RAVEENDRAN Vs. PRAKASAN

JUDGEMENT

(1.) An interesting question arises for consideration in this petition. For understanding the same, short facts are to be narrated. Petitioner filed a private complaint against two persons, arraying them as accused. First person was described in the complaint as the person who published bit notice printed in Akshara Printers, Kara, Kodungallur Taluk. The printer of Akshara Printers, 2nd respondent herein was described as second accused in the complaint. Offence alleged against them was under S.500 read with S.34 IPC. That complaint was filed on 13-1-1987. Along with the complaint he filed Criminal M. P. 109/87 praying for issue of summons to 2nd respondent herein for production of manuscript of the publication. Second respondent in pursuance to the notice issued by the court produced the manuscript before court. Sworn statement of the complainant was recorded on 16-5-1987. After considering the complaint and sworn statement when the court thought it proper to proceed against the accused for offences under S.500 IPC read with S.34 IPC, summons were issued to the accused. When the case came up for trial, the complainant while giving evidence as P W.1 wanted to mark the manuscript produced by 2nd respondent as evidence in the case. Marking of that manuscript was objected to on the ground that the said document which was compelled to be produced by 2nd respondent cannot be made use of against him and in case it is so done it will contravene his rights under Art.20(3) of the Constitution. This objection was found favour with the learned Magistrate. Accordingly, he disallowed the prayer of the petitioner to mark that document in evidence. That order is under challenge.

(2.) In State of Bombay v. Kathi Kalu ( AIR 1961 SC 1808 ) the Supreme Court observed:

(3.) At the time when the manuscript was produced before court, was second respondent, an accused before court In the complaint filed on 13-1-1987 2nd respondent was described as 2nd accused. But can he be taken as a person accused in the case In a private complaint filed before court the Magistrate is bound to examine upon oath the complainant and the witnesses present. He may postpone the issue of process against the accused and enquire into the cases himself for deciding whether or not there is sufficient ground for proceeding with the complaint as contemplated by S.202 of the Code of Criminal Procedure. After such an enquiry, if the Magistrate is of opinion that there is no sufficient ground for proceeding he should dismiss the complaint as provided by S.203 of the Code. If in the opinion of the magistrate there is sufficient ground for proceeding with the trial, then summons or warrant as the case may be, should be issued to the accused. Only when such summons or warrant is issued to the accused, can the respondent in the complaint be described as an accused. This aspect of the matter was considered by the Supreme Court in S.S. Khanna v. Chief Secretary, Patna ( AIR 1983 SC 595 ). Their Lordships observed: