inspector of Police.
3. Per contra, the learned Additional Public Prosecutor submitted that the right of the petitioner granted under Section 233(3) of Cr.P.C. is not mandatory one. The trial Court can also refuse the request of the accused when it is made for the purpose of vexation or delay or for defeating the ends of justice. In the case on hand, the prosecution have completed their witnesses and posted for defence witnesses. While being so, the petitioner filed this petition to examine the editor and reporters of the Tamil Murasu and Tinakaran news papers of Trichy and Thiruvarur, to disprove the date of arrest of the petitioner herein, since the newspapers published news, as if the petitioner was arrested on 11.05.2018 at about 2.30 am. The witnesses are editor and reporters of Tamil daily and there is absolutely no specific reason stated by the petitioner to issue process to them. The petitioner has committed very serious offences of robber and dacoity and also attempted to cause death and also committed the offence under Arms Act. Therefore, the news paper cannot be treated as proof and the fact reported therein cannot be considered, since the news paper merely hear-say evidence and therefore the news items are inadmissible evidence. Hence, the trial Court rightly rejected the petition filed by the petitioner and prayed for dismissal of this petition.
4. Heard Mr.R.Sankarasubbu, learned counsel appearing for the petitioner and Mr.S.Karthikeyan, learned Additional Public Prosecutor appearing for the respondents.
5. The petitioner is an accused in S.C.No.75 of 2018 on the file of the Subordinate Court, Mannargudi, and charged for the offences under Sections 454, 120B, 397 r/w 395 r/w 34 of IPC and Sections 25(1)(a), 25(1- B)(a), 27(1) of Arms Act. After completion of the prosecution witnesses, the petitioner filed the petition under Section 233(3) of Cr.P.C., to issue process summons to the witnesses mentioned in the petition viz., to examine the editor and reporters of the Tamil Murasu and Tinakaran news papers of Trichy and Thiruvarur Division. It is relevant to extract the provisions under Section 233(3) of Cr.P.C., as follows:-
"233. Entering upon defence –
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(3) If the accused applies for the issue of any process for compelling
