Madras High Court
Gayes vs State Rep. By Its on 5 September, 2018
Author: N.Anand Venkatesh
Bench: N.Anand Venkatesh
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 05.09.2018 CORAM THE HON'BLE MR.JUSTICE N.ANAND VENKATESH CRL.O.P.(MD)No.10600 of 2016 and CRL.M.P.(MD)No.5245 of 2016 Gayes ... Petitioner/Accused No.1 -Vs- State rep. by its, Inspector of Police, Kulasekaranpattinam Police Station, Thoothukudi District. (Crime No.325 of 2013) ... Respondent/Complainant Prayer: Criminal Original petition is filed under Section 482 of Criminal Procedure Code, to call for the records and to set aside the order passed in Crl.M.P.No. 113 of 2016 in S.C.No.21 of 2015, dated 17.06.2016, passed by the learned I Additional District and Sessions Judge, Thoothukudi. !For Petitioner : Mr.N.R.Elango for Mr.S.Ravi ^For Respondent : M/s.S.Bharathi, Government Advocate (Crl. Side) :ORDER
This Criminal Original Petition has been filed by the petitioner challenging the order passed by the learned I Additional District and Sessions Judge, Thoothukudi, allowing the application filed under Section 311 of Cr.P.C permitting the respondent to further cross examine P.W.4 and re- examine P.Ws.1 to 3 and P.Ws.5 to 16.
2.From the records, it is found that the prosecution had already examined sixteen witnesses and they were also cross examined by the accused persons. Thereafter, the questioning under Section 313 Cr.P.C was also completed and the case reached the stage of final arguments. At that point of time, the respondent had filed an application under Section 311 of Cr.P.C.
3.A reading of the petition filed by the respondent does not contain any reason as to why the prosecution has decided to wholesale recall almost all the witnesses P.Ws.1 to 3 and P.Ws.5 to 16 in order to re-examine them. Similarly, the petition does not pointed out the reason as to why a further cross examination of P.W.4 has to be conducted.
4.The Court below has allowed the application primarily on the ground of interest of justice and in order to allow the prosecution to prove the case beyond reasonable doubt and for that purpose an opportunity must be given to the prosecution to recall the witnesses. Apart from this no other reason has been given by the court below to permit the prosecution to virtually reopen and examine almost all the witnesses.
5.The learned Senior counsel representing the petitioner would submit that insofar as P.W.4 is concerned, the said witness had turned hostile. Therefore, at the best, the prosecution can only treat him as hostile witness and cross examine him by virtue of Section 154 of the Indian Evidence Act by showing the 161 statement recorded from the said witness and put questions to contradict his version. According to the learned Senior counsel this exercise has already been done by the prosecution when P.W.4 was treated as a hostile witness and cross examined by the prosecution.
6.The learned Senior counsel further submits that insofar as the other witnesses are concerned, they have been examined in chief and they have also been cross examined by the prosecution. Thereafter, the prosecution cannot be allowed to reopen and call upon the witnesses all over again in the name of re-examination. The learned Senior counsel brought to the notice of this Court Section 138 of the Indian Evidence Act and submitted that insofar as re-examination is concerned, the same shall be done only to explain matters referred to in the cross examination or if any new matter has come to the knowledge of the party, then with the permission of the Court, the witness can be re-examined and in which case, the adverse party can further cross examine the witness. According to the learned Senior counsel, the petition filed by the prosecution does not reveal any new fact that has come to the knowledge of the prosecution.
7.The learned Senior counsel referred to the following Judgments.
1.Rajaram Prasad Yadav Vs. State of Bihar and another reported in (2013) 14 Supreme Court Cases 461.
2.Martin Manrique Mansour Vs. State Rep. by The Inspector of Police, Thirunagar Police Station, Madurai reported in 2016-1-L.W.(Crl.) 637.
8.Per contra the learned Government Advocate (Criminal Side) would submit that Section 311 Cr.P.C petition can be filed at any stage of the proceedings. The learned counsel would further submit that the Court below has a wide discretionary power under Section 311 of Cr.P.C and the same can be used to ensure interest of justice. According to the learned counsel, the Court below has exercised this discretion and has thought it fit to allow the application filed under Section 311 of Cr.P.C and therefore this Court in exercise of its jurisdiction under Section 482 of Cr.P.C should not interfere with the same.
9.This Court has carefully considered the rival submissions made on either side and has also taken into consideration the materials placed before the Court.
10.In this case, the prosecution has examined 16 witnesses and all these witnesses have been cross examined by the accused persons. Thereafter, the 313 questioning is also completed and the matter stood at the stage of final arguments. At this point of time, the application came to be filed by the respondent under Section 311 of Cr.P.C to recall P.W.4 for further cross examination and to recall P.Ws.1 to 3 and P.Ws.5 to 16 for re-examination. The application filed only reveals one fact as the reason for recalling the witnesses, namely that certain material facts were inadvertently omitted to be asked during the course of cross examination of P.W.4 and during the examination of P.Ws.1 to 3 and P.Ws.5 to 16. Apart from this, no other reason has been stated in the petition filed for recalling the witnesses.
11.The accused persons had filed a counter to the said petition. In the said counter the entire cross examination of P.W.4 has been extracted. Further, in the counter affidavit it has also been mentioned that earlier a petition was filed in Crl.M.P.No.161 of 2015 and the said petition was dismissed as withdrawn. This attempt was made in the year 2015 and subsequently on the very same cause of action, the subsequent petition for recall of all witnesses was filed in the year 2016.
12.It will be useful to extract the relevant portions from the Judgment cited by the learned Senior counsel for the petitioner. In Rajaram Prasad Yadav Vs. State of Bihar and another reported in (2013) 14 Supreme Court Cases 461, the Honourable Supreme Court has gone into the scope of ambit of Section 311 of Cr.P.C and has propounded the law on this subject. The relevant portions are extracted herein.
?14. A conspicuous reading of Section 311 Cr.P.C. would show that widest of the powers have been invested with the Courts when it comes to the question of summoning a witness or to recall or re-examine any witness already examined. A reading of the provision shows that the expression ?any? has been used as a pre-fix to ?court?, ?inquiry?, ?trial?, ?other proceeding?, ?person as a witness?, ?person in attendance though not summoned as a witness?, and ?person already examined?. By using the said expression ?any? as a pre-fix to the various expressions mentioned above, it is ultimately stated that all that was required to be satisfied by the Court was only in relation to such evidence that appears to the Court to be essential for the just decision of the case. Section 138 of the Evidence Act, prescribed the order of examination of a witness in the Court. Order of re- examination is also prescribed calling for such a witness so desired for such re-examination. Therefore, a reading of Section 311 Cr.P.C. and Section 138 Evidence Act, insofar as it comes to the question of a criminal trial, the order of re-examination at the desire of any person under Section 138, will have to necessarily be in consonance with the prescription contained in Section 311 Cr.P.C. It is, therefore, imperative that the invocation of Section 311 Cr.P.C. and its application in a particular case can be ordered by the Court, only by bearing in mind the object and purport of the said provision, namely, for achieving a just decision of the case as noted by us earlier. The power vested under the said provision is made available to any Court at any stage in any inquiry or trial or other proceeding initiated under the Code for the purpose of summoning any person as a witness or for examining any person in attendance, even though not summoned as witness or to recall or re-examine any person already examined. Insofar as recalling and re-examination of any person already examined, the Court must necessarily consider and ensure that such recall and re-examination of any person, appears in the view of the Court to be essential for the just decision of the case. Therefore, the paramount requirement is just decision and for that purpose the essentiality of a person to be recalled and re-examined has to be ascertained. To put it differently, while such a widest power is invested with the Court, it is needless to state that exercise of such power should be made judicially and also with extreme care and caution.
15. In this context, we also wish to make a reference to certain decisions rendered by this Court on the interpretation of Section 311 Cr.P.C. where, this Court highlighted as to the basic principles which are to be borne in mind, while dealing with an application under Section 311 Cr.P.C.
15.1. In the decision reported in Jamatraj Kewalji Govani vs. State of Maharashtra, this Court held as under in paragraph 14: (AIR pp.182-83) ?14. It would appear that in our criminal jurisdiction, statutory law confers a power in absolute terms to be exercised at any stage of the trial to summon a witness or examine one present in court or to recall a witness already examined, and makes this the duty and obligation of the Court provided the just decision of the case demands it. In other words, where the court exercises the power under the second part, the inquiry cannot be whether the accused has brought anything suddenly or unexpectedly but whether the court is right in thinking that the new evidence is needed by it for a just decision of the case. If the court has acted without the requirements of a just decision, the action is open to criticism but if the court's action is supportable as being in aid of a just decision the action cannot be regarded as exceeding the jurisdiction.?
(Emphasis supplied) 15.2. In the decision reported in Mohanlal Shamji Soni vs. Union of India, this Court again highlighted the importance of the power to be exercised under Section 311 Cr.P.C. as under in paragraph 10: (SCC p.277) ?10. ... In order to enable the court to find out the truth and render a just decision, the salutary provisions of Section 540 of the Code (Section 311 of the new Code) are enacted where under any court by exercising its discretionary authority at any stage of enquiry, trial or other proceeding can summon any person as a witness or examine any person in attendance though not summoned as a witness or recall or re- examine any person in attendance though not summoned as a witness or recall and re-examine any person already examined who are expected to be able to throw light upon the matter in dispute; because if judgments happen to be rendered on inchoate, inconclusive and speculative presentation of facts, the ends of justice would be defeated.?
15.3. In the decision in Raj Deo Sharma (II) vs. State of Bihar, the proposition has been reiterated as under in paragraph 9:(SCC p.613) ?9. We may observe that the power of the court as envisaged in Section 311 of the Code of Criminal Procedure has not been curtailed by this Court. Neither in the decision of the five-Judge Bench in A.R. Antulay case nor in Kartar Singh case such power has been restricted for achieving speedy trial. In other words, even if the prosecution evidence is closed in compliance with the directions contained in the main judgment it is still open to the prosecution to invoke the powers of the court under Section 311 of the Code. We make it clear that if evidence of any witness appears to the court to be essential to the just decision of the case it is the duty of the court to summon and examine or recall and re-examine any such person.? (emphasis supplied) 15.4. In U.T. of Dadra and Nagar Haveli and Anr. vs. Fatehsinh Mohansinh Chauhan the decision has been further elucidated as under in paragraph 15:
(SCC p.583) ?15. A conspectus of authorities referred to above would show that the principle is well settled that the exercise of power under Section 311 Cr.P.C should be resorted to only with the object of finding out the truth or obtaining proper proof of such facts which lead to a just and correct decision of the case, this being the primary duty of a criminal court. Calling a witness or re-examining a witness already examined for the purpose of finding out the truth in order to enable the court to arrive at a just decision of the case cannot be dubbed as filling in a lacuna in the prosecution case unless the facts and circumstances of the case make it apparent that the exercise of power by the court would result in causing serious prejudice to the accused resulting in miscarriage of justice.? (emphasis supplied) 15.5. In Iddar vs. Aabida - AIR 2007 SC 3029, the object underlying under Section 311 Cr.P.C., has been stated as under in paragraph 9:-
?9. ... The object underlying Section 311 of the Code is that there may not be failure of justice on account of mistake of either party in bringing the valuable evidence on record or leaving ambiguity in the statements of the witnesses examined from either side. The determinative factor is whether it is essential to the just decision of the case. The section is not limited only for the benefit of the accused, and it will not be an improper exercise of the powers of the court to summon a witness under the section merely because the evidence supports the case for the prosecution and not that of the accused. The section is a general section which applies to all proceedings, enquiries and trials under the Code and empowers Magistrate to issue summons to any witness at any stage of such proceedings, trial or enquiry. In Section 311 the significant expression that occurs is 'at any stage of inquiry or trial or other proceeding under this Code'. It is, however, to be borne in mind that whereas the section confers a very wide power on the court on summoning witnesses, the discretion conferred is to be exercised judiciously, as the wider the power the greater is the necessity for application of judicial mind.
(emphasis supplied) 15.6. In P. Sanjeeva Rao vs. State of A.P., the scope of Section 311 Cr.P.C.
has been highlighted by making reference to an earlier decision of this Court and also with particular reference to the case, which was dealt with in that decision in paragraphs 20 and 23, which are as under: (SCC pp.63-64) ?20. Grant of fairest opportunity to the accused to prove his innocence was the object of every fair trial, observed this Court in Hoffman Andreas v. Inspector of Customs. The following passage is in this regard apposite: (SCC p.432, para 6) '6. ....In such circumstances, if the new counsel thought to have the material witnesses further examined, the Court could adopt latitude and a liberal view in the interest of justice, particularly when the court has unbridled powers in the matter as enshrined in Section 311 of the Code. After all the trial is basically for the prisoners and courts should afford the opportunity to them in the fairest manner possible.'
23. We are conscious of the fact that recall of the witnesses is being directed nearly four years after they were examined-in-chief about an incident that is nearly seven years old. Delay takes a heavy toll on the human memory apart from breeding cynicism about the efficacy of the judicial system to decide cases within a reasonably foreseeable time period. To that extent the apprehension expressed by Mr. Raval, that the prosecution may suffer prejudice on account of a belated recall, may not be wholly without any basis. Having said that, we are of the opinion that on a parity of reasoning and looking to the consequences of denial of opportunity to cross- examine the witnesses, we would prefer to err in favour of the appellant getting an opportunity rather than protecting the prosecution against a possible prejudice at his cost. Fairness of the trial is a virtue that is sacrosanct in our judicial system and no price is too heavy to protect that virtue. A possible prejudice to prosecution is not even a price, leave alone one that would justify denial of a fair opportunity to the accused to defend himself.?
(emphasis supplied) 15.7. In a recent decision of this Court in Sk. Jumman vs. State of Maharashtra, the above referred to decisions were followed.
16. Again in an unreported decision rendered by this Court dated 08.05.2013 in Natasha Singh vs. CBI, where one of us was a party, various other decisions of this Court were referred to and the position has been stated as under in paragraphs 15 and 16: (SCC pp.748-49) ?15. The scope and object of the provision is to enable the Court to determine the truth and to render a just decision after discovering all relevant facts and obtaining proper proof of such facts, to arrive at a just decision of the case. Power must be exercised judiciously and not capriciously or arbitrarily, as any improper or capricious exercise of such power may lead to undesirable results. An application under Section 311 Cr.P.C. must not be allowed only to fill up a lacuna in the case of the prosecution, or of the defence, or to the disadvantage of the accused, or to cause serious prejudice to the defence of the accused, or to give an unfair advantage to the opposite party. Further the additional evidence must not be received as a disguise for retrial, or to change the nature of the case against either of the parties. Such a power must be exercised, provided that the evidence that is likely to be tendered by a witness, is germane to the issue involved. An opportunity of rebuttal, however, must be given to the other party. The power conferred under Section 311 Cr.P.C. must, therefore, be invoked by the Court only in order to meet the ends of justice, for strong and valid reasons, and the same must be exercised with great caution and circumspection. The very use of words such as 'any Court', 'at any stage', or 'or any enquiry, trial or other proceedings', 'any person' and 'any such person' clearly spells out that the provisions of this section have been expressed in the widest possible terms, and do not limit the discretion of the Court in any way. There is thus no escape if the fresh evidence to be obtained is essential to the just decision of the case. The determinative factor should, therefore, be whether the summoning/recalling of the said witness is in fact, essential to the just decision of the case.
16. Fair trial is the main object of criminal procedure, and it is the duty of the court to ensure that such fairness is not hampered or threatened in any manner. Fair trial entails the interests of the accused, the victim and of the society, and therefore, fair trial includes the grant of fair and proper opportunities to the person concerned, and the same must be ensured as this is a constitutional, as well as a human right. Thus, under no circumstances can a persons right to fair trial be jeopardized. Adducing evidence in support of the defence is a valuable right. Denial of such right would amount to the denial of a fair trial. Thus, it is essential that the rules of procedure that have been designed to ensure justice are scrupulously followed, and the court must be zealous in ensuring that there is no breach of the same. (Vide Talab Haji Hussain v. Madhukar Purshottam Mondkar, Zahira Habibulla H. Sheikh & v. State of Gujarat, Zahira Habibullah Sheikh & Anr. v. State of Gujarat, Kalyani Baskar v. M.S. Sampoornam, Vijay Kumar v. State of U.P. and Sudevanand v. State)
17. From a conspectus consideration of the above decisions, while dealing with an application under Section 311 Cr.P.C. read along with Section 138 of the Evidence Act, we feel the following principles will have to be borne in mind by the Courts:
17.1. Whether the Court is right in thinking that the new evidence is needed by it? Whether the evidence sought to be led in under Section 311 is noted by the Court for a just decision of a case?
17.2. The exercise of the widest discretionary power under Section 311 Cr.P.C. should ensure that the judgment should not be rendered on inchoate, inconclusive speculative presentation of facts, as thereby the ends of justice would be defeated.
17.3. If evidence of any witness appears to the Court to be essential to the just decision of the case, it is the power of the Court to summon and examine or recall and re-examine any such person.
17.4. The exercise of power under Section 311 Cr.P.C. should be resorted to only with the object of finding out the truth or obtaining proper proof for such facts, which will lead to a just and correct decision of the case. 17.5. The exercise of the said power cannot be dubbed as filling in a lacuna in a prosecution case, unless the facts and circumstances of the case make it apparent that the exercise of power by the Court would result in causing serious prejudice to the accused, resulting in miscarriage of justice. 17.6 The wide discretionary power should be exercised judiciously and not arbitrarily.
17.7. The Court must satisfy itself that it was in every respect essential to examine such a witness or to recall him for further examination in order to arrive at a just decision of the case.
17.8. The object of Section 311 Cr.P.C. simultaneously imposes a duty on the Court to determine the truth and to render a just decision. 17.9. The Court arrives at the conclusion that additional evidence is necessary, not because it would be impossible to pronounce the judgment without it, but because there would be a failure of justice without such evidence being considered.
17.10. Exigency of the situation, fair play and good sense should be the safe guard, while exercising the discretion. The Court should bear in mind that no party in a trial can be foreclosed from correcting errors and that if proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the Court should be magnanimous in permitting such mistakes to be rectified.
17.11. The Court should be conscious of the position that after all the trial is basically for the prisoners and the Court should afford an opportunity to them in the fairest manner possible. In that parity of reasoning, it would be safe to err in favour of the accused getting an opportunity rather than protecting the prosecution against possible prejudice at the cost of the accused. The Court should bear in mind that improper or capricious exercise of such a discretionary power, may lead to undesirable results. 17.12. The additional evidence must not be received as a disguise or to change the nature of the case against any of the party. 17.13. The power must be exercised keeping in mind that the evidence that is likely to be tendered, would be germane to the issue involved and also ensure that an opportunity of rebuttal is given to the other party. 17.14. The power under Section 311 Cr.P.C. must therefore, be invoked by the Court only in order to meet the ends of justice for strong and valid reasons and the same must be exercised with care, caution and circumspection. The Court should bear in mind that fair trial entails the interest of the accused, the victim and the society and, therefore, the grant of fair and proper opportunities to the persons concerned, must be ensured being a constitutional goal, as well as a human right.?
13.The second Judgment that was cited by the learned Senior counsel is Martin Manrique Mansour Vs. State Rep. by The Inspector of Police, Thirunagar Police Station, Madurai reported in 2016-1-L.W.(Crl.) 637. This Court had also dealt with the scope of Section 311 Cr.P.C and has held as follows:
?9. It is trite law that a petition under Section 311 Cr.P.C. can be filed at any time before the Judgment is delivered. But, at the same time, the petitioner should explain how the evidence of the said witnesses is essential to the just decision of the case. It must be remembered that this Court in Crl.O.P.(MD) No.8606 of 2015 had not ordered de nova trial, but had only changed the Public Prosecutor. Of course, if the new Public Prosecutor feels that the erstwhile Public Prosecutor has not properly examined a particular witness, it is open to him to file an application under Section 311 Cr.P.C. for recalling him.
10. In this case, the petition filed by the Special Public Prosecutor under Section 311 Cr.P.C. does not even give the reasons for the wholesale recall of the prosecution witnesses. The Trial Court should not permit witch hunting of the accused by the prosecution. The accused also has a fundamental right guaranteed under Article 21 of the Constitution of India for fair trial.....?
14.A reading of Section 138 of the Indian Evidence Act, which provides for the order of examination, reveals that a witness shall be first examined in chief and then cross examined and thereafter (if the party calling him so desires) re-examined. Insofar as re-examination is concerned, the said provision specifically provides that re-examination shall be directed to explanation of matters referred to in the cross examination. The said provision also provides that re-examination can be permitted by the Court where a new matter is introduced by way of re-examination, which law in fact considers to be examination in chief and therefore the adverse party is given an opportunity to further cross examine upon the new matter which has been put in the re-examination.
15.In this case, the prosecution has sought to re-examine P.Ws.1 to 3 and P.Ws.5 to 16. Admittedly, all these witnesses were not treated as hostile witnesses. Therefore, the first portion of the direction of re-
examination will not apply to this case. In order to apply the second portion of the said provision, the prosecution must have clearly spelt out the new matter which is sought to be introduced in the re-examination. The petition filed by the prosecution is totally silent on this issue. Therefore, there is no scope to recall P.Ws.1 to 3 and P.Ws.5 to 16 in order to re-examine them.
16.Insofar as the evidence of P.W.4 is concerned, admittedly, the said witnesses had turned hostile and he was cross examined by the prosecution. A reading of the cross examination clearly reveals that the witnesses was shown the 161 statement and was contradicted from the statement made by the witnesses before the police. The hostility of P.W.4 can be decided only on the touch stone of Section 154 of the Indian Evidence Act. This has already done by the prosecution. Therefore, there is no further scope to cross examine P.W.4. The petition filed by the prosecution is also silent with regard to the reason as to why the prosecution wanted to further cross examine P.W.4.
17.The Judgments which have been referred to herein above clearly states that the exercise of the said power cannot be allowed to filling up lacuna in a prosecution case. Unless the facts and circumstances of the case, makes it apparent that non exercise of the power by the Court would result in causing serious prejudice, resulting in mis-carriage of justice, the Court cannot exercise its power mechanically. Even though, the exercise of power under Section 311 of Cr.P.C is very wide, the same has to be exercised judiciously and not arbitrarily.
18.In this case, the prosecution has attempted to virtually conduct the trial all over again by recalling all the 16 witnesses. This attempt has been made even without assigning any reason in the petition. Even, without there being any reason in the petition, the Court below has proceeded to allow the petition merely on the ground that interest of justice will have to be safeguarded. Power exercised under Section 311 of Cr.P.C must be exercised judiciously which means that the Court should have apply its mind on the materials placed before it and should have assigned independent reasons as to why the application is being allowed. In this case, the Court has not undertaken such an exercise. Therefore, necessarily, this Court has to come to an conclusion that the power exercised by the Court below is arbitrary. Any exercise of discretionary power when done arbitrarily can be interfered by this Court under Section 482 of Cr.P.C.
19.The Court below by allowing the petition has virtually permitted the prosecution to conduct the trial afresh from the beginning. The order of the Court below will have the effect of a denova trial. Obviously, the prosecution wanted to fill up some lacuna in the evidence and that is the reason why a petition was filed without assigning any reason wherein the prosecution has sought for recalling all the witnesses.
20.This Court is convinced that the order passed by the Court below is arbitrary and illegal. The Court below has not even appreciated the fact that earlier the very same attempt was made by filing a petition in the year 2015 and the same was withdrawn. Subsequently, a similar petition was filed in the year 2016 and the same has been allowed. The Court below failed to judiciously exercise the discretionary power vested in it under Section 311 of Cr.P.C. Therefore, this Court has to necessarily interfere with the same in exercise of its power under Section 482 of Cr.P.C.
21.Accordingly, this Criminal Original Petition is allowed and the order of the Court below made in Crl.M.P.No.113 of 2016, dated 17.60.2016 is hereby set aside. The Sessions case is of the year 2015. Therefore, there shall be a direction to the I Additional District and Sessions Court, Thoothukudi, to complete the proceedings within a period of three months from the date of receipt of a copy of this order. Consequently, connected miscellaneous petition is closed.
To
1.The I Additional District and Sessions Judge, Thoothukudi.
2.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
.