Kerala High Court
Sajeendran vs Thalakulathoor Grama Panchayath on 1 October, 2003
Equivalent citations: 2004CRILJ555, 2004(1)KLT69
Author: K.A. Abdul Gafoor
Bench: K.A. Abdul Gafoor
ORDER K.A. Abdul Gafoor, J.
1. The petitioner/accused in C.C. No.882/95 on the file of the Judicial Magistrate of the First Class - IV, Kozhikode has come up with this petition under Section 482 of the Code of Criminal Procedure impugning an order passed, allowing the application filed by the complainant/respondent under Section 311 of the Code, by the Magistrate who tried the said case.
2. Admittedly by both sides in the case charged in the year 1995, evidence has been collected and closed as late as in 2001. The case has been, further admittedly by both sides, posted for judgment. It was thereafter that the respondent/complainant filed a petition under Section 311 of the Code to recall PW.1 and to produce two additional documents. This has been allowed as per the impugned order. This is without jurisdiction, it is contended.
3. The trial of the case terminated and on termination of the trial, the case was posted for judgment. It was after posting the case for judgment, Section 311 of the Code had been invoked by the respondent and it has been allowed by the court below at that stage. This is illegal, it is contended. As per Section 311 Cr.P.C., the court below should have invoked that provision only "at any stage of the trial of the case" and not later than the termination of the trial. Once the case is posted for judgment, there is termination of the trial, it is contended, assailing the impugned order.
4. At the same time, it is contended by the respondent/complainant that the court is clothed with power to summon any person at any stage of the proceedings. It need not be confined to the trial or enquiry stage. Therefore, the impugned order is perfectly justified. In support of this contention, the decisions reported in Rajendra Prasad v. Narcotic Cell (1999 (2) KLT 779 (SC)), Mohanlal Shamji Soni v. Union of India (AIR 1991 SC 1346) and Jamatraj v. State of Maharashtra (AIR 1958 SC 178) have been relied on.
5. In this regard, it is worthwhile to quote Section 311 Cr.P.C.
"The power to summon material witness, or examine person present :-
"Any court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case".
Therefore, this power can be exercised only "at any stage of any inquiry, trial or other proceedings". Inquiry, trial or other proceedings are mentioned in the Section in the alternative. Admittedly, this was a trial case. When the Section mentions alternatively "other proceedings" as distinct from inquiry and trial, "other proceedings" shall be "proceedings" other than trial. Admittedly, there was a trial and witnesses have been examined and the case has been posted for judgment.
6. Section 353(1) of the Code of Criminal Procedure speaks about judgment.
"353(1). The judgment in every trial in any Criminal Court of original jurisdiction shall be pronounced in open court by the presiding officer immediately after the termination of the trial or at some subsequent time of which notice shall be given to the parties or their pleader,-
(a) by delivering the whole of the judgment; or
(b) by reading out the whole of the judgment; or
(c) by reading out the operative part of the judgment and explaining the substance of the judgment in a language which is understood by the accused or his pleader."
Therefore, the judgment comes on termination of the trial. It can immediately be after the termination of the trial or subsequent to the date on which the case is posted for judgment. Therefore, when the case is posted for judgment, the trial stands terminated.
7. Admittedly, the case has been posted for judgment by the Magistrate. It indicates that, going by Section 353(1) Cr.P.C., the trial has been terminated.
8. The power under Section 311 of the Code can be exercised, as already mentioned, only, "at any stage of any inquiry, trial or other proceeding". The other proceeding is alternate to trial or inquiry. In this case, the trial has been terminated when the case was posted for judgment. So, the stage of the trial is already over. Consequently, the power under Section 311 of the Code ought not to have been invoked by the Magistrate.
9. The decision in Rajendra Prasad's case cited by the respondent cannot, in any way, help the respondent to enable him to resummon the witness after the case has been posted for judgment on termination of the trial. The facts of the said case disclose that "arguments were heard in piece-meal on different days. On 7.6.1996, the Public Prosecutor moved an application seeking permission to examine PW.21 (Dalip Singh, S.I.) and two other persons". Therefore, the case was not posted for judgment and there was no termination of the trial in that case.
10. Equally, the decision in Mohanlal's case also does not advance the case of the respondents. The facts of the said case reveal that:
"After examination of the prosecution as well as the defence witnesses and recording of the statements of the appellant under Section 342 of the old Code of Criminal Procedure (hereinafter referred to as the 'Code') arguments were advanced on behalf of the appellant/accused. The prosecution at this stage before commencing its arguments filed two applications in both the cases under Section 540 of the old Code (corresponding to Section 311 of the new Code) requesting the trial court to recall Mr. Mirchandani (the Seizing Officer) for further examination....."
Thus, there also, there was no termination of the trial.
11. Same is the situation with respect to Jamatraj also. As is revealed from para 3 of the report, after close of prosecution evidence, the accused Govani was questioned under Section 342 of the Cr.P.C., 1898. He did not lead any defence evidence. But he filed a statement on 15.7.1965. On the following day, the prosecution applied for examination of a witness invoking Section 540 of the old Code. When these facts are revealed from the reports, it is clear that, in that case also the trial was not terminated. So this decision also cannot improve the case of the respondents.
Therefore, I am satisfied that the order impugned is without jurisdiction. Annexure II is accordingly quashed. The Magistrate shall proceed with the matter from the stage when Annexure II was passed.