Andhra HC (Pre-Telangana)
Unknown vs The State Of Andhra Pradesh Through ... on 4 September, 2014
Author: B.Siva Sankara Rao
Bench: B.Siva Sankara Rao
HONOURABLE Dr. JUSTICE B.SIVA SANKARA RAO
Crl.R.C No.575 of 2013
04-09-2014
Dambala Srinivasu, S/o.Satyanrayana,Aged about 29 years, R/o.Pillavari
Veedhi,Ramachandrapuram, East Godavari District....PETITIONER/A-1
The State of Andhra Pradesh through SHO,Ramachandrapuram Police Station, rep.
by Public Prosecutor,High Court of AP, Hyderabad & another...RESPONDENTS
Counsel for Appellant: Sri Ravi Kondaveeti
Counsel for Respondent No.1 : Public Prosecutor
Counsel for Respondent No.2 : M.Uma Devi
<GIST:
>HEAD NOTE:
? Cases referred
Nil
THE HONOURABLE Dr.JUSTICE B.SIVA SANKARA RAO
Criminal Revision Case No.575 of 2013
ORDER:
This Criminal Revision case is filed under Sections 397 and 401 Cr.P.C by petitioner/A-1 against the order passed on 26.09.2012 in SR No.3830 whereunder the order passed in CC No.303 of 2010 dated 18.07.2012 on the file of the Additional Judicial Magistrate of First Class, Ramachandrapuram, East Godavari District registered for the offences punishable under Sections 417 and 420 IPC.
2. Heard the Learned Counsel for the Petitioner, the Learned Additional Public Prosecutor for the Respondent-State and perused the material placed on record. It is the prosecution through State from the report of the de facto complainant as a police warrant case.
3. The contentions in the grounds of revision filed by petitioner (A-1) among three accused is that the learned Magistrate committed a grave error in receiving the so called letters addressed by A-1 to de facto complainant allegedly dated Nil with covering letter of the de facto complainant that was when handed over by the learned Public Prosecutor while chief examination of PW.1 is in progress and despite the accused resisted the same to be received, the learned Magistrate received the same covered by the impugned order saying that it cannot reject the said documents even the IO did not seize these letters during investigation for the reason if there is correspondence between PW1 and A-1, it is vital piece of evidence to support the prosecution, thereby the letter submitted by PW-1 is permitted.
4. Now the points that arise for consideration in the revision are:
1. Whether the impugned order of the learned Magistrate in receiving the letter is unsustainable and requires interference while sitting in revision?
2. To what result?
5. Point No.1:
No doubt, the prosecution got a right as per the procedure contemplated by law, if required within power of the Investigating Agency under Section 173 clause (8) Cr.P.C to take up further investigation with reference to two letters or any other material and submit supplementary charge sheet. For any material not covered by investigation even can be filed in a police case proceeded as police warrant case, by invoking Sections 311 Cr.P.C read with 242 (2) Cr.P.C if at all the prosecution want to rely. Beyond that, there is Section 165 of Evidence Act for the Court to call for to produce any record or to summon to give evidence on any aspect and put any question at any stage to any witness. None of the provisions permit giving in open Court of such letters by Public Prosecutor in open Court asking to receive by the Court, that too even without any such application.
6. Section 311 Cr.P.C speaks that 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. From the above reading of Section 311, the second part speaks the right of a party to request the Court to examine or re-examine or examine any witness, if necessary, by recall, whereas first part speaks the power of the Court to exercise at any stage in any manner.
8. Here there is an application contemplated by Section 311 Cr.P.C before the Court by the learned Public Prosecutor to receive these two letters also by invoking Section 242 Cr.P.C particularly Sub- section (ii) of it. Apart from the above, the Court not only under Section 311 Cr.P.C but also under Section 165 of Evidence Act got wide powers.
9. Section 165 Evidence Act speaks that the Judge may in order to discover or to obtain proper proof of relevant facts, ask any question he pleases, in any form, at any time, of any witness, or of the parties, about any fact relevant or irrelevant; and may order the production of any document or thing; and neither the parties nor their agents shall be entitled to make any objection to any such question or order, nor, without the leave of the Court, to cross examine any witness upon any answer given in reply to any such question:
Provided that the Judgment must be based upon facts declared by this Act to be relevant, and duly proved:
Provided also that this section shall not authorize any Judge to compel any witness to answer any question, or to produce any document which such witness would be entitled to refuse to answer or produce under Sections 121 to 131, both inclusive4, if the questions were asked or the documents were called for by the adverse party; nor shall the Judge ask any question which it would be improper for any other person to ask under section 148 or 149; nor shall he dispense with primary evidence of any document, except in the cases hereinbefore excepted.
10. Even from the above it is a separate exercise of such power either under 1st part or 2nd part of 311 Cr.P.C or under Section 165 of Evidence Act by the trial Court from its taking notice of any fact brought from the material on record. Practically but for under Section 311 Cr.P.C read with 242 Cr.P.C (supra), the learned public prosecutor has no right to hand over a letter said to have addressed by A-1 to PW.1 in that regard without taking such recourse under Section 311 Cr.P.C for recall of PW1 if necessary for further chief examination if not PW.1 chief examination is in progress or to exhibit the same on any application to receive under Section 242 (2) Cr.P.C to exhibit in the further examination in chief in the form of re-examination.
11. The learned Magistrate, thereby has no right in receiving such letters handed over by Public Prosecutor in open Court without even supply to accused being entitled to copies of the letters, that two when accused opposed such recourse and thereby the order of the learned Magistrate is liable to be set aside, by giving liberty to public prosecutor to file application to receive the documents by serving copies to the accused with opportunity of hearing to pass appropriate orders to receive or otherwise as the case may be. Accordingly, the point No.1 is answered.
12. Point No.2:
In the result, the revision is disposed of, by giving liberty to the public prosecutor concerned to file an application under Section 242 read with 311 Cr.P.C to receive by supplying copy of the petition as well as two documents to the accused for the Court to hear and pass appropriate orders to receive or otherwise as the case may be and in the event of receiving to exhibit through PW.1 or any other witness either by recall or if not his evidence completed in further chief examination/ re-examination as the case may be, with right of cross examination of the prosecution witness to the accused on these aspects also.
Miscellaneous petitions, if any pending in this Revision shall stand closed.
__________________________ Dr. B.SIVA SANKARA RAO J, 4th September, 2014