Case Note & Summary
The petitioner, Kalika Nagari Sahakari Patsanstha Maryadit, a cooperative society, was the complainant in STC No. 531/2009 pending before the Judicial Magistrate (First Class), Ahmednagar, against the respondent, Ashok Bansilal Bora, for an offence under the Negotiable Instruments Act, 1881. After the prosecution evidence was adduced and the respondent was examined under Section 313 of the Code of Criminal Procedure, 1973 (CrPC), the respondent filed an application (Exhibit 60) dated 25-1-2012 seeking summons to the Chairman of the petitioner society to appear as a defence witness and produce certain documents. The Magistrate allowed the application and issued summons. The petitioner then filed an application (Exhibit 62) opposing the summons, which was rejected by the Magistrate on 25-10-2012. Aggrieved, the petitioner filed the present criminal writ petition. The main contention of the petitioner was that it is not permissible in law for the same person to be examined as a prosecution witness and also as a defence witness, relying on the Madras High Court decision in M/s. Agate Finance Limited v. M/s. L.S.P. Agro Limited. The High Court examined the facts and found that the Chairman of the petitioner society had not been examined as a prosecution witness. The court distinguished the cited case, noting that in that case the same person had already been examined as a prosecution witness. The court held that merely because the Chairman is the Chairman of the complainant society and likely to be disposed in favour of the society, it does not mean he cannot be called as a defence witness. The court found no error in the Magistrate's order and dismissed the petition, upholding the summons to the Chairman as a defence witness.
Headnote
A) Criminal Procedure - Defence Witness - Summoning of Chairman of Complainant Society - Section 243, Code of Criminal Procedure, 1973 - The accused sought to summon the Chairman of the complainant society as a defence witness after the prosecution evidence was closed and the accused's examination under Section 313 CrPC was completed. The Magistrate allowed the application. The complainant challenged the order, arguing that the same person cannot be both a prosecution and defence witness. The High Court held that since the Chairman had not been examined as a prosecution witness, there was no legal bar to summoning him as a defence witness. The court distinguished the case of M/s. Agate Finance Limited v. M/s. L.S.P. Agro Limited, where the same person had already been examined as a prosecution witness. The petition was dismissed. (Paras 3-6)
Issue of Consideration
Whether the Chairman of the complainant society, who has not been examined as a prosecution witness, can be summoned as a defence witness under the Code of Criminal Procedure, 1973.
Final Decision
The High Court dismissed the criminal writ petition, upholding the Magistrate's order dated 25-10-2012. The court held that since the Chairman of the petitioner society had not been examined as a prosecution witness, there was no legal bar to summoning him as a defence witness. The petition was dismissed and rule discharged.
Law Points
- Same person cannot be both prosecution and defence witness
- Chairman of complainant society can be summoned as defence witness if not already examined as prosecution witness
- Section 313 CrPC examination does not bar summoning defence witnesses
