1. This Revision Petition has been preferred against the impugned order dated 24-10-2011 in Private Complaint Case No.1 of 2010, passed by the Learned Sessions Judge, Special Division-I, Sikkim at Gangtok, by which an application under sub-section (6) of Section 246 of the Code of Criminal Procedure, 1973, filed on behalf of the complainant had been rejected.
2. It appears that a complaint for defamation under Sections 499/500 r/w Section 34, IPC had been filed by the State of Sikkim against the respondents under Section 199(2) r/w Section 237(1) of the Code of Criminal Procedure, 1973, as the person defamed was the then Governor of Sikkim, Shri V. Rama Rao.
3. Shri V. Rama Rao having since demitted his office and his evidence being essential for the success of the case of the complainant, the aforesaid application for his examination as a witness was accordingly filed.
4. It is the submission of Mr. J.B. Pradhan, the Learned Public Prosecutor appearing on behalf of the Petitioner, that the basis upon which the application was rejected is not in accordance with law as the only ground for such rejection is that it had been filed belatedly, that is almost after four years after filing of the complaint, after all the witnesses had been examined and charges framed. It is further submitted that the impugned order is in clear violation and in conflict with sub-section (6) of Section 246, Cr.P.C. which vests a Court with the discretion to allow the complainant to examine witnesses beyond the confines of those mentioned in the list appended to the complaint, if it is necessary to further the cause of justice.
5. The Learned Public Prosecutor, has relief upon the decision of Sayeeda Farhana Shamim v. State of Bihar and another: (2008) 8 SCC 218: (AIR 2008 SC 2373) in support of his submission, with specific reference to paragraph 11 thereto which we may reproduce below for convenience:-
â11. Before we refer to decisions of various High Courts, it may be mentioned here that the discretion of the Magistrate is no-where fettered by any of the provisions contained in Cr.P.C. Section 244, Cr.P.C. reads as under:
â244. Evidence for prosecution â (1) When, in any warrant case instituted otherwise than on a police report, the accused appears or is brought before a Magistrate, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution.
(2) The Magistrate may, on the application of the prosecution, issue a summons to any of its witnesses directing him to attend or to produce any document or other thing.â
The expression used is, âthe Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecutionâ. Similarly, sub-section (6) of Section 246, Cr.P.C. reads as under:
â(6) The evidence of any remaining witnesses for the prosecution shall next be taken, and after cross-examination and re-examination (if any), they shall also be discharged.
The expression used is, âthe evidence of any remaining witnesses for the prosecution shall next be takenâ. Therefore, the Magistrate has discretion, before he closes the trial to summon the witnesses if it advances the cause of justice. Here we want to say a word of caution that the discretion which has been conferred on the Magistrate under Section 244 (2) and Section 246(6), Cr.P.C., should be used in appropriate cases for reasons to be recorded. The discretion should not be used fancifully and for a mala fide purpose to harass the accused. It is quite possible that sometimes when the complainant fails to substantiate the allegation, he may resort to dilatory tactics and thereby harass the accused by giving supplementary list to prolong the continuance of the case. This should be checked but in case it is found that if fact the application for summoning the additional witnesses is made for bona fide purpose and to substantiate the allegations made in the complaint, then the Magistrate may exercise such power in appropriate case.â
6. Mr. K.T. Bhutia, learned Senior Counsel appearing on behalf of the respondent No.7, on the other hand, submits that there is no error in the decision of the learned Sessions Judge in passing the impugned order. The only ground which Mr. Bhutia stresses is that, under the provisions of the Code of Criminal Procedure, 1973, it is not permissible for the complainant to be examined after the prosecution evidence is closed and that âany remaining witnesses for prosecutionâ as contemplated under sub-section (6) of Section 246 of the Code of Criminal Procedure cannot bring within its fold a complainant. As per him, examination of a complainant is restricted to the stage provided under the provision of Section 200, Cr.P.C. and such liberty does not survive thereafter.
7. Upon consideration of the submissions on behalf of the learned Counsels for the parties, I am of the view that the impugned order deserves to be set aside, inasmuch as, it is clearly against the very provisions of sub-section (6) of Section 246 and other related provisions of the Code of Criminal Procedure, 1973.
8. The provisions of sub-section (6) of Section 246 in my view, is in addition to supplementing Section 244, Cr.P.C. in order to enable the prosecution to bring in additional evidence with the object to render complete justice. It is an enabling provision provided by the legislature most consciously so that no miscarriage of justice is caused by shutting out the prosecution from bringing in relevant evidence. The submissions made on behalf of Mr.K.T. Bhutia, learned Senior Counsel, do not appear to be sound as evident from the provision itself.
9. The question for consideration is as to whether the witness being sought to be examined by the prosecution is a relevant witness or not and as to whether it falls within the mischief as illustrated in the judgment of Sayeeda Farhana Shamim: (AIR 2008 SC 2373) (supra), that is, whether the application has been made fancifully or for mala fide purpose or to delay the proceedings for causing harassment to the respondents.
10. I have examined the impugned order and I find that in paragraph 13 there is a categorical finding that Shri V. Rama Rao, then Governor of Sikkim, presently residing in Banjara Hills, Hyderabad, is a vital witness to the prosecution case. Apart from this, it is found that the contention made on behalf of the learned counsel for the defence that a complainant cannot be examined after closure of the evidence, stood rejected by the learned trial Court, a finding which has gone unchallenged. However, the learned trial Court ultimately appears to have rejected the application by placing reliance upon the decision of the Kerala High Court reported in 2001 Cri LJ 871 in the matter of Kolangarakath Kammukutty v. Kodakkattakath Puthenveettil Muhammed and others. However, from a plain reading of the portion of the decision relied upon by the learned trial Court found extracted in paragraph 15 of the impugned order, it appears that there was an error on the part of the Learned Sessions Judge in appreciation of the facts and circumstances under which rejection of such application was upheld and that while doing so, the Kerala High Court had re-emphasised that it is permissible for the complainant to examine a witness, âif the evidence has already been collected or the complainant discloses their presence at the time of the incidentâ. In the present case, the witness sought to be examined is the then Governor of Sikkim, Shri V. Rama Rao, who undeniably is a vital witness, himself being the person defamed.
11. Apart from the above, no direction under the proviso to sub-section (1) of Section 237, Cr.P.C. is found to have been issued exempting the person defamed from being examined as a witness. For convenience we may reproduce below:-
â237. Procedure in cases instituted under Section 199(2).- A Court of Session taking cognizance of an offence under sub-section (2) of Section 199 shall try the case in accordance with the procedure for the trial of warrant cases instituted otherwise than on a police report before a Court of Magistrate.
Provided that the person against whom the offence is alleged to have been committed shall, unless the Court of Session, for reasons to be recorded, otherwise directs, be examined as a witness for the prosecutionâ.
(underlining supplied)
12. In view of the above, the implication in law would be that (i) the evidence of the person against whom the offence is committed, that is, the Governor of Sikkim in the present case, is mandatorily required to be taken unless directed otherwise for reasons to be recorded and, that (ii) âthe person against whom the offence is alleged to have been committedâ as contained in the proviso to sub-section (1) of Section 237, Cr.P.C. would fall within the meaning of âany remaining witnesses for the prosecutionâ as provided under sub-section (6) of Section 246 of the Code of Criminal Procedure, 1973.
13. In the above facts and circumstances, in my view, it was erroneous on the part of the learned trial Court to have rejected the application and appears to have exercised its discretion on a wrong premise.
14. For the aforesaid reasons, the Revision Petition is allowed and the impugned order is hereby set aside. Consequently, it is directed that the learned trial Court shall grant opportunity to the complainant to examine the witness sought to be examined by them in their application and pass such consequential orders as may deem essential and proper in accordance with law.
15. No order as to costs. Records of the learned trial Court be sent back forthwith.