Telangana High Court
Mohammed Vilayath Ali vs The State Of Telangana on 2 May, 2025
Author: N.Tukaramji
Bench: N.Tukaramji
THE HONOURABLE SRI JUSTICE N.TUKARAMJI
CRIMINAL PETITION NOs.16136, 16170 and 16171 of 2024
COMMON ORDER
Criminal Petition No.16136 of 2024 has been filed assailing the order dated 02.12.2024 in Crl.M.P.No.118 of 2024 whereby the prayer for issuance of summons to the present Chief/Central Public Information Officer, Indian Security Press, Nashik Road, Maharashtra- 422101 to give evidence on behalf of the prosecution and to produce documents in respect of information provided under RTI Act vide its letter No.1363/RTI-274 dated 29.04.2011 along with its annexures i.e. letter dated 21.11.2009 and invoice copy before the Court, has been dismissed.
2. Criminal Petition No.16170 of 2024 has been filed aggrieved by the dismissal order dated 02.12.2024 in Crl.M.P.No.117 of 2024 for issuance of summons to the present Deputy Inspector General, Registration and Stamps, Hyderabad and to direct him to give evidence as prosecution witness and to produce the entire records in respect of the report issued Memo No.RTI/1399/2024 dated 21.06.2014 along with its enclosures.
3. Criminal Petition No.16171 of 2024 has been filed challenging the dismissal order dated 02.12.2024 in Crl.M.P.No.53 of 2024 the 2 NTR,J Crlp_16136,16170&16171_2024 petition filed under Section 311 of CrPC to recall PWs.1, 3, 4 and 5 for the purpose of further chief examination and marking the left out documents filed in the case.
4. As the above miscellaneous petitions were filed in C.C.No.223 of 2011 on the file of the Judicial Magistrate of First Class, Tandur, Vikarabad District and as the reliefs prayed for are intertwined, these petitions were heard together and are being determined in this common order.
5. I have heard Ms.K.Annapurna Reddy, learned counsel for the petitioners and Mr.Jithender Rao Veeramalla, learned Additional Public Prosecutor appearing for the respondent No.1.
6. In spite of due service the respondent No.2/accused chose to remain silent.
7. The relevant facts are that the petitioner/complainant has filed police report alleging that the respondent No.2/accused created a forged agreement of sale by manipulating non judicial stamp paper and his signature to knock away the property admeasuring Ac.0.28 guntas in Sy.No.10/E and Ac.0.29 guntas in Sy.No.10/EE situated at Saipur village of Tandur mandal, Ranga Reddy District thereby to cause wrongful loss to the petitioner. Basing on the report Crime No.226 of 2008 was registered and after due investigation charge sheet was laid 3 NTR,J Crlp_16136,16170&16171_2024 and Calendar Case vide CC No.223 of 2011 has been registered for the offences under Sections 420, 468 and 471 of IPC.
8. Learned counsel for the petitioner/de facto complainant would submit that the respondent No.2/accused had created an agreement of sale/Ex.P-5 dated 11.09.2006 by manipulating a non judicial stamp paper bearing No.H 375588 and forged his signature on it. Further to make out falsity of the document the petitioner/de facto complainant pursued the RTI proceedings at Nashik Security Printing Press/Ex.P-2 and letter from Deputy Inspector General of Registrations and Stamps, Hyderabad/Ex.P-3. The responses elicited that by the Serial number the stamp paper was printed on 11.03.2008 and came into market on 21.05.2008. This fact clinches the impossibility of the execution of agreement of sale on that stamp paper in 2006. However during trial the prosecution failed to properly elicit these facts and got marked the documents along with its annexures. Thus recall of examined witnesses and summoning the officials concerned for properly brining the fact on to record and for marking of the documents. Further pleaded that rejection of the petition filed by the trial Court would cause serious prejudice to the prosecution case and it would affect the valuable rights of the de facto complainant. Further pleads that the evidence, recall and examination of witnesses would clarify the facts for effective adjudication. That apart, the respondent No.2/accused 4 NTR,J Crlp_16136,16170&16171_2024 would have opportunity of cross examination. As such allowing the petition will not cause any prejudice and in deed sub serve the justice. Hence prayed for interference.
9. Learned counsel for the petitioner during deliberation fairly admits that further examination of PWs.1, 3, 4 and 5 and marking of relevant documents would be sufficient to prove and establish the related fact. Thus prayed for considering the prayer in Crl.M.P.No.53 of 2024 (Crl.P.No.16171 of 2024).
10. Learned Additional Public Prosecutor would submit that the calendar case is of the year 2011 and the witnesses were examined in 2022 and the de facto complainant came up with present petition in 2024. Further the prosecution got marked letter addressed to Nashik Security Printing Press/Ex.P-2 and letter from the Deputy Inspector General of Registration and Stamps, Hyderabad to the Commissioner, Inspector General, Registrations and Stamps, Hyderabad/Ex.P-3 and sworn statement of Abdul Qadeer/LW-5 as Ex.P-4 and the relevant witnesses were examined and the evidence of stamp vendor/PW-5 and stamp register/Sub-Registrar, Charminar are sufficient to establish the pleaded aspect by the petitioner/de facto complainant. He fairly admits that the reply said to have been issued by the Nashik Security Printing Press not marked and the other witnesses could have been specifically questioned to elicit the disputed fact. However the prayer for 5 NTR,J Crlp_16136,16170&16171_2024 summoning present Chief/Central Public Information Officer, Indian Security Press, Nashik and the present Deputy Inspector General, Registration and Stamps, Hyderabad may not be required. Thus prayed for passing the orders on merits.
11. I have perused the materials on record.
12. The specific pleading of the petitioner/de facto complainant is that the non judicial stamp paper of 2008 has been used to show that the agreement of sale was executed on 11.09.2006 and this fact sets the seal on the fact of fabrication of the document. Further examining the PWs.1, 3, 4 and 5 on this specific aspect and getting marked the left out documents on file is necessary to prove this foundational aspect. In the impugned order the trial Court declined the prayer on the ground of belated filing of the petition and the effort of the petitioner to bring the annexures of Ex.P-2 which was refused by the Court and the same was affirmed by this Court vide Criminal Petition No.72 of 2022.
13. It is pertinent to note that Section 311 of CrPC empowers the Court to summon, recall and re-examine the witnesses already examined to ensure just decision by enabling it to access and relevant evidence.
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14. The Hon'ble Supreme Court in Rajaram Prasad Yadav v. State of Bihar and another - 2013(14) SCC 461 considering the settled positions enumerated principles to be borne in mind by the Courts while dealing with an application under Section 311 of CrPC. For better appreciation, the relevant para No.23 is extracted as hereunder:
"23. From a conspectus consideration of the above decisions, while dealing with an application under Section 311 Cr.P.C. read along with Section 138 of the Evidence Act, we feel the following principles will have to be borne in mind by the Courts:
a) Whether the Court is right in thinking that the new evidence is needed by it? Whether the evidence sought to be led in under Section 311 is noted by the Court for a just decision of a case?
b) The exercise of the widest discretionary power under Section 311 Cr.P.C. should ensure that the judgment should not be rendered on inchoate, inconclusive speculative presentation of facts, as thereby the ends of justice would be defeated.
c) If evidence of any witness appears to the Court to be essential to the just decision of the case, it is the power of the Court to summon and examine or recall and re-examine any such person.
d) The exercise of power under Section 311 Cr.P.C. should be resorted to only with the object of finding out the truth or obtaining proper proof for such facts, which will lead to a just and correct decision of the case.
e) The exercise of the said power cannot be dubbed as filling in a lacuna in a prosecution case, unless the facts and circumstances of the case make it apparent that the exercise of power by the Court would result in causing serious prejudice to the accused, resulting in miscarriage of justice.
f) The wide discretionary power should be exercised judiciously and not arbitrarily.
g) The Court must satisfy itself that it was in every respect essential to examine such a witness or to recall him for further examination in order to arrive at a just decision of the case.
h) The object of Section 311 Cr.P.C. simultaneously imposes a duty on the Court to determine the truth and to render a just decision.
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i) The Court arrives at the conclusion that additional evidence is necessary, not because it would be impossible to pronounce the judgment without it, but because there would be a failure of justice without such evidence being considered.
j) Exigency of the situation, fair play and good sense should be the safe guard, while exercising the discretion. The Court should bear in mind that no party in a trial can be foreclosed from correcting errors and that if proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the Court should be magnanimous in permitting such mistakes to be rectified.
k) The Court should be conscious of the position that after all the trial is basically for the prisoners and the Court should afford an opportunity to them in the fairest manner possible. In that parity of reasoning, it would be safe to err in favour of the accused getting an opportunity rather than protecting the prosecution against possible prejudice at the cost of the accused. The Court should bear in mind that improper or capricious exercise of such a discretionary power, may lead to undesirable results.
l) The additional evidence must not be received as a disguise or to change the nature of the case against any of the party.
m) The power must be exercised keeping in mind that the evidence that is likely to be tendered, would be germane to the issue involved and also ensure that an opportunity of rebuttal is given to the other party.
n) The power under Section 311 Cr.P.C. must therefore, be invoked by the Court only in order to meet the ends of justice for strong and valid reasons and the same must be exercised with care, caution and circumspection. The Court should bear in mind that fair trial entails the interest of the accused, the victim and the society and, therefore, the grant of fair and proper opportunities to the persons concerned, must be ensured being a constitutional goal, as well as a human right.
15. Thus by the guidelines it shall be held that the power under Section 311 of CrPC is wider and has to be exercised to meet the endowed responsibility on the Court to determine the truth and to reach just decision. The Court shall be cautious in making a balance between reaching just and correct decision and miscarriage of justice. Further in determining the petition, the Court must consider whether non allowance of the examination/evidence prayed for would be a failure of 8 NTR,J Crlp_16136,16170&16171_2024 justice. Thus the power under Section 311 of CrPC has to be invoked to meet the ends of justice balancing the interests of accused and victim.
16. In the instant case, the petitioner is seeking recall of already examined witnesses for further examination to specifically make out the fact of printing and sale of non judicial stamp in the year 2008. Though the witnesses were already examined and considering the essentiality of the fact to render just decision, allowing the petitioner for recall and examining PWs.1, 3, 4 and 5 is found proper to meet the ends of justice.
17. For the aforesaid, these criminal petitions are answered as follows:
i) Crl.P.Nos.16136 and 16170 of 2024 are dismissed as not pressed.
ii) The impugned order dated 02.12.2024 in Crl.M.P.No.53 of 2024 in C.C.No.223 of 2011 on the file of the Judicial Magistrate of First Class, Tandur, Vikarabad District is set aside and the witnesses i.e. PWs.1, 3, 4 and 5 are recalled for further chief examination and to mark left out material documents. Accordingly, Crl.P.No.16171 of 2024 stands allowed.
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iii) The trial Court shall fix the schedule for examining the recalled witnesses PWs.1,3, 4 and 5 within a time frame of four weeks from the date of receipt of a copy of this order. The witnesses shall be chief examined by the prosecution with the assistance of the petitioner on the aspect of the origin and sale of the disputed non judicial stamp and the defence shall cross examine the witnesses on the same day, saving the exceptional circumstances beyond control.
iv) Allowing of the petition shall not be construed as setting aside the orders of the trial Court in Crl.M.P.No.338 of 2021 and the order in Crl.P.No.72 of 2022 in regard to the documents considered therein. Accordingly ordered. Pending miscellaneous applications, if any, shall stand closed.
_______________ N.TUKARAMJI, J Date:02.05.2025 ccm