Kerala High Court
P.M. Muhammed Ashraf vs State Of Kerala on 9 November, 2018
Author: V Raja Vijayaraghavan
Bench: V Raja Vijayaraghavan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
FRIDAY, THE 09TH DAY OF NOVEMBER 2018 / 18TH KARTHIKA, 1940
OP(Crl.).No. 536 of 2018
AGAINST THE ORDER DATED 2.11.2018 IN CRL.M.P. NO.503 OF 2018 IN
SC NO.267/2017 ON THE FILES OF ADDL.DC & SESSIONS COURT (FOR TRIAL
OF CASES RELATING TO ATROCITIES & SEXUAL VIOLENCE AGAINST WOMEN &
CHILDREN)
PETITIONER/RESPONDENT/ACCUSED:
P.M. MUHAMMED ASHRAF, AGED 51 YEARS,
S/O. MUHAMMED, PALLIPATTIL HOUSE, POOMATTOM KAVALA
BHAGOM, NELLIKUZHY KARA, ERAMALLUR VILLAGE,
ERNAKULAM DISTRICT.
BY ADVS.
SRI.SALIM V.S.
SRI.H.NUJUMUDEEN
RESPONDENT/PETITIONER/COMPLAINANT:
STATE OF KERALA,
THROUGH SUB INSPECTOR OF POLICE,
MUVATTUPUZHA POLICE STATION,
REP. BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
ERNAKULAM, PIN - 682 031.
SRI. C K PRASAD- PP
THIS OP (CRIMINAL) HAVING COME UP FOR ADMISSION ON 09.11.2018, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP(CRL) NO.536/18 2
JUDGMENT
Under challenge in this petition filed under Article 227 of the Constitution of India is an order passed by the learned Sessions Judge, Ernakulam invoking his powers under Section 311 of the Cr.P.C.
2. The petitioner herein is the sole accused in S.C No.267/2017 on the file of the Additional Sessions Judge, Ernakulam. He has been charged for having committed offence punishable under Sections 7 and 8 of the Protection of Children from Sexual Offences Act 2012.
3. According to the prosecution the petitioner herein was a teacher of the Hayathul Islam Madrassa. The victim, a minor girl aged 9 years, was a student of the said school. During the period from 1.7.2016 till 8.12.2016, the petitioner is alleged to have subjected the minor child to sexual abuse.
4. While the final hearing of the matter was going on, an application was filed by the learned Public Prosecutor under Section 311 of the Cr.P.C. The prayer was to issue summons to the Secretary, Hayathul Islam Madrasa to produce the admission OP(CRL) NO.536/18 3 register and other details of the victim child to evidence the fact that she was a student in the said school during the relevant period. The learned Sessions Judge allowed the said petition holding that production of such evidence was required to enable the court to find out the truth and render a just decision in the case.
5. The learned counsel appearing for the petitioner contended the learned Sessions Judge was not justified in allowing the said application. According to the learned counsel, Section 311 of the Cr.P.C would not enable the Sessions Judge to conduct a roving enquiry and to fill up the lacuna in the prosecution case.
6. Heard the learned Public Prosecutor who placed reliance on a decision of the Apex Court in Mohanlal Shamji Soni v. Union of India [AIR 1991 SC 1346] and it was contended that the court below was justified in allowing the said petition as Section 311 of the Code enabled the court to exercise its discretionary authority at any stage of enquiry or trial if it was of the opinion that such evidence was required for arriving at a just decision.
7. I have considered the submissions advanced and have perused the materials made available, including the impugned order and the objection filed by the learned counsel. OP(CRL) NO.536/18 4
8. The object underlying Section 311 of the Code 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 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. The section is a general section which applies to all proceedings, enquiries and trials under the Code and empowers Magistrate to issue summons to any witness at any stage of such proceedings, trial or enquiry. In Section 311 the significant expression that occurs is 'at any stage of inquiry or trial or other proceeding under this Code'. It is, however, to be borne in mind that whereas the section confers a very wide power on the court on summoning witnesses, the discretion conferred is to be exercised judiciously, as the wider the power the greater is the necessity for application of judicial mind. [See Iddar & Ors. v. Aabida & Anr. (AIR 2007 SC 3029)].
OP(CRL) NO.536/18 5
9. In the case on hand, it appears that the specific charge against the accused was that the child was sexually abused by the accused during the period 1.7.2016 to 8.12.2016. The specific case of the accused was that the minor child was not a student of the said Madrasa during the said period, though he admitted that he was a teacher there. This had prompted the Public Prosecutor to file an application to summon the Secretary of the Madarasa to produce the admission register or the attendance register showing the details of the students during the said period.
10. As has been held by the Apex Court, the scope and object of the provision is to enable the court to determine the truth and to render a just decision after discovering all relevant facts and obtaining proper proof of such facts. Power must be exercised judiciously and not capriciously or arbitrarily, as any improper or capricious exercise of such power may lead to undesirable results. Such a power can be exercised, provided that the evidence that is likely to be tendered by a witness, is germane to the issue involved. An opportunity of rebuttal, however, must be given to the other party. The court is well empowered to summon a witness though not mentioned in the list of witnesses whose evidence is essential for OP(CRL) NO.536/18 6 just decision of the case, even after the closure of the prosecution evidence and the statement of the accused under Section 313 of the Cr.P.C has been recorded.
11. I am unable to accept the contention of the petitioner that the attempt was to fill up a lacuna in the prosecution case. The direction to produce the admission register or the attendance details of the victim from the school cannot be branded as an attempt of the prosecution to fill up the lacuna.
12. Having considered the entire facts and after going through the order passed by the learned Sessions Judge, I am of the view that the order does not suffer from any jurisdictional error or from any perversity warranting interference under Article 227 of the Constitution of India.
This petition will stand dismissed.
SD/-
RAJA VIJAYARAGHAVAN V., JUDGE krj //TRUE COPY// P.A. TO JUDGE OP(CRL) NO.536/18 7 APPENDIX PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF CHARGE DATED 11.08.2017 FRAMED BY THE ADDITIONAL DISTRICT AND SESSIONS JUDGE, ERNAKULM (FOR THE TRIAL OF CASES RELATING TO ATROCITIES AND SEXUAL VIOLENCE AGAINST WOMEN AND CHILDREN EXHIBIT P2 TRUE COPY OF THE ARGUMENT NOTE DATED 26.10.2018 FILED BY THE PETITIONER BEFORE THE ADDITIONAL DISTRICT AND SESSIONS JUDGE'S COURT ERNAKULAM (FOR THE TRIAL OF CASES RELATING TO ATROCITIES & SEXUAL VIOLENCE AGAINST WOMEN AND CHILDREN EXHIBIT P3 TRUE COPY OF THE CRL.M.P NO. 503/2018 FILED BEFORE THE ADDITIONAL DISTRICT AND SESSIONS JUDGE, ERNAKULAM FOR THE TRIAL OF CASES RELATING TO ATROCITIES & SEXUAL VIOLENCE AGAINST WOMEN AND CHILDREN EXHIBIT P4 TRUE COPY OF THE OBJECTION IN CRL.MP NO.
503/2018 FILED BY THE COUNSEL FOR THE PETITIONER EXHIBIT P5 THE ORDER DATED 02.11.2018 PASSED BY THE ADDITIONAL DISTRICT & SESSIONS JUDGE ERNAKULAM FOR THE TRIAL OF CASES RELATING TO ATROCITIES & SEXUAL VIOLENCE AGAINST WOMEN AND CHILDREN IN CRL.M P NO. 503/2018