Kerala High Court
Raphel vs State Of Kerala on 2 August, 2012
Author: C.T. Ravikumar
Bench: C.T.Ravikumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR
THURSDAY, THE 2ND DAY OF AUGUST 2012/11TH SRAVANA 1934
Crl.Rev.Pet.No.213 of 2012 ()
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CMP.NO.165/2011 IN SC.310/2010 of ASSISTANT SESSIONS COURT,KOCHI
REVISION PETITIONER(S):
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1. RAPHEL
S/O. XAVIER, AGED 51, MACHUNGAL HOUSE
MARUVAKKADU, KANNAMALY P.O., ERNAKULAM DISTRICT.
2. ANUSH
S/O. RAPHEL, AGED 27 YEARS, MACHUNGAL HOUSE
MARUVAKKADU, KANNAMALY P.O., ERNAKULAM DISTRICT.
3. ABHILASH
S/O. RAPHEL, AGED 25, MACHUNGAL HOUSE
MARUVAKKADU, KANNAMALY P.O., ERNAKULAM DISTRICT.
BY ADV. SRI.P. BABU KUMAR
RESPONDENT/RESPONDENT:
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STATE OF KERALA
REPRESENTED BY THE CIRCLE INSPECTOR OF POLICE,
MATTANCHERY POLICE STATION
THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA
ERNAKULAM-682031.
BY PUBLIC PROSECUTOR SRI.BIJI MEENATTOOR
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON
02-08-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
C.T. RAVIKUMAR, J.
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CRL.R.P. No.213 OF 2012
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Dated this the 2nd day of August, 2012
ORDER
This revision petition is directed against the order in C.M.P.No.165 of 2011 in S.C.No.310 of 2010 of the Court of Assistant Sessions Judge, Kochi. The petitioners stand indicted for offences punishable under sections 341, 324, 307 and 34 IPC. After the closing of evidence, the matter was posted for hearing. Thereupon, the petitioners filed an application under section 311 Cr.P.C with a prayer to recall and re-examine PWs 1 to 4. The sole reason assigned in the said application was that at the time of cross- examination of PWs 1 to 4, certain questions were omitted to be asked. It is stated that it is necessary for the just and proper decision of the case to recall and re-examine PWs 1 to 4 to enable the petitioners' counsel to ask such questions omitted to be asked at the time of cross-examination. The question whether an application for recalling and re-examining the witnesses can be entertained and an Crl.R.P.213/12 2 order can be passed thereon for the reason assigned therein was carefully examined by the trial court. That application was vehemently opposed by the Additional Public Prosecutor on the ground that the attempt on the part of the revision petitioners is only to fill up the lacuna in evidence. Additional Public Prosecutor further contended that it is impermissible under section 311 Cr.P.C to recall or re-examine the witnesses who were already examined that too, after the closure of the evidence solely for the purpose of asking questions which were omitted to be asked at the time of cross-examination. Evidently, after the closure of evidence that the case was posted for hearing. It is stated in the application that when the counsel appearing for the petitioners started preparing for arguing the matter, it came to light that he had omitted to ask some material questions to PWs 1 to 4. The trial court found that PWs 1 to 4 were cross examined at length and after hearing the revision petitioners and perusing the application, arrived at the conclusion that the attempt on the part of the petitioners is only to fill up the lacuna in evidence. That apart, it is noted thereunder that there was absolutely nothing in the petition to come to a reasonable conclusion that the counsel had omitted to ask certain Crl.R.P.213/12 3 most important questions during the corss-examination of Pws 1 to 4 and that they are absolutely essential to the just decision of the case. It was in the said circumstances that the trial court declined to recall and re-examine PWs 1 to 4 and consequently, dismissed the application.
2. I have heard the learned counsel for the petitioners and also the learned Public Prosecutor.
As already noticed hereinbefore, admittedly, what is stated in the application for recalling and re-examining the witnesses is that the counsel appearing for the accused persons while studying the case for preparing himself for arguing the matter found that he had omitted to ask certain questions to PWs 1 to 4. After considering the application, the trial court found that there is nothing in the application to come to a reasonable conclusion that the counsel had omitted to ask questions on material aspects during the cross- examination of PWs 1 to 4 and that it is essential to have a just decision of the case. A perusal of section 311 Cr.P.C would reveal Crl.R.P.213/12 4 that such an opportunity cannot be granted by the court for the mere asking and the aid of the section has to be invoked judicially as any improper exercise of the power by the court may lead to undesirable results. The said power is to be exercised only on strong and valid reasons and should be exercised with caution and circumspection. Evidently, in this case, the petitioners have failed to convince the court that it is essential to the just decision of the case and, in fact, the court after hearing the rival contentions and perusing the application found that the attempt is for filling up the lacuna. In the decision in Mohanlal Shamji Soni v. Union of India reported in 1991 Crl. L.J 1521, the Hon'ble Apex court held that the power under this section should not be used for filling up the lacuna by the prosecutor or by the defence. In the circumstances, I find no error or illegality or impropriety in the impugned order inviting exercise of revisional jurisdiction. This criminal revision petition fails and accordingly, it is dismissed.
C.T. RAVIKUMAR
(Judge)
spc/
Crl.R.P.213/12 5
C.T. RAVIKUMAR, J.
JUDGMENT
Crl.R.P.213/12 6
September, 2010