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CASE NO.: Special Leave Petition (crl.) 438  of  2000

PETITIONER: ARIVAZHAGAN

       Vs.

RESPONDENT: STATE, REPRESENTED BY INSPECTOR OF POLICE

DATE OF JUDGMENT:       08/03/2000

BENCH: K.T. Thomas & M.B. Shah

JUDGMENT:

Thomas J. L...I...T.......T.......T.......T.......T.......T.......T..J

Leave granted.

   Has the accused a right to examine a myriad of witnesses and  has the court any power to prune down the list of  such witnesses?   Such  a  question   arose  when  the  appellant submitted  a list of 267 witnesses for the defence when  the trial  reached that stage.  The trial Court was not disposed to  allow  him to examine all the persons mentioned  in  the list  and  directed him to limit the number to  the  minimum necessary.   As the appellant was not willing to reduce  the number  of  witnesses he approached the High court  to  help him.   But the advantage he got from the High court was only marginal  and  it did not satisfy him.  Hence, he filed  the Special  Leave  Petition.  After hearing Shri Sushil  Kumar, learned  senior  counsel for the appellant we felt that  the appeal  can  be disposed of without the aid of arguments  of the respondents and so we did not issue notice to them.

   The  factual  background in which the situation  reached the  above  stage  is the following:   Appellant  and  three persons  are now being arraigned before the Special Court at Chennai  for  facing a charge for the offence under  Section 13(1)© of the Prevention of Corruption Act 1988 (for  short the  PC  Act)  read with Section 109 of the  Indian  Penal Code.   Prosecution  examined  a   number  of  witnesses  by summoning  41  persons.   When the case  reached  the  stage envisaged  in  Section  243(1)  of   the  Code  of  Criminal Procedure  (for  short  the Code) he submitted a  list  of defence  witnesses.   As we mentioned earlier the number  of witnesses shown in the list was so much that even a marathon legal  proceeding  would  not be sufficient to  exhaust  the entire list.

   The  Special  Judge  made  a scrutiny of  the  list  and dissected the names into four divisions.  The first division consisted  of  names  shown  as No.  1  to  8.   The  second division  consisted  of names shown as No.  9 to 117 in  the list.   The third division consisted of name figuring in the

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list  as No.  118 to 177.  The fourth division consisted  of names of 178 to 267 witnesses.

   The Special Judge permitted persons shown as Nos.  4 and 8  in  the  first division to be examined as he  found  them alone  in  the said division as necessary witnesses and  the others  were  found unnecessary for the purpose  of  defence plea.   Regarding  the  second division  the  Special  Judge stated thus:

   Witness  Nos.9  to 117 have been cited as witnesses  to speak  about  the masonry works, wood works, painting  works etc.   Instead  of examining the huge number  of  witnesses, examination  of one or two engineers will be sufficient  and it would save the time also.

   About  the third division learned Special Judge observed that  since  all of them were cited only to speak about  the agriculture  and  business  income  of  the  accused   the appellant  can  advisedly confine to ten witnesses  in  that division.   Regarding the last division in the list  learned special judge observed thus:

   List  of  witness  Nos.178  to 267 have  been  cited  as witnesses to speak about the loans, gifts, etc.  Such a huge list  may  not  be necessary in view of Section 134  of  the Indian Evidence Act.  However, the accused could examine any 10 witnesses from them.

   Learned  single  judge of the High Court felt that  from the first division mentioned above the appellant can examine witnesses shown as Nos.  6 and 7 also and from the remaining divisions  the  appellant can choose ten more persons.   The petition  filed  in  the High Court was disposed of  in  the following terms:

   The  Special court is directed to permit the petitioner to  examine witnesses 1,4 to 7 and also 10 more witnesses in the  list  of  witnesses  118 to 267,  in  addition  to  the witnesses  already  permitted to be examined.  The order  of the Special Court is modified as stated above.  The criminal revision case is disposed of accordingly.

   Mr.  Sushil Kumar, learned senior counsel contended that once  the trial court has proceeded from the stage envisaged in  sub-section  (1) of Section 243 and passed over  to  the next  stage contemplated in sub-section (2) he has no  power to  sift  and  select witnesses from the list  submitted  by accused.   We  may  record, in fairness  to  learned  senior counsel, that he candidly conceded that no accused can claim a  right  to examine any number of witnesses on the  defence side.   This was stated by the learned counsel when we asked him  hypothetically- whether the accused can file a list of ten  thousand names as witnesses and ask the court to permit him to examine all of them.

   Section 5(1) of the P.C.  Act requires the Special Judge to follow the procedure prescribed by the court for trial of warrant  cases  by  magistrates.  Chapter XIX  of  the  Code contains the provisions for such trial and Section 243 falls within  the said chapter.  (The corresponding provisions  in the  old  Criminal Procedure Code were sub-sections  (8)  to (10)  of Section 251-A.) It is not disputed before us that a court  has  the  power to refuse to summon any person  as  a witness  on any of the three different grounds:  (1) If  any

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witness  is  cited for the purpose of vexation;  (2) If  any witness  is cited for causing delay;  (3) If any witness  is cited  for  defeating the ends of justice.  In fact  Section 243(2) of the Code incorporates such powers of the court.

   In the present case it was the ground of delay which the Special  Judge  countenanced as the ground for pruning  down the  massive  list of witnesses presented by the  appellant. No  doubt  the  time  which  would  consume  for  completely examining all the 267 witnesses on the defence side would be unimaginably  long if a court is compelled by law to exhaust such  a whopping list in its full swing.  The criminal trial would  only  limp  badly and procrastination  would  be  the inevitable consequence.  Normally no court would mind if the list  contains  only  a handful of names because  the  court would not then bother much about the delay factor.  But when the  list  contains such a crowd of names of  witnesses  the court  will  certainly make a serious exercise to  ascertain whether  examination of all those witnesses is necessary  in the   interest  of  justice  even  at  the  risk   of   such procrastination.

   Shri   Sushul  Kumar,  learned   senior  counsel   first contended  that the position envisaged in Section 243(1)  of the  Code without the interjection of Section 22 of the  P.C Act  has  a  different perception, and therefore,  once  the court  decided  to  call upon the accused to  enter  on  his defence  there is no discretion vested with the trial  judge to  vivisect the list for the purpose of eliminating certain names therefrom.  In order to understand the said contention we  would  extract Section 243 in its virgin form as  it  is incorporated in the Code.

243. Evidence for defence. -

   (1)  The accused shall then be called upon to enter upon his  defence  and produce his evidence;  and if the  accused puts  in any written statement, the Magistrate shall file it with the record.

   (2)  If  the  accused,  after he had  entered  upon  his defence,  applies to the Magistrate to issue any process for compelling  the attendance of any witness for the purpose of examination  or cross-examination, or the production of  any document  or  other thing, the Magistrate shall  issue  such process  unless he considers that such application should be refused  on  the ground that it is made for the  purpose  of vexation  or delay or for defeating the ends of justice  and such ground shall be recorded by him in writing.

   Provided  that,  when the accused has cross-examined  or had  the  opportunity of cross-examining any witness  before entering  on  his  defence, the attendance of  such  witness shall  not  be  compelled  under this  section,  unless  the Magistrate is satisfied that it is necessary for the ends of justice.

   Section  22 of the P.C.  Act has amended sub-section (1) of  Section 243 of the Code in its application to the  trial of offences under the P.C.  Act.  When Section 243(1) of the Code  is re-read with the aforesaid changes it would run  as follows:

   The  accused shall then be required to give in  writing

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at  once or within such time as the court may allow, a  list of  persons  (if  any) whom he proposes to  examine  as  his witnesses and of the documents (if any) on which he proposes to  rely, and he shall then be called upon to enter upon his defence and produce his evidence, and if the accused puts in any  written statement the magistrate shall file it with the record.

        The  position  of an accused who is involved  in  a under  the P.C.  Act is trial more cumbered than an  accused in  other  cases due to legislative curbs.  One of  them  is envisaged  in Section 22 of the P.C.  Act.  The court is not obliged to direct an accused involved under the P.C.  Act to enter  upon  his  defence until the Special  Court  has  the occasion  to see the list of his witnesses and also the list of  his  documents to be adduced in evidence on the  defence side.   An  accused in other cases has to be called upon  to enter  on  his  defence  irrespective of  whether  he  would propose to adduce defence evidence because it is a choice to be exercised by him only after he is called upon to enter on his defence.  But the accused under P.C.  Act need be called upon  to enter on his defence only after the trial judge has occasion to peruse the names of the witnesses as well as the purpose  of  examination of each one of them, and  also  the nature  of the documents which he proposed to adduce as  his evidence.

   In  this  context it would be pertinent to  examine  the purpose  behind it for the Parliament to make the  aforesaid change  as  for  the accused who gets involved  in  offences under  the  P.C.   Act.  A glance at the  short  legislative history on this aspect would reveal the purpose when Section 7-A  was introduced in the erstwhile P.C.  Act by Act 40  of 1964.   That section is pari materia with Section 22 of P.C. Act of 1988.  Section 7-A was intended to be absorbed in the corresponding  provision  (Section  251-A) of the  old  Code whenever the trial was for offences under P.C.  Act of 1947. But  it  must  be  remembered that  Parliament  enacted  the present  Code in the year 1973 and even then the legislature did  not  incorporate the wording in Section 7-A of the  old P.C.   Act of 1947 in Section 243(1) of the Code but allowed that  provision to be read in consonance with the  different procedure  prescribed for offences under the erstwhile  P.C. Act.   Now  in  the P.C.  Act of 1988 also  the  legislature retained  those  alterations  as  indicated  in  Section  22 thereof.

   Act  40 of 1964, through which Section 7A was introduced in  the erstwhile P.C.  Act, was passed by the Parliament on the  basis  of  Bill  No.67/64.  It  was  mentioned  in  the Statement  of  Objects and Reasons of the said  Bill,  inter alia, thus:

   The Committee on Prevention of Corruption was appointed in  1962 to review the problem of corruption and to  suggest measures  to  combat  it.  The Committee  has  made  various suggestions  for  dealing  with the problem and  has,  inter alia,  recommended  certain  changes in the  law  to  ensure speedy  trial  of cases of bribery, corruption and  criminal misconduct,  and  to make the law otherwise more  effective. The  Bill  is  intended  to give effect  to  such  of  these recommendations that have been accepted.

   It  is  thus  noticeable that one of  the  main  objects sought  to  be achieved through insertion of Section 7A  was

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speedy   trial  for  cases  relating   to  the  problem   of corruption.   When  we read Section 22 of the PC  Act  which requires  a particular procedure to be followed relating  to the  filing  of  list  of witnesses and  documents  for  the defence,  it  must  be borne in mind  that  the  legislative intent  for the aforesaid change in the procedure is  mainly for achieving expeditiousness of the trial.  It is true that the concept of speedy trial must apply to all trials, but in the trials for offences relating to corruption the pace must be  accelerated  with greater momentum due to a  variety  of reasons.   Parliament  expressed  grave   concern  over  the rampant  ever-growing corruption among public servants which has  been  a  major  cause for  the  demoralisation  of  the society.   When corrupt public servants are booked they  try to take advantage of the delay proned procedural trammels of our  legal  system by keeping the penal consequences at  bay for a considerable time.  It was this reality which impelled the Parliament to chalk out measures to curb procrastinating procedural clues.  Section 22 of the P.C.  Act is one of the measures  evolved to curtail the delay in corruption  cases. So  the  construction  of  Section 243(1)  of  the  Code  as telescoped  by  Section 22 of the PC Act must be  consistent with the aforesaid legislative intent.

   The  purpose  of  furnishing  a list  of  witnesses  and documents  to the Court before the accused is called upon to enter  on his defence is to afford an occasion to the  court to  peruse  the list.  On such perusal, if the  court  feels that  examination of at least some of the persons  mentioned in  the list is quite unnecessary to prove the defence  plea and  the  time  which  would be needed  for  completing  the examination   of  such  witnesses   would  only  result   in procrastination,  it is the duty of the court to short  list such  witnesses.   We may also add that if the  court  feels that the list is intended only to delay the proceedings, the court  is well within its powers to disallow even the  whole of it.

   Learned senior counsel made an endeavour to find support to  his contention from the decision of a Constitution Bench of  this  Court  in Ronald Wood Mathams vs.  State  of  West Bengal [1955 SCR 216].  In that case an accused filed a list of  15 witnesses to be examined for the defence.  Though the trial  court issued summons to those witnesses whose summons did not return served, and the court passed an order that no further process need be issued to those witnesses.  The case ended  in  conviction  of  the  accused  and  hence  it  was contended  before  the Supreme Court that the trial  of  the appellants had been vitiated by reason of the fact that they had no reasonable opportunity to examine their witnesses and that their convictions were accordingly bad.  The finding of the  Supreme Court in this regard was that it is  essential that rules of procedure designed to ensure justice should be scrupulously followed and courts should be jealous in saying that  there  is no breach of them. There is nothing in  the decision  to help the appellant to have an interpretation in consonance with his contention.

   In  this case, the High Court as per the impugned  order has  further enlarged the number of witnesses to be examined on  the  defence  side.   As it  is,  the  appellant  cannot complain  now that he did not get the opportunity to  adduce his  evidence.  At any rate, we do not think it necessary to interfere  with the impugned orders as the pruning  exercise undertaken  by the trial court and the High Court was within

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the limits permitted by law.

   Nevertheless,  we  would  add    after  the   appellant completes his evidence in accordance with the permission now granted  as  per  the  impugned orders, it is  open  to  the appellant to convince the trial court that some more persons need  be  examined  in  the  interest  of  justice,  if  the appellant  then thinks that such a course is necessary.  The trial  court will then decide whether it is essential for  a just  decision of the case to examine more witnesses on  the defence  side.   If the Court is so satisfied,  the  Special Judge  can  permit the appellant to examine such  additional witnesses the examination of whom he considers essential for a  just  decision of the case or he can exercise the  powers envisaged  in  Section  311 of the Code in respect  of  such witnesses.   We cannot, at present, oversee the situation as to how the trial court could then reach such a satisfaction. Hence  we  leave it to the trial court to do the needful  at the appropriate stage.

   With the above observations we dispose of the appeal.