Full Judgment
G. Sasidharan, J.
1. This petition is filed by the accused in C.C. 805 on the file of the JudicialMagistrate of the First Class-I, Pathanamthitta. The above case was taken on file onthe basis of a complaint given by the first respondent stating that the petitioner committedthe offence punishable under Section 138 of the Negotiable Instruments Act (for short 'theAct'). Learned counsel for the petitioner submits that a witness schedule was filedby the petitioner showing the name of the fist respondent also as one of the witnessesto be examined. The grievance of the petitioner is that the court refused to issuesummons to the complainant, the first respondent for being examined. This petition isfiled for giving direction to the Magistrate to permit the petitioner to examine thecomplainant, the first respondent as a witness.
2. The question whether the accused in a case in which the allegation is that hecommitted the offence punishable under Section 138 of the Negotiable Instruments Act hasany right to get examined the complainant as witness came up for considerationbefore this Court in Kamarudheen v. Shoukkathali (2001 (3) KLT 476). In theabove decision it was held by this Court that it is not just and proper to compel aperson to be a witness against him and s a matter of right a party cannot have theopposite party examined as a witness. That was a case in which the allegation againstthe accused was that he committed the offence punishable under the Act. The Courtreferred to Sub-section 2 of the Section 243 Cr.P.C. and observed that through a prosecution witnesscan be re-summoned under Section 243 at the instance of the accused, a complainantcannot be resummoned. In taking a decision as to whether the accused in a case inwhich the allegation is that he committed the offence under Section 138 of the Act can getthe complainant examined in court as his witness even though the learned single Judgeof this Court referred to Section 243 Cr.P.C. the decision appears to be on the basis of theprinciple that it is not just and proper to compel a person to be a witness against himand that as a matter of right a party cannot have the opposite party examined as a witness.
3. Learned counsel for the petitioner would submit that the provision whichapplies to the present case is Section 254(2) Cr.P.C. The above clause says that theMagistrate 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 orother thing. Whereas in Section 243(2) what is said is that the Magistrate shall issue suchprocess unless he considers that such application should be refused on the ground thatit is made for the purpose of vexation or delay or for defeating the ends of justice whatis said in Section 254(2) is that the Magistrate may, if he thinks fit, on the application ofprosecution or the accused issue summons to any witness. The above fact wouldindicate that when a summons case is being tried, the Magistrate has the wide discretionto decide whether summons to any witness has to be issued on the application of theprosecution or the accused. On the other hand, under Section 243(2) the request for issuingsummons to a witness can be refused only on the ground that it is made for thepurpose of vexation or delay or for defeating the ends of justice.
4. In the decision of the learned single Judge of this Court in Kamarudheen'scase (2001 (3) KLT 476) the words 'any witness' used in Sub-section 2 of Section 243 wasinterpreted and this Court said that 'any witness will not include the complainant. InSection 254(2) Cr.P.C. also the words 'any witness' are used. The term 'any witness'used in the above clause can have the same meaning of the term 'any witness' usedin Sub-section 2 of Section 243 Cr.P.C. and that term would not include the complainant. As ofright, the accused in a case cannot get the complainant examined as his witness.
5. The learned counsel for the petitioner cited the decision in JanardhananPillai v. State (1999 (1) KLT 618). That was a decision rendered by this Court oninterpreting Section 243 Cr.P.C. and explaining the circumstances in which the Court canrefuse to issue summons to a witness who is requested to be examined in the case.This Court said that the Court can refuse to issue summons to a witness in thecircumstances mentioned in Sub-section 2 of Section 243 Cr.P.C. and that there is no discretionto refuse issue of process to compel the attendance of any witness cited by the accusedfor any other reason.
6. In Sreedhar Pillay v. P.J. Alexander (1992 (2) KLT 349) this Court held thatpower under Section 254(2) conferred on the Magistrate is of wider amplitude than that ofthe Sessions Judge or Magistrate in a similar situation while trying a sessions case ora warrant case. In the above decision this Court said that under Sections 233(3) and 243(2)Cr.P.C., the power of the Sessions Judge and the Magistrate to refuse issuance ofprocess is circumscribed by three factors mentioned specifically, namely, vexation,delay or defeating the ends of justice. In both the above decisions, the question whetherthe term 'any witness' used in Sub-section 2 of Section 254 Cr.P.C. would take in the complainantwas not considered. In the decision in Kamarudheen's case (supra) that questionwas considered by the learned single Judge of this Court and said that the words 'anywitness' in sub-clause would not include the complainant. The position is the same inregard to the meaning of the words 'any witness' appearing in Section 254(2) Cr.P.C. Theaccused has no right to get the complainant examined as a witness on his side. So, nodirection need be given to the Magistrate to issue summons to the complainant forbeing examined as a witness to the petitioner. Application is hence dismissed.