Madras High Court
Jeeva Aged About 40 Years vs The State Rep.By on 23 November, 2010
Author: T.Mathivanan
Bench: T.Mathivanan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 23.11.2010 CORAM : THE HON'BLE MR.JUSTICE T.MATHIVANAN Criminal Original Petition No.24910 of 2010 and M.P.No.1 of 2010 Jeeva aged about 40 years S/o Krishnan Tirur Village Sevvapettai Tiruvallore District .. Petitioner vs. The State Rep.By The Inspector of Police Sevappet Police Station Tiruvallore District (Crime No.47/2003) .. Respondent Criminal Original Petition filed under Section 482 Cr.P.C., against the order dated 12.10.2010 and made in C.M.P.No.244/2010 in S.C.No.140/2007 on the file of the Additional District Judge, Fast Track Court No.III, Tiruvallore and praying to set aside the same to direct the learned Trial Judge to reopen the case and to accord permission to summon the witness cited in the application filed in C.M.P.No.244/2010 in S.C.No.140/2007 on the file of the Additional District Judge, Fast Track Court No.III, Tiruvallore. For petitioner : Mr.V.Manohar For respondent : Mr.R.Muniyapparaj Government Advocate(Crl.side) ... O R D E R
Invoking the inherent jurisdiction of this Court under Section 482 Cr.P.C.,the petitioner has preferred this petition to set aside the order dated 12.10.2010 and made in Crl.M.P.No.244/2010 in S.C.No.140/2007 on the file of the learned Additional District Judge, (Fast Track Court No.III), Tiruvallore and to direct the learned trial Judge to reopen the trial of the case and to accord permission to summon the witnesses cited in the petitioner in Crl.M.P.No. 244/2010 so as to enable the petitioner to examine the said witnesses on his side.
2. The petitioner along with 27 others has been facing charges under Section 120(B), 148, 302, 341, 449 and 506(ii) I.P.C., in connection with the case in S.C.No.140/2007 on the file of the learned Additional District Judge, Tiruvallore.
3. During the course of the trial the prosecution has purposely withheld certain important materials and factual issues to suppress the truth before the trial Court. The entire episode in the background of the case in S.C.No.140/2007 has been fabricated based on the caste issue and the officer who is actually involved in the initiation of the case and in the investigation had some vested interest in the issue involved. Hence, adequate grounds are available to withhold the material facts and the related evidences. The said suppression came to the petitioner's knowledge only in the later stage. On this background, the petitioner had filed a petition in Crl.M.P.No.244/2010 in S.C.No.140/2007 on the file of the learned Additional District Judge, (Fast Track Court No.III) Tiruvallore after invoking the proviso to Section 311 of Cr.P.C., to reopen the trial of the said case and to summon the former Superintendent of Police of Tiruvallore District Mr.S.P.Ayush Mani Tiwari to examine him as a witness on behalf of the defence.
4. Heard both sides.
5. (i) The learned counsel appearing for the petitioner has submitted that Mr.S.P.Ayush Mani Tiwari, the then Superintendent of Police of Tiruvallore District had appointed Mr.Paul Raj, the then Inspector of Police, Periyapalayam to investigate the case in Crime No.47/2003 on the file of the respondent police. The above said Superintendent of Police in his proceedings in C.No.35/Camp/SP-TVLR/2003 dated 01.02.2003 stated that two vanniars were murdered in Thiruvur Village and it is obvious that the abovesaid Superintendent of Police had signed his proceedings relating to the nomination of the Investigating Officer at 10.00 a.m., on 01.02.2003, and that the petitioner was able to secure the proceeding only recently.
(ii) The learned counsel has also submitted that insofar as the case in Crime No.47/2003 in S.C.No.140/2007 is concerned the occurrence is said to have been taken place at 10.15 a.m., on 01.02.2003. Hence, from the abovesaid details it is palpably clear that the prosecuting agency has wantonly burked the real time of occurrence. The learned counsel has also added that Mr.S.P.Ayush Mani Tiwari, the then Superintendent of Police, Tiruvallore District must be summoned and brought before the trial Court to be examined as a witness only for the purpose of explaining the circumstances under which he had nominated the Investigating Officer Mr.Paul Raj at 10.00 a.m., on 01.02.2003. The learned counsel for the petitioner has also adverted to that virtually Mr.S.P.Ayush Mani Tiwari, the then Superintendent of Police should have received first information with regard to the occurrence prior to 10.00 a.m., on 01.02.2003 and it also appears only after receipt of the first information about the occurrence, he was able to nominate the Investigating Officer-Mr.Paul Raj to investigate the case in Crime No.47/2003 at 10.00 a.m. If the nomination of the Investigating Officer by the then S.P.Ayush Mani Tiwari is true, the occurrence as certified by the prosecuting agency could not have been taken place at 10.15 a.m., on the abovesaid date. Only to clarify this position and other material facts the petitioner happened to file a petition under Section 311 Cr.P.C, in Crl.M.P.No.244/2010 before the trial Court. But the trial Court without giving due consideration or without application of its mind has simply rejected even without giving notice to the prosecuting agency to invite their objections. Being aggrieved with the impugned order of the learned Additional District and Sessions Judge, Fast Track Court No.III, dated 12.10.2010, the petitioner was constrained to file this petition to set aside the abovesaid order and also to direct the trial Judge to reopen the trial of the case in S.C.No.140/2007 and to summon Mr.S.P.Ayush Mani Tiwari, then Superintendent of Police, Tiruvallure District and examine him as a witness on the defence side.
6. On the other hand, the learned Public Prosecutor has vehemently objected to allow this petition. He has also submitted that the case in Crime No.47/2003 was registered by the respondent police in the year 2003. After following all the formalities the case was taken on file by the Principal Sessions Judge, Tiruvallore in S.C.No.140/2007 and subsequently, forwarded to the learned Additional District and Sessions Judge (Fast Track Court No.III) Tiruvallore for trial in the year 2007. After commencement of trial, two similarly placed petitions were filed already to recall and to examine the witnesses and the petition in Crl.M.P.No.244/2010 is the third of it's kind. The learned Public Prosecutor has also adverted to that the case was originally posted to 01.11.2010 for pronouncement of judgment and since the petitioner has preferred this petition before this Court, the judgment was not able to be pronounced and thereafter the case stands posted to 06.12.2010.
7. This Court has carefully considered the submissions made on either side.
8. On a cursory perusal of the order dated 12.10.2010 passed by the learned Additional District and Sessions Judge(Fast Track Court No.III), Tiruvallore in Crl.M.P.No. 244/2010 it appears that after the completion of the trial the case stood posted for judgment. Only under these circumstances, the petitioner came forward with this petition to summon the erstwhile Superintendent of Police, Tiruvallore for the purpose of examining him as a defence witness. It also appears from the order of the trial Court that even without issuing notice to the prosecuting agency so as to invite their objections, the petition seems to have been rejected in limine. The learned trial Judge has observed in the abovesaid order that the petition appeared to have been filed to prolong the case and that a non-bailable warrant was also pending against the accused. Hence, the abovesaid petition was rejected on the ground on maintainability.
9. The power of the trial Court to summon material witnessess or to examine the persons present has been very well defined in Section 311 of Cr.P.C. Section 311 reads as follows:
"S.311. 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."
From the language coined in section 311 of Cr.P.C., it is obvious that the scope of section is very wider and it need not be taken into a narrow one. In order to enable the Court to find out the real truth which is hidden or invisible and to take a just decision the salutary provisions of section 311 are enacted whereunder any Court by exercising its discretionary authority at any stage of enquiry, trial or other proceeding can summon any person as witness or examine any person in attendance though not summoned as a witness or recall or re-examine any person already examined who are expected to be able to throw light upon the matter in dispute. It must be borne-in-mind that opportunity of rebuttal shall be given to other party.
10. On coming to the instant case on hand from the materials available on record it is obvious to note here that as nearly as 27 accused are involved in this case in S.C.No.140/2007. It is also apparent that two persons were said to have been murdered in the alleged occurrence dated 01.02.2003. It also appears that the case in Crime No.47/2003 in S.C.No.140/2007 is a sensational one and revolving around communal problem. Therefore, this case has to be dealt with due care and caution.
11. Page one of the typed set tagged along with this petition is the proceedings of the Superintendent of Police, Tiruvallore District. These proceedings seems to have been issued by Thiru S.P.Ayush Mani Tiwari, the then Superintendent of Police, Tiruvallore District on 01.02.2003. From the face of the proceedings it appears that a communal clash was taken place between Adi-dravidars and Vanniars of Thiruvur village on 01.02.2003 and in the said clash two vanniars were murdered. It also appears that in order to take up the investigation, one Mr.Paul Raj, Inspector of Police, Periyapalayam Circle was nominated as the Investigating Officer. Besides this exfacie it is also appeared that the Inspector of Police -Mr.Paul Raj was also informed telephonically by the Special Branch Office at 10.00 a.m., on 01.02.2003. Only on this background, the learned counsel for the petitioner has submitted that as per the case of the prosecution, the occurrence was said to have been taken place at 10.15 a.m., on 01.02.2003 and when such being the case how Mr.Paul Raj, attached to Periyapalayam Police Station could have been informed at 10.00 a.m., on 01.02.2003.
12. The learned counsel has also added that only to explain this position and since there is confliction and contradiction with regard to the time of occurrence the petitioner was accelerated to file a petition under Section 311 Cr.P.C., to summon the then Superintendent of Police, S.P.Ayush Mani Tiwari to be examined as a witness on the defence side.
13. In order to substantiate his arguments, the learned counsel for the petitioner has also placed reliance upon the following decisions:
(i)GODREJ PACIFIC TECH.LTD. V.COMPUTER JOINT INDIS LTD.
(2008 CRL.L.J. 4690)
(ii)PALACHARLA RAMA RAO V. STATE OF A.P., (2002 CRL.L.J.4189)
(iii)SEETHATHIPAL ANTONY AND 8 OTHERS V. INSPECTOR OF POLICE, KUMBAKONAM (2002 (5) CTC 133)
(iv)R.KRISHNAMURTHY V. STATE BY INSPECTOR OF POLICE, MADRAS (1996(I) CTC 588)
(v)T.STANES & COMPANY LIMITED, COIMBATORE, REP. BY MR.WILLIAM HOBERT, ASSISTANT GENERAL MANAGER (OPERATIONS), 3/23-24, RACE COURSE ROAD, COIMBATORE VS. M.G.MOHAMED IQBAL, B.Sc., (AGRI), AGRICULTURAL OFFICER (QUALITY CONTROL), O/O ASSISTANT DIRECTOR OF AGRICULTURE, METTUPALAYAM AND ANOTHER. (2007 (4) CTC 412)
(vii)IDAR AND OTHERS V. AABIDA AND ANOTHER (AIR 2007 SC 3029)
(viii)RAMALINGAM V. STATE BY INSPECTOR OF POLICE, NADUCAUVERY POLICE STATION (2006 (1)CTC 705)
14. In IDDAR AND OTHERS V. AABIDA AND ANOTHER (AIR 2007 SC 3029) a Division Bench of Hon'ble Supreme Court has observed that "Section 311 is a supplementary provision enabling and in certain circumstances imposing on the Court the duty of examining a material witness who would not be otherwise brought before it. It is couched in the widest possible terms and calls for no limitation, either with regard to the stage at which the powers of the Court should be exercised, or with regard to the manner in which it should be exercised. It is not only the prerogative but also the plain duty of a Court to examine such of those witnesses as it considers absolutely necessary for doing justice between the State and the subject."
"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.
"It is a cardinal rule in the law of evidence that the best available evidence should be brought before the Court.
The Court is not empowered under the provisions of the Code to compel either the prosecution or the defence to examine any particular witness or witnesses on their side. This must be left to the parties."
It is also observed that the Court will often have to depend on intercepted allegations made by the parties, or on inconclusive inference from facts elicited in the evidence. In such cases, the Court has to act under the second part of the section. Sometimes the examination of witnesses as directed by the Court may result in what is thought to be "filing of loopholes'. That is purely a subsidiary factor and cannot be taken into account. Whether the new evidence is essential or not, must of course depend on the facts of each case, and has to be determined by the Presiding Judge.
15. As rightly observed by Dr.ARIJIT PASAYAT,J. in GODREJ PACIFIC TECH.LTD. V. COMPUTER JOINT INDIA LTD.(2008 CRL.L.J. 4690) the proviso to Section 311 of Cr.P.C. is manifestly in two parts. Whereas the word used in the first part is "may", the second part uses "shall". In consequence, the first part gives purely discretionary authority to a criminal court and enables it at any stage of enquiry, trial or proceeding under the Code (a) to summon anyone as a witness, or (b)to examine any person present in the court, or (c)to recall and re-examine any person who evidence has already been recorded. On the other hand, the second part is mandatory and compels the court to take any of the aforementioned steps if the new evidence appears to it essential to the just decision of the case. This is a supplementary provision enabling, and in certain circumstances imposing on the court the duty of examining a material witness who would not be otherwise brought before it.
16. One more dimension of Section 311 Cr.P.C., has been expo-sed in SEETHATHIPAL ANTONY AND 8 OTHERS V. INSPECTOR OF POLICE, KUMBAKONAM (2002 (5) CTC 133). In this case the learned single Judge of this Court has held that non-examination of the witness under Section 161(3) Cr.P.C., cannot be a handicap to the exercise of power under Section 311 of Cr.P.C.
17. In the case on hand, from the context of the petition in Crl.M.P.No.244/2010 on the file of the trial Court, the evidence of Mr.S.P.Ayush Mani Tiwari, the then Superintendent of Police, Tiruvallore is very much essential to take just decision in this case and the circumstances narrated in this petition imposing the duty on the trial court to examine the then Superintendent of Police, Tiruvallore as a material evidence on the part of the defence side so as to clarify the position as aforementioned. If the trial Court fails to summon and examine him as a material witness he would not be otherwise brought before this Court at any stage at the later point of time.
18. Keeping in view of the above circumstances, the reason as adduced by the learned trial Judge in his order dated 12.10.2010 that the petition was filed to prolong the case and that the pendency of non-bailable warrant are all extraneous. Further this Court has convinced with the reasons projected by the learned counsel for the petitioner and since the former Superintendent of Police, Tiruvallore appears to be a material witness to clarify the position as stated above he shall be summoned and examined as witness on the part of the defence.
19. Having regard to the circumstances narrated above, this Court is of the considered view that the order of the learned trial Judge dated 12.10.2010 and made in Crl.M.P.No.244/2010 in S.C.No.140/2007 is liable to be set aside because the above said petition seems to have been rejected without even inviting the objections from the prosecuting agency.
20. Accordingly, the order dated 12.10.2010 and made in Crl.M.P.No.244/2010 is set aside and the petition in Crl.M.P.No.244/2010 is allowed. The learned Additional District and Sessions Judge, Fast Track Court No.III, Tiruvallore is directed to summon the witnesses requested in Crl.M.P.No.244/2010 and examine him as a witness on the side of the defence and the opposite side shall also be given an opportunity to confront by way of cross-examination. Accordingly, this petition is allowed. Consequently, connected M.P.No.1/2010 is disposed of.
sal To The State Rep.By The Inspector of Police Sevappet Police Station Tiruvallore District