Karnataka High Court
Eraiah vs Mahadeva on 13 April, 2022
Author: M. Nagaprasanna
Bench: M. Nagaprasanna
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF APRIL, 2022
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
WRIT PETITION No.5648 OF 2022 (GM-RES)
BETWEEN:
SRI ERAIAH
S/O CHIKKAIAH
AGED ABOUT 62 YEARS
R/O DOOR NO.26,
K.E.B COLONY
JYOTHINAGAR
MYSURU - 570 019.
... PETITIONER
(BY SRI PRAVEEN KUMAR G.S., ADVOCATE)
AND:
SRI MAHADEVA
S/O LATE HOMBAIAH
AGED ABOUT 66 YEARS
R/O NO.153, SIDDAPPAJI TEMPLE
OPPOSITE ROAD
ALANGIKATTE, HOOTAGALLI,
BELAVADI POST
MYSURU - 570 018.
WORKING AS DRIVER AT KPTCL
MAJOR WORKS STORE
HOOTAGALLI
MYSURU - 570 018.
... RESPONDENT
2
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA READ WITH SECTION 482 OF CODE OF
CRIMINAL PROCEDURE, 1973, PRAYING TO QUASH THE ORDER
PASSED BY THE IV ADDITIONAL CIVIL JUDGE AND JMFC, MYSURU
IN C.C.NO.2100/2015 DATED 23.02.2022 VIDE ANNEXURE-E AND
ETC.,
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioner in this writ petition calls in question order dated 23-02-2022 passed by the IV Additional Civil Judge & JMFC, Mysuru in C.C.No.2100 of 2015 rejecting the application filed by the petitioner under Section 311 of the Cr.P.C. seeking recall of PW-1 for further cross-examination.
2. Heard Sri.Praveen Kumar.G.S., learned counsel for petitioner.
3. Brief facts leading to the filing of the present petition, as borne out from the pleadings, are as follows:
3The petitioner and the respondent are parties to a transaction which resulted in the respondent registering a complaint under Section 200 of the Cr.P.C. for offence punishable under Section 138 of the Negotiable Instruments Act, 1881 and Section 420 of the Indian Penal Code. Since the issue revolves round on a narrow compass, other details about the transaction or the proceedings are not necessary to be noticed.
4. The examination-in-chief of the complainant happened by way of an affidavit on 12-12-2018. The matter was adjourned for cross-examination of the complainant from 12-12-2018 to 26.08.2019. The claim of the petitioner is that due to short of time, the advocate for the accused was not able to collect complete information with regard to the case. Lack of securing documents led to a cross-examination made by the counsel for the petitioner unfinished. Many questions that had to be put to the witness were omitted by the counsel is the primary ground that is urged. On the score that several questions were left out when the complainant was cross-examined on 26-08-2019, an 4 application was filed by the petitioner seeking recall of PW-1 for further cross-examination on 26-11-2021 close to 2 years and 3 months after such cross-examination. The application submitted reads as follows:
"APPLICATION UNDER SECTION 311 OF CR.P.C. It is respectfully submitted on behalf of the accused as follows:
On the strength of Ex.P.01 complainant case is filed alleging false under section 138 of N.I.Act.
This Hon'ble curt was kind enough to provide sufficient opportunity to cross-examination of PW-1. On 26/08/2019, PW-1 was even cross-examined by his counsel who passed away due to pandemic. Now the above matter stands posted for the arguments.
It is noticed that some of the vital aspects of the greater importance to defend the case of the prosecution could not have been brought on record while the PW-1 was cross-examined. The situation was also not favorable and whole world was facing complete disturbance due to covid- 19 as such there was not much concentration was made on area of cross-examine of PW-1.
It is respectfully submitted that, in order to protect rights of accused an effective cross-examination is required to demonstrate false claim, as such re-calling of the PW-1 for further cross-examination is very much needed.
If the PW-1 is recalled, it will not cause any hardship or injury per contra if this Hon'ble Court decline to allow this application it will cause serious legal injury and accused may not be in a better position to defend the case of the complainant effectively and completely. Absolutely 5 there is no delay tactics from the side of the accused. It is only a sincere attempt which is available to the accused to defend him properly.
Hence, the application is filed requesting this Hon'ble Court to recall the PW-1 for the further cross-examination in order to rebut this statutory presumption with all effectiveness.
If the complainant is not cross-examined with all materials, the valuable rights of defending guaranteed by the constitution would be frustrated.
Wherefore, accused prays that, this Hon'ble court be pleased to recall the PW-1 to Cross examine, in order to meet the ends of justice, in the above case, in the interest of justice."
The narration in the application is that after the cross-
examination on 26-08-2-019 the counsel who cross-examined the complainant died due to COVID-19 and recall is sought that since there was complete disturbance due to COVID-19 not much concentration was made on the area of cross-examination of PW-1. Detailed objections were filed by the complainant to the said application. The Court considering the application and the objections has passed the following order:
"7. Heard arguments on both side. The learned counsel for the accused has relied upon the following decisions, Crl.P.No.144/2006, Crl.A.No.1307/2014 and Crl.A.No.688/2009.6
8. On going through the record, the complainant has filed this complaint for the offence punishable U/S 138 of NI Act against the accused and evidence of the complainant is closed and his cross examination was completed on 26.08.2019 and on very same date 313 statement was recorded. Later accused has lead his evidence on 22.10.2019 and counsel for Complainant canvassed his arguments on 08.11.2021 and when case was posted for arguments on behalf of accused, this application is filed by the accused. Accused has contended that some of the vital aspects of the greater importance to defend the case of the prosecution could not have been brought on record at the time of cross examination of PW1. On perusal of cross examination of PW1 and defense evidence of the accused it discloses that the accused has cross examined complainant by covering many of the contentions raised by him as defense in his evidence on affidavit, moreover the accused has not narrated in which aspect he wants to cross examine the PW1, simply mentioning that some of the vital aspects of the greater importance to defend the case of the prosecution is not a justifiable ground to allow this application.
9. It is observed that accused has stated that, the situation was not favourable due to covid-19 to concentrate on area of cross examination of PW1 it is important to note that cross examination of PW1 was completed on 26.08.2019 and in that situation there is no any pandemic situation as per version of accused.7
Furthermore, accused has lead his defense evidence, but he did not turned up for his cross examination and later he remained absent for several hearing dates and when counsel for Complainant addressed his arguments at that time the present application is came to be filed that too without explaining valid reasons to recall the pw1 for cross examination.
10. Under the Provisions of Section 311 of Code of Criminal Procedure, at any stage of proceedings the witness can be recalled. At this context, it is relevant to mentioned the provision of Section 311 of Code of Criminal Procedure, which reads as under:-
311. 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 person already examined and the court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case.
11. Section 311 of Cr.P.C. empowers the court to summon any material witness if this evidence appears to be essential for the just decision of the case, the section is intended to arm the court with the most extensive power possible for the purpose of getting at the truth.8
12. Since the grounds urged by the accused in his application is not satisfactory to allow the same at belated stage and the evidences appears before the court are sufficient to adjudicate the matter. More over as per section 143(3) of N.I.Act the trial is to be concluded within six months from the date of complaint and present complaint is of the year 2015 and it is more 6 years old case. Therefore the application filed by the accused has no merits. Accordingly, this Court proceed to pass the following:
ORDER Application filed U/Section 311 of Cr.P.C. filed by the accused is hereby rejected."
The Court observes that cross-examination of PW-1 was completed on 26-08-2019 and the application under Section 311 Cr.P.C. is preferred at the time when the counsel for the complainant has commenced his arguments and the counsel for the petitioner had remained absent on several occasions.
Noticing the fact that the application was filed at a belated stage, without even divulging as to what are the rival aspects with regard to the cross-examination have been omitted, rejects the application.
95. The submission of the learned counsel appearing for the petitioner is that the earlier counsel died due to COVID-19 and he had not effectively cross-examined the witness. It is his further submission that he is now on record in place of the earlier counsel and such cross-examination is imperative for advancing the case of the petitioner. The submission boils down to the counsel who had cross-examined but not effectively cross-
examined the complainant and therefore, a further opportunity should be given.
6. Section 311 of the Cr.P.C. reads as follows:
311. 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 person already examined; and the Court shall summon and examine or recall and re-
examine any such person if his evidence appears to it to be essential to the just decision of the case."
7. The provision of law clearly indicates that an application of the kind can be made at any stage of the trial. The trial admittedly is pending and is next posted on 16.04.2022.
10Interpreting Section 311 of the Cr.P.C. the Apex Court in the case of V.N.PATIL v. K.NIRANJAN KUMAR1 has held as follows:
"13. The scope of Section 311 CrPC which is relevant for the present purpose is reproduced hereunder:
"311. 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 person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case."
14. The object underlying Section 311 CrPC 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 significant expression that occurs is "at any stage of any inquiry or trial or other proceeding under this Code". It is, however, to be borne in mind that the discretionary power conferred under Section 311 CrPC has to be exercised judiciously, as it is always said "wider the power, greater is the necessity of caution while exercise of judicious discretion".
15. The principles related to the exercise of the power under Section 311 CrPC have been well settled by this Court in Vijay Kumar v. State of U.P. [Vijay Kumar v. State of U.P., (2011) 8 SCC 136 : (2011) 3 SCC (Cri) 371 : (2012) 1 SCC (L&S) 240] : (SCC p. 141, para 17) 1 (2021) 3 SCC 661 11 "17. Though Section 311 confers vast discretion upon the court and is expressed in the widest possible terms, the discretionary power under the said section can be invoked only for the ends of justice. Discretionary power should be exercised consistently with the provisions of the Code and the principles of criminal law. The discretionary power conferred under Section 311 has to be exercised judicially for reasons stated by the court and not arbitrarily or capriciously. Before directing the learned Special Judge to examine Smt Ruchi Saxena as a court witness, the High Court did not examine the reasons assigned by the learned Special Judge as to why it was not necessary to examine her as a court witness and has given the impugned direction without assigning any reason."
16. This principle has been further reiterated in Mannan Shaikh v. State of W.B. [Mannan Shaikh v. State of W.B., (2014) 13 SCC 59 : (2014) 5 SCC (Cri) 547] and thereafter in Ratanlal v. PrahladJat [Ratanlal v. PrahladJat, (2017) 9 SCC 340 : (2017) 3 SCC (Cri) 729] and Swapan Kumar Chatterjee v. CBI [Swapan Kumar Chatterjee v. CBI, (2019) 14 SCC 328 : (2019) 4 SCC (Cri) 839] . The relevant paragraphs of Swapan Kumar Chatterjee [Swapan Kumar Chatterjee v. CBI, (2019) 14 SCC 328 : (2019) 4 SCC (Cri) 839] are as under: (Swapan Kumar Chatterjee case [Swapan Kumar Chatterjee v. CBI, (2019) 14 SCC 328 : (2019) 4 SCC (Cri) 839] , SCC p. 331, paras 10-11) "10. The first part of this section which is permissive gives purely discretionary authority to the criminal court and enables it at any stage of inquiry, trial or other proceedings under the Code to act in one of the three ways, namely, (i) to summon any person as a witness; or (ii) to examine any person in attendance, though not summoned as a witness; or
(iii) to recall and re-examine any person already examined. The second part, which is mandatory, imposes an obligation on the court (i) to summon and 12 examine, or (ii) to recall and re-examine any such person if his evidence appears to be essential to the just decision of the case.
11. It is well settled that the power conferred under Section 311 should be invoked by the court only to meet the ends of justice. The power is to be exercised only for strong and valid reasons and it should be exercised with great caution and circumspection. The court has vide power under this section to even recall witnesses for re-examination or further examination, necessary in the interest of justice, but the same has to be exercised after taking into consideration the facts and circumstances of each case. The power under this provision shall not be exercised if the court is of the view that the application has been filed as an abuse of the process of law."
17. The aim of every court is to discover the truth. Section 311 CrPC is one of many such provisions which strengthen the arms of a court in its effort to unearth the truth by procedure sanctioned by law. At the same time, the discretionary power vested under Section 311 CrPC has to be exercised judiciously for strong and valid reasons and with caution and circumspection to meet the ends of justice."
(Emphasis supplied) In the light of the judgment rendered by the Apex Court and the facts obtaining in the case at hand, the submission of the learned counsel that the cross-examination of P.W.1 could not be complete in the light of the counsel consequently dying of COVID undoubtedly merits consideration. The petitioner has 13 produced record to demonstrate that the counsel whom he had engaged did die of COVID. Therefore, I deem it appropriate to grant one opportunity to the petitioner to further cross-examine P.W.1, albeit, with imposition of cost.
8. For the aforesaid reasons, the following:
ORDER
(i) The writ petition is allowed.
(ii) The order dated 23.02.2022, passed in C.C.No.2100/ 2015, stands quashed.
(iii) The petitioner stands permitted to cross-examine PW.1 on 16.04.2022, subject to payment of cost of Rs.3,000/- (Rupees Three Thousand Only) payable to PW.1. The cross-examination shall be concluded on the same day.
(iv) The payment of cost shall be condition precedent to the cross-examination on 16.04.2022.14
(v) It is made clear that no further opportunity shall be granted to the petitioner to cross-examine PW.1.
Sd/-
JUDGE bkp CT:MJ