Kerala High Court
Vinod vs State Of Kerala on 24 October, 2019
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI
THURSDAY, THE 24TH DAY OF OCTOBER 2019 / 2ND KARTHIKA, 1941
Crl.MC.No.6906 OF 2019(C)
SC 239/2017 OF ADDITIONAL SESSIONS COURT - IV, KOLLAM
PETITIONERS/ACCUSED 1, 5, 6 & 9:
1 VINOD,
AGED 42 YEARS
S/O. GOPALAN, VAYALIKARA VEEDU, KADAVOOR CHERI,
THRIKKADAVOOR FROM THEKKADAVATHU VEEDU, NEAR
PATHINETTAM PADI, MATHILIL CHERRY, THRIKKADAVOOR
VILLAGE.
2 PRANAV
AGED 29 YEARS
S/O. GOPALAKRISHNAN, PARAPATHUVILA THEKETHIL VEEDU,
PARAPPATHUVILA JUNCTION, KADAVOOR CHERI,
THIRKKADAVAOOR VILLAGE.
3 ARUN SIVADASAN @ HARI.
AGED 34 YEARS
S/O. SIVADASAN, SREELEKSHMI, KIZHAKKADATH, KADAVOOR
CHERRY, THRIKKADAVOOR VILLAGE.
4 SHIJU @ EZHIMALA SHIJU
AGED 36 YEARS
S/O. RAJENDRAN, GOPALA SADANAM, NEAR ELUMALA TEMPLE,
JARAKKAL CHERRI, THRIKKARUVA VILLAGE.
BY ADV. SRI.SATHEESH MOHANAN
SR.ADV.SRI.SREEKUMAR
RESPONDENTS/STATE/COMPLAINANT:
1 STATE OF KERALA,
HIGH COURT OF KERALA, ERNAKULAM - 682 031.
ADDL. REGHUNADHAN PILLAI
R2 AGED 55 YEARS
S/O.GOPALA PILLAI,
KOYIPPURAM VEEDU ,
KADAVUR CHERY,
THRIKADAVUR VILLAGE ,
KOLLAM DISTRICT
(IMPLEADED AS ADDL.R2 AS PER ORDER DT.16.10.19 IN
Crl.M.C.No.6906/2019
2
CRL.M.APP.NO.2/2019)
R2 BY ADV. K.S.HARIHARAPUTHRAN
R2 BY ADV. SMT.BHANU THILAK
SMT.V.SREEJA PUBLIC PROSECUTOR
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
16.10.2019, THE COURT ON 24.10.2019 PASSED THE FOLLOWING:
Crl.M.C.No.6906/2019
3
R.NARAYANA PISHARADI, J
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Crl.M.C.No.6906 of 2019
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Dated this the 24th day of October, 2019
ORDER
The petitioners are accused 1, 5, 6 and 9 in the case S.C.No.239/2017 on the file of the Court of Session, Kollam.
2. The accused in the aforesaid case face trial for the offences punishable under Sections 143, 147, 148, 341, 324, 201 and 302 read with 149 I.P.C and Section 120B I.P.C. The facts of the case need not be narrated here for the purpose of deciding this petition.
3. While the trial of the case was going on, accused 5, 6 and 9 filed an application as Crl.M.P.No.957/2019 under Section 311 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code') for recalling and re-examining the witnesses examined by the prosecution as PW1, PW2 and PW4. The aforesaid application was dismissed by the learned Sessions Judge as per Annexure-E order. The aforesaid order is Crl.M.C.No.6906/2019 4 challenged in this petition filed under Section 482 of the Code by accused 1, 5, 6 and 9.
4. Heard learned senior counsel for the petitioners and the learned Public Prosecutor. Heard also the counsel for the additional second respondent who has got himself impleaded in this petition.
5. Though other petitions filed by the accused in the case have been disposed of by the learned Sessions Judge as per Annexure-E order, challenge in this petition under Section 482 of the Code is confined to the dismissal of the application filed for recalling the witnesses examined by the prosecution as PW1, PW2 and PW4.
6. The application for recalling and re-examining the witnesses PW1, PW2 and PW4 was made under Section 311 of the Code, on the basis that CW58, who had investigated the case, had recorded the statements of the aforesaid witnesses during the investigation and copies of such statements had been furnished to the accused under Section 208 of the Code but the accused omitted to cross-examine the aforesaid witnesses with reference to those statements. The witness CW58 is no more. Crl.M.C.No.6906/2019 5 According to the petitioners, CW59, the investigating officer who succeeded CW58, has fabricated statements of witnesses forging the signature of CW58.
7. The learned Sessions Judge dismissed the aforesaid application solely on the ground that, when the prosecution is adducing evidence, the defence has no right to insist that the prosecution shall examine a witness. There can be no quarrel with this proposition. However, learned senior counsel for the petitioners submitted that it was a mistake committed in seeking the prayer in the application and what the defence wants is only to cross-examine PW1, PW2 and PW4 with reference to their statements recorded by the witness CW58, who was the investigating officer.
8. Section 311 of the Code states that any Court may, at any stage of any inquiry, trial or other proceeding under the 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 Crl.M.C.No.6906/2019 6 the case.
9. The first part of Section 311 of the Code is permissive and it gives purely discretionary authority to the 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 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.
10. It is well settled that the power conferred under Section 311 of the Code 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 wide power under this provision 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 Crl.M.C.No.6906/2019 7 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.
11. In the instant case, if the plea of the defence that, the copies of statements of the witnesses PW1, PW2 and PW4 recorded by CW58, have been furnished to them, is true, in order to ensure fair trial and to have a just decision in the case, it is only proper to allow them to give an opportunity to cross- examine the aforesaid witnesses with reference to those statements. For this purpose, the learned Sessions Judge has to verify and ascertain first whether copies of the statements of the aforesaid witnesses, which had been recorded by CW58, had been furnished to the accused. This can be done by verifying the chargesheet and other documents produced by the prosecution in the court.
12. In the result, the petition is disposed of as follows:
The learned Sessions Judge shall verify and ascertain whether the chargesheet and other documents filed by the prosecution in the court contain statements of the witnesses PW1, PW2 and PW4, which were recorded by the investigating officer (CW58). Crl.M.C.No.6906/2019 8 For this purpose, accused 5, 6 and 9 shall produce before the learned Sessions Judge copies of such statements allegedly furnished to them under Section 207 or 208 of the Code which are in their possession, if already not produced. If any such statement is there, the learned Sessions Judge shall recall PW1, PW2 and PW4 and grant opportunity to the defence to further cross-examine the aforesaid witnesses with reference to such statements. It is made clear that further cross-examination of the aforesaid witnesses in such a situation shall not be conducted on any other matter. On the other hand, if the records of the case do not contain any such statement of the aforesaid witnesses recorded by the investigating officer (CW58), the prayer for recalling the witnesses, which now stands rejected by the learned Sessions Judge, shall stand confirmed. It is made clear that this Court has not interfered with Annexure-E common order passed by the learned Sessions Judge on any other aspect.
(sd/-) R.NARAYANA PISHARADI, JUDGE jsr Crl.M.C.No.6906/2019 9 APPENDIX PETITIONERS' EXHIBITS:
ANNEXURE A THE TRUE COPY OF THE AFFIDAVIT AND THE PETITION TO RECALL THE WITNESS FILED BY THE DEFENCE ADVOCATE SRI.L. LINTON TOGETHER WITH THE COPY OF 161 STATEMENTS.
ANNEXURE B THE TRUE COPY OF THE CR.M.P.NO. 1279/2019 IN S.C.NO.239/17 OF THE 4TH ADDL. SESSIONS' JUDGE, KOLLAM.
ANNEXURE C THE TRUE COPY OF THE STATEMENT OF OBJECTION FILED BY THE PROSECUTION IN THIS REGARD.
ANNEXURE D THE TRUE COPY OF THE PETITION SUPPORTED BY THE AFFIDAVIT AND THE INVENTORY.
ANNEXURE E A CERTIFIED COPY OF THE COMMON ORDER IN CMP NO. 934/2019, 957/2019, 979/2019, 974/2019AND 1279/2019 PASSED BY THE ADDL. SESSIONS JUDGE-IV, KOLLAM.
RESPONDENTS' EXHIBITS: NIL TRUE COPY PS TO JUDGE