Rajesh Mahadev Kunte v. Rahul Rajeev Gandhi and Anr.

Bombay HC22 Jun 2022WP/799/2022

Case brief

AI extract

What is this about?

In a criminal defamation summons trial, the High Court rejected a writ petition challenging the trial court's refusal to issue a witness summons for a notary. The court held that the complainant must first prove his own case on oath before examining other witnesses to avoid unnecessary delay.

What did the court decide?

Criminal Writ Petition No.799 of 2022 stands rejected and disposed off.

What the court decided

AI extract

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1 of 11 32.WP.799.2022.doc

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

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CRIMINAL WRIT PETITION NO.799 OF 2022

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Rajesh Mahadev Kunte, Age 47 years,
Occ.Business, R/o.Kanchangauri,
Kasaral Bhiwandi, District Thane.Petitioner

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versus
1. Rahul Rajeev Gandhi,
Age 50 years, Occ.Politician,
R/o.12, Tughlak Lane, New Delhi-110 011.

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2. The State of Maharashtra.Respondents

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Mr.Tapan Thatte, Advocate for petitioner.
Mr.Sudeep Pasbola i/by Mr.Kushal Mor, Advocates for respondent
no.1.
Mr.S.R.Agarkar, APP, for State.

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CORAM :PRAKASH D. NAIK, J.

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DATE :22nd June 2022

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PC :

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1.The petitioner has challenged order dated 22nd February 2022
passed by learned Judicial Magistrate, First Class, at Bhivandi below
Exhibit-94 in Summary Criminal Case No.2425 of 2014 rejecting the
application for issuance of witness summons.

Rajesh Mahadev Kunte Vs Rahul Rajeev Gandhi and Anr. — Bombay HC (2022) — LawSathi Research

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2.The petitioner is the complainant in Summary Criminal Case
no.2425 of 2014. The complaint was filed on 18th March 2014. The
complainant has alleged that while addressing the election campaign
rally on 6th March 2014, the accused made defamatory statements.
Process was issued for the offence punishable u/s.500 of Indian
Penal Code.

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4.The petitioner/complainant preferred an application before the
Trial Court to exhibit a transcript, copy of the speech made by
respondent no.1 under Section 294 of Code of Criminal Procedure
(`Cr.P.C.’). The said application was rejected by order dated 10th
September 2018. Aggrieved by the said order the petitioner had
preferred Criminal Writ Petition No.376 of 2019 before this Court.
The said petition was rejected by this Court by order dated 20th
September 2021, with observation that there is no infirmity in the
order dated 10th September 2018 passed by learned JMFC, Bhiwandi
below Exhibit-61 in Summary Criminal Case No.2425 of 2014.

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5.The petitioner preferred application below Exhibit-94 before
the Court of learned JMFC, Bhiwandi for issuing witness summons to
Dev Sumon Mohanpuria. The said application was preferred on 22nd
February 2022. The application was opposed by the accused by
written say. Vide order dated 22nd February 2022, the learned JMFC,
Bhiwandi rejected the said application with directions to both the
parties to avoid unnecessary adjournments and co-operate for speedy
trial

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against the issue of process order passed in the present complaint.
The affidavit filed in the said writ petition was affirmed before the
notary Mr.Dev Suman Mohanpuria on 15th December 2014 at
Sr.No.687/2014. The accused denied admitting the said affidavit
and annexure which were part of the writ petition, though notarized.
The facts admitted in the notarized affidavit in the said petition are
required to be proved before the Trial Court. The admission of
defamatory text speech contained and incorporated in the affidavit in
said writ petition stands on higher pedestal a proof of facts, which
the complainant is required to prove by oral evidence. It is further
submitted that the learned Magistrate has assumed that the law
mandates that in summons trials, the complainant is duty bound to
step in the witness box first before he can examine any other witness.
For that purpose the learned Magistrate had relied on Section 254(1)
of Cr.P.C. There is no law which requires that in all summons trials
the complainant himself must step into witness box first. No words
of that section can be reasonably interpreted to connote that
meaning. The learned Magistrate has held that to make evidence of
notary relevant, it would be necessary to first examine the
complainant. This reasoning does not find any support from
provisions of the Evidence Act. The Evidence Act and Cr.P.C allows
the parties at the trial to examine witnesses in any order they deem
proper. Although Section 135 of Evidence Act confer certain
discretion over the order of production and examination of the
witness to the Court, it is settled principle of law that the discretion
has to be exercised on sound and compelling circumstances. The
learned Magistrate has failed to rely on any rationale to compel the
examination of the complainant first.

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8.Learned advocate for respondent no.1 urged that the
application preferred by the petitioner-complainant before the Trial
Court was devoid of merits. The matter is pending for recording
evidence of complainant on 22nd February 2022. The complainant
has to step in to witness box and depose on oath. The complainant
has right to examine witnesses but subsequently after his
examination. Reference was made to Section 135 and 136 of the
Evidence Act. The learned Magistrate has rightly rejected the
application by assigning cogent reasons. In the factual matrix of this
case the learned Magistrate has exercised its discretion in rejecting
the application. Reliance is placed on the decision of High Court of
Rangoon in the case of Shwe Pru Vs. The King4.

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9.Having heard both the sides and perusing the documents on
record, it is apparent that the petitioner has filed a complaint
alleging defamation by respondent no.1. The complaint was due for
recording the evidence. Initially the petitioner had preferred an
application u/s.294 of Cr.P.C for exhibiting the transcript of the

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alleged speech in evidence and the said application was rejected by
the Court of learned JMFC vide order dated 10th September 2018.
The said order was challenged before this Court by preferring
Criminal Writ Petition No.376 of 2019. The petition was dismissed
by this Court by order dated 20th September 2021. The petitioner
has contended that the said order has been challenged before the
Supreme Court by preferring Special Leave Petition which is pending.
The issue which had arisen in the present petition is about the
application preferred by the petitioner issuing witness summons to
Dev Suman Mohanpuria. According to petitioner, in the writ petition
preferred by the petitioner before this Court, he had filed certain
documents as its annexures. The affidavit filed in the said writ
petition was affirmed before the notary Dev Suman Mohanpuria on
15th December 2014. The accused has denied or admit the affidavit
and annexures which are part of the petition although the affidavit
was notarized before the High Court and Supreme Court and the
facts admitted in the notarized affidavit in the petition are required
to be proved before the Court. The course open to prove that
affidavit is to examine the notary. The said application has been
rejected as stated hereinabove by the Trial Court vide order dated
22nd February 2022. The case of the petitioner is that the accused in
his speech dated 6th March 2014 has uttered the words which
amounts to defamation. The petitioner had set out a list of witnesses
to be examined and list of documents sought to be relied upon in the
complaint. The order of process was challenged by the respondent
no.1 by filing Writ Petition No.4960 of 2014 challenging order of
process which petition was dismissed by this Court. The said order
was challenged before Supreme Court and the Special Leave Petition
was dismissed. In the petition the transcript of speech was annexed

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on 12th June 2018. The petitioner filed an application u/s.294 of
Cr.P.C and called upon the accused to admit or deny the genuineness
and correctness of certified copy of the petition along with annexures
and affidavit thereto filed by respondent no.1 in this Court. The said
application was “filed” as according to the petitioner, the respondent
no.1 had not disputed the making of speech and annexed the
transcript of the speech to the petition. Say was filed by the accused.
The learned Magistrate by order dated 12th June 2018 observed that
the accused is admitting only the documents such as, copy of the
Writ Petition No.4960 of 2014 and affidavit. Accordingly the
document is exhibited. The petitioner filed another application on
the same day and prayed for exhibiting transcript of speech. The said
application was rejected which was challenged before this Court by
preferring Writ Petition No.376 of 2019. This Court as stated above
has dismissed the said petition by order dated 20th September 2021.
While rejecting the said petition it was observed that the accused
cannot be completed to admit/deny the document. The right of the
accused to remain silent flows from article 20(3) of the Constitution
of India. Thereafter the impugned application was preferred seeking
issuance of summons to the aforesaid witness which has been
rejected by the Trial Court.

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10.The respondent no.1 had in fact filed say opposing impugned
application and stated that the complainant can examine the
witnesses but after his examination is completed. The application
preferred by the complainant can be kept pending and accused may
be allowed to file reply and in the mean time the evidence of
complainant be recorded in the interest of justice. The Trial Court
has passed well reasoned order and do not find any infirmity to set

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aside the same. The learned JMFC has observed that the complaint
was instituted on 10th March 2014. It is a summons triable case.
Pleas of accused was recorded on 12th June 2018. On the same day
application Exhibit-61 was preferred by the complainant u/s.294 of
Cr.P.C which was rejected by order dated 10th September 2018. The
matter was due for recording evidence of complainant. On 29th
January 2021, 5th February 2022 and 10th February 2022 directions
were given to the complainant to proceed with his evidence.
However, the complainant sought adjournments from time to time.
It is a matter of record that complainant has not examined himself
till today. The case is fixed for evidence of complainant. It is also a
matter of record that the question of admissibility of documents
mentioned in the application is already decided vide order below
Exhibit-61 dated 10th September 2018. The complainant has to
begin the evidence with his deposition to prove the basic fact or
cause for which the complaint is instituted. Later he may examine
any other witnesses in support of his contention. It is worth to note
that the proposed witness is not a witness of a fact in question but he
is the notary before whom the accused affirmed affidavit filed before
the High Court. Thus, having regard to the nature of allegations and
facts of the case calling the proposed witness at this stage of the
proceedings without evidence of complainant would;d result in
unnecessary delay in the proceedings. The complainant has not
given any reason in the application as to why complainant did not
want to examine himself first and intends to examine the person
before whom accused affirm affidavit after filing of complaint. The
present case is summons trial case. In the light of the facts and
discussion, it is necessary that the complainant should first examine
himself. So far as issuing summons to propose witness is concerned,

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the complainant may prefer such application after he examine
himself, if required. It is essential that the complainant must prove
his case first by his own deposition. Having regard to the facts of the
case and role of proposed witness in the present proceedings, the
testimony of proposed witness would be relevant once the
examination of complainant is over. The Court also noted the
submission of the counsel for complainant that there is no provision
that the complainant must be examined first. The present complaint
is summons trial case. It would be necessary to refer to provisions of
Chapter-XX, Section 254(1) of Cr.P.C, which provides that if the
Magistrate does not convict the accused u/s.254 and 253, the
Magistrate shall proceed to hear the prosecution and take all such
evidence as may be produced in support of prosecution and also to
hear the accused and take such evidence as he produce in his
defence. It is further observed that the words `Magistrate shall
proceed to hear the prosecution” connotes that the prosecution must
begin with the evidence. Thus, the complainant must begin with his
deposition on oath to prove the fact which give rise to present
complaint. Moreover, it is not the case of the complainant that he is
not going to examine himself in the present matter. Thus, at this
stage of proceedings, no purpose would be served to examine the
proposed witness unless complainant first prove his own contention
on oath in accordance with the provisions of law.

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11.It is pertinent to note that the complainant has alleged in the
complaint that the defamatory speech was addressed by the
respondent-accused in a rally for election campaign on 6th March
2014. It is also alleged that the petitioner is associated with RSS and
hurt by the defamatory imputation made by the accused. The

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complainant has also stated that he is the aggrieved person within
the meaning of Section 199(1) of Cr.P.C and entitled to file the
complaint. Thus, the locus of the complainant is also in question
about his right to initiate the defamation proceedings in view of
Section 199(1) of Cr.P.C. In the context of the factual matrix of this
case and the reasons assigned by the Trial Court for rejecting the
application of the petitioner holding that the complainant first prove
his own contention on oath in accordance with provisions of law, I do
not find any reason to deviate from the observations and the
findings of the Trial Court while rejecting the application Exhibit-94.

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12.Section 135 of the Evidence Act incorporated under Chapter X
relating to examination of witnesses refers to order of production
and examination of witnesses. As per the said provision the order in
which witnesses are produced and examined shall be regulated by
law and practice for the time being relating to civil and criminal
procedure respectively and in the absence of any such law, by the
discretion of the Court. Section 136 of the Evidence Act relates to
the Courts discretion to decide the admissibility of evidence. The
section provides that when either party proposes to give any fact, the
Judge may ask the party proposing to give evidence in what manner
the alleged fact, if proved, would be relevant and the Judge shall
admit the evidence if he thinks that the fact if proved would be
relevant and not otherwise.

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13.In the case of State of Kerala Vs.Rasheed (supra), it was held
that the norm in any criminal trial for examination-in-chief of
witness to be carried out first, followed by cross-examination and re-
examination, if required, in accordance with Section 138 of Evidence

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Ac, Section 231(2) of Cr.P.C, however, confers a discretion on Judge
to defer cross-examination of any witness until any other witness or
witnesses have been examined or recall any witness for further cross-
examination in appropriate cases. Judicial discretion has to be
exercised in consonance with statutory frame work and context while
being aware of reasonably forcible consequences. Parties seeking
deferral under 231(2) Cr.P.C must give sufficient reasons to invoke
exercise of discretion by Judge and deferral cannot be ascertained as
a matter of right. There cannot be straight jacket formula providing
for grounds on which judicial discretion u/s.231(2) of Cr.P.C can be
exercised. Exercise of discretion has to take place on case to case
basis. Guiding principle for a Judge u/s.231(2) of Cr.P.C is to
ascertain whether prejudice would be caused to the parties seeking
deferral if application is dismissed. Balance must be struck in the
rights of the accused and prerogative of the prosecution to lead
evidence. The Court also enumerated the factors to be taken into
consideration while exercising such discretion.

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In the case of Karmapa Charitable Trust and another (supra),
the Sikkim High Court has observed that undoubtedly if any exigency
or circumstances so require, the law provides that the Court shall
exercise its discretion, otherwise it shall be for the party concerned to
decide which witness he seeks to examine first and cannot be based
on the dictate of the opposite party or for their convenience.

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In the case of Sanjoy Mehta (supra), the Calcutta High Court
has observed that if exigency of the circumstances so requires in an
appropriate case, the Court has always a discretion to direct that the
witnesses be examined in a particular order, but in the absence of

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In the case of Shwe Pru Vs. The King (supra), the High Court
of Rangoon had observed that the Trial was unsatisfactory in number
of respects but especially in regard to the failure to examine the
witnesses for the prosecution in their proper order. In a trial of
importance therein, the public prosecutor should be required as far
as possible to examine his witnesses so as to bring out the facts in
their logical sequence and particularly the expert witnesses, such as,
medical witness, ought not to be examined at the early stage of trial,
when it is impossible to realize on what points their opinion is
necessary.

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14.Applying the principles enunciated in various decisions and
considering the factual matrix of the present case, the reasons
assigned by the Trial Court while adjudicating the application, I am
of the opinion that the discretion exercised by the learned Magistrate
is not arbitrary or contrary to provisions of law. The impugned order
does not require any interference and it has to be confirmed. Hence
I pass following order :

Rajesh Mahadev Kunte v. Rahul Rajeev Gandhi and Anr.

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