Madras High Court
Selvi J. Jayalalitha vs Deputy Superintendent Of Police, Cbcid on 28 April, 2000
Equivalent citations: 2000CRILJ3695
Author: P.D. Dinakaran
Bench: P.D. Dinakaran
JUDGMENT P.D. Dinakaran, J.
1. The petitioner in the above criminal original petitions is the first accused (Al) in C.C. No. 15 of 1997 before the learned XIIth Additional City Civil Judge and Special Judge, Chennai, and is facing trial for an alleged offence punishable under the Prevention of Corruption Act, 1988 (hereinafter referred to as the "P.C. Act").
2. Admittedly, the respondent filed a report under Section 173(8), Cr. P.C. on 24-10-1997; charges were framed against the accused on 14-5-1998; P.W. 1 was examined on 28-12-1998; thereafter 80 witnesses were examined on behalf of the prosecution and the evidence of prosecution was closed on 2-3-2000.
3. Except the petitioner herein, all the other accused were examined on 8-3-2000 and the petitioner (Al) was examined on 23-2-2000, under Section 313, Cr. P.C, and thereafter, the case was adjourned on 29-3-2000 for the examination of defence witnesses.
4. Admittedly, all the witnesses of the prosecution were cross-examined by the learned counsel for the petitioner as well as the other accused.
5. The relevant extract from 'A' Diary in C.C. No. 15 of 1997 reads as follows :
Proceedings of the 'A' Diary Order dated 15-3-2000 A2, A4 to A l1 present. Al represented by Counsel Under Section 205, Cr. P.C. A2, A4 to All were questioned Under Section 313, Cr. P.C. Adjourned. For questioning Al Under Section 313, Cr. P.C. 23-3-2000 2.30 p.m. Al should be present on that day.
xxxxx Sd/- V. Radhakrishnan XIIth Additional Special Judge Order dated 23-3-2000 A1, A2, A4, A7 and A10 present. Absence of A5, A6, A8, A9 and All condoned on petition Under Section 317, Cr. P.C. Al examined Under Section 313, Cr. P.C. adjourned. For examination of DWs. 29-3-2000.
xxxxx Sd/- V. Radhakrishnan XIIth Additional Special Judge Order dated 29-3-2000 A4 to A9 present. A1 represented by Counsel Under Section 205, Cr. P.C. Absence of A2, A10 and Al 1 condoned on petition Under Section 317, Cr. P.C. D.W. 1 examined. Ex. D. 25, 26, marked on application by Al two weeks time 11-4-2000 for filing list of D.Ws. adjourned. For examination of DWs. 11-4-2000.
xxxxx Sd/- V. Radhakrishnan XIIth Additional Special Judge Order dated 4-4-2000 In Crl. M.P. No. 508/2000 C.C. 15/97 Notice 11-4-2000.
xxxxx Sd/- V. Radhakrishnan XIIth Additional Special Judge Dated 11-4-2000 Crl. M.P. No. 508/2000 - Objection filed - Heard arguments - Orders 12-4-2000.
A2, A4 to A7 and All present. Al represented by Counsel Under Section 205, Cr. P.C Absence of A8, A9 and A10 condonedon petition Under Section 317, Cr. P.C Cri. M.P. No. 508/2000, pending. Adjourned to 12-4-2000.
xxxxx Sd/- V. Radhakrishnan XIIth Additional Special Judge Order dated 12-4-2000 A4, A6 and A7 present. Al represented by Counsel Under Section 205, Cr. P.C. Absence of A2, A5, AS to All condoned on petition Under Section 317, Cr. P.C Crl. M.P. No. 508/2000 dismissed. DWs not produced. As per the orders in Crl. M.P. No. 541/2000 by consent Exs. D27 to 31 marked. Evidence for defence closed. Arguments 19-4-2000.
Crl. M.P. No. 508/2000 -
C.C. No. 15/97 Orders pronounced.
In the result the
petition is
dismissed. (V.S.C.)
6. From the above extract of 'A' diary, it is clear that when the matter was adjourned for examination of defence witnesses to 29-3-2000, the petitioner did not give in writing, at once, list of the persons (if any) whom she proposed to examine as her witnesses and of the documents (if any) on which she proposed to rely, as contemplated under Section 22(a) of the P.C. Act.
7. On the other hand, the petitioner had chosen to file Crl. M.P. No. 467 of 2000 under Section 22(a) of the P.C. Act for extension of time to submit the list of defence witnesses and documents, at least for a further period of two weeks from 29-3-2000 and the learned Special Judge allowed time till 11-4-2000 for filing the list of defence witnesses, as prayed for in Crl. M.P. No. 467 of 2000.
8. In the meanwhile, the petitioner preferred Crl. M.P. No. 508 of 2000 under Section 311 of Cr. P.C., seeking permission of the Court to recall the following prosecution witnesses, viz., P.Ws. 1, 4, 5, 6, 8, 9, 10, 12, 23, 32, 72 and 84, but the same was objected by the respondent.
9. On 11-4-2000, the petitioner was permitted to represent by her counsel on an application under Section 205(1), Cr. P.C. Arguments were heard in Crl. M.P. No. 508 of 2000 and adjourned for orders to 12-4-2000.
10. On 12-4-2000, when the petitioner was represented by her counsel under Section 205(1), Cr. P.C, Crl. M.P. No. 508 of 2000 was dismissed.
11. As the petitioner did not file the list of the defence witnesses whom she proposed to examine and the documents on which she proposed to rely, the evidence for defence was closed on 12-4-2000.
12. Hence, invoking Section 482, Cr. P.C, the petitioner filed the above Crl. O.P. No. 6759 of 2000, to recall the prosecution witnesses and Crl. O.P. No. 6760 of 2000 to quash the proceedings relating to the closure of examination of the defence witnesses and to direct the trial Court to reopen the case.
13.1 Mr. N. Jothi, learned counsel for the petitioner, contends that the petitioner's statutory right to furnish a list of witnesses and documents commences only after the closure of evidence of prosecution under Section 242 of Cr. P.C. 13.2 It is contended that even though the time to furnish the list of defence witnesses and the documents was extended till 11-4-2000, by order dated 29-3-2000 in Crl. M.P. No. 467 of 2000, the same is deemed' to be extended on account of the intervening proceedings in Crl. M.P. No. 508 of 2000, filed under Section 311, Cr. P.C, to recall the prosecution witnesses, and hence, the time allowed for furnishing the list of defence witnesses and the documents ought to have been extended by the learned Special Judge on 11 -4-2000 or at least the learned Special Judge ought to have given an opportunity to the petitioner to examine herself as a defence witness, as she is fully competent for the same, as per Section 315, Cr. P.C. Placing reliance on the decision in Dwarka Dass v. State of H.P. 1980 Cri LJ 1018, it is contended that the refusal to permit the petitioner to examine herself as a defence witness, by closing the evidence for defence on 12-4-2000 and adjourning the matter to 19-4-2000 for arguments, would not only spurn down the right conferred under Section 315, Cr. P.C, but would also violate the principles of natural justice as well as the personal liberty conferred under Article 21 of the Constitution of India.
13.3 Mr. N. Jothi, learned counsel for the petitioner, again, relying on the decision in Jamatraj v. State of Maharashtra , contends that a wide discretion is conferred on the Court under Section 311, Cr. P.C., to recall the witnesses at any stage and there is no limitation on the powers of the Court arising from the stage to which the trial may have reached, where the Court is, bona fide, of opinion that such steps have been taken for the just decision of the case.
13.4 Referring to Gurdev Singh v. State of Punjab reported in 1982 Cri LJ 2211, Mr. N. Jothi, learned counsel for the petitioner, contends that the powers of the Court conferred under Section 311, Cr. P.C. to recall and examine the witnesses for the just decision of the case is a paramount consideration and the same can be exercised at any stage of the proceedings.
13.5 Mr. N. Jothi, learned counsel for the petitioner, contends that the petitioner is entitled to produce the relevant materials and to elucidate the relevant answers from the witnesses that were left by oversight or by human error and such laches or mistakes committed by inadvertence, during the conduct of a case should not be understood as a lacuna to be filled up. In this regard, he relies upon the decision in Rajendra Prasad v. Narcotic Cell , distinguishing the ratio laid in Mohanlal Shamji Soni v. Union of India , that the filling up of lacuna is not permissible capriciously or arbitrarily.
13.6 Mr. N. Jothi, learned counsel for the petitioner, relying on the decision in Arivazhagan v. State Rep. by Inspector of Police , contends that it is open for the petitioner to approach the trial Court under Section 311, Cr. P.C. at any stage either to recall the prosecution witnesses, or to examine such additional witnesses, the examination of whom he considers for the just decision of the case.
13.7 Relying on the decision in Pepsi Foods Ltd. v. Special Judicial Magistrate , Mr. N. Jothi contends that refusal of legal rights of the petitioner without proper appreciation is illegal and amounts to abuse of process of the Court, which could be interfered under Section 482, Cr. P.C., as otherwise, the petitioner would suffer from manifest injustice.
13.8 Mr. N. Jothi, learned counsel for the petitioner, also filed a Memorandum on behalf of the petitioner, setting out the reasons for recalling the above-mentioned prosecution witnesses that are required for the just decision of the case.
13.9 All the more, it is contended that refusing to recall the prosecution witnesses without just and sufficient reason, by the learned Special Judge and closing the evidence of defence witnesses on 12-4-2000 are arbitrary and capricious.
13.10 Mr. N. Jothi, learned counsel for the petitioner, also prayed, in the event of rejecting the contentions of the petitioner in the above Cri. O.Ps., to stay the proceedings in C.C. No. 15 of 1997 before the learned Xllth Additional City Civil Judge and Special Judge, Chennai, to enable him to approach the Apex Court for appropriate relief.
14.1 Mr. N. Natarajan, learned senior counsel appearing for the respondent, does not dispute :
that the powers of the Special Judge conferred under Section 311 of Cr. P.C. to recall the prosecution witnesses at any stage, if the evidence of such witnesses appear to be essential to the just decision of the case and there is no limitation to the powers of the Court in view of the wide discretion conferred under Section 311, Cr. P.C., as held in Jamatraj v. State of Maharashtra 1968 Cri LJ 231;
that the right of the accused to invoke such powers under Section 311, Cr. P.C. at any stage for the just decision of the case, is a paramount consideration, as held in Gurdev Singh v. State of Punjab 1982 Cri LJ 2211;
that the accused has got a right to produce the relevant materials and to elucidate the relevant answers from the witnesses that were left by oversight or by human error and such laches or mistakes committed by inadvertence, during the conduct of a case cannot be understood as a lacuna to be filled up, as held in Rajendra Prasad v. Narcotic Cell ;
that the accused has got every right to seek to recall the witnesses, invoking Section 311, Cr. P.C. as held in Arivazhagan v. State Rep. by Inspector of Police , and that the powers of this Court under Section 482, Cr. P.C. to prevent the abuse of the process of the Court or otherwise to secure the ends of justice as held in Pepsi Foods Ltd. v. Special Judicial Magistrate following the principles laid down in State of Haryana v. Bhajan Lal .
14.2. But, Mr. N. Natarajan, learned senior counsel appearing for the respondent, invited the attention of this Court as to the very scheme of the Criminal Procedure Code and contends that even though separate procedures are prescribed for summons cases and warrant cases and the trial one being faced by the petitioner is admittedly a warrant case, the position of the petitioner, as an accused being charged for the offences punishable under the Prevention of Corruption Act, is more cumbered than an accused in other warrant cases, due to legislative curbs, as observed in Arivazhagan v. State Rep. by Inspector of Police .
14.3. It is contended that in rendering criminal justice, the trial Court is ultimately burdened with an obligation to find out the truth by appreciating the evidence of the witnesses and documents that are made available before it during the trial and that the general provisions contained in the Criminal Procedure Code as well as the special provisions contained in the P.C. Act are, undoubtedly, strictly adhered to by the Court in rendering criminal justice. Any violation to such procedure, shall amount to abuse of process of the Court and the same would be construed as a violation to the very object of the legislature viz. to curb the illegal and corrupt practices of the public officers by enacting the P.C. Act, in the instant case.
14.4. Once the petitioner fails to submit a list of defence witnesses and documents as required under Section 22 of the P.C. Act within the time allowed by the Court, she loses her right conferred under Section 243, Cr. P.C. read with Section 22 of the P.C. Act, as otherwise, the speedy trial sought to be ensured under the P.C. Act would get delayed. Therefore, unless the petitioner submits the list of defence witnesses and documents as contemplated under Section 22 of the P.C. Act within the time allowed by the Court or satisfies with sufficient reasons and relevant materials for recalling the prosecution witnesses to examine them and establishes that their evidences are essential to the just decision of the case, she cannot have any grievance against the closure of evidence of the defence nor to recall the prosecution witnesses.
14.5. Mr. N. Natarajan, learned senior counsel, contends that the order dated 12-4-2000 refusing to recall the prosecution witnesses is based on sufficient reasons and the same cannot be overlooked nor can be complained that the same is arbitrary and capricious.
14.6. Mr. N. Natarajan, learned senior counsel, does not dispute, the competency of the petitioner to give evidence on oath in disproof of the charges made against her as per Section 315 Cr. P.C, provided, she makes a request in writing as contemplated under Section 315, Cr. P.C. But, it is contended that, the petitioner, having failed to give her name as a defence witness under Section 22(a) of the P.C. Act and failed to request in writing to examine herself as defence witness as contemplated under Section 315, Cr. P.C. she is not entitled to make out any grievance on that ground. It is also brought to the notice of the Court that the petitioner herself did not appear on 12-4-2000, but was represented by her counsel under Section 205(1), Cr. P.C. However, there is no serious objection by the respondents to permit the petitioner to make any request in writing to examine herself as a defence witness under Section 315, Cr. P.C. 14.7. Mr. N. Natarajan, learned senior counsel stoutly opposes the contention of the learned counsel for the petitioner that the right to examine the defence witnesses is a continuity of case, in view of the intervening proceedings in Crl. M.P. No. 508 of 2000 initiated under Section 311, Cr. P.C. for recalling the witnesses and such procedure is unknown in trying the offences under the P.C. Act.
15. I have given a careful consideration to the submissions of both sides.
16. The satisfaction of the Court that recall of the witness is essential to the just decision of the case is a paramount consideration in exercising the powers conferred under Section 311, Cr. P.C. While Section 311 confers a discretion on the Judge to act in aid of justice, it also implicitly requires the party who seeks to invoke Section 311, Cr. P.C. to place sufficient materials before the Court for its subjective satisfaction that such recall of the witness is essential to the just decision of the case. Without furnishing sufficient material, benefits conferred under Section 311, Cr. P.C. is of no avail. Therefore, the evidence to be obtained by recalling the witness should appear to the Court essential to the just decision of a case and it should be borne in mind that Section 311, Cr. P.C. should be invoked only with the object of discovering relevant facts or obtaining proper proof of such facts for the just decision of the case and it must be used judiciously, but not capriciously or arbitrarily, because, any improper, capricious or arbitrary exercise of power under Section 311, Cr. P.C. may lead to undesirable results, as held in Mohanlal Shamji Soni case . It is, therefore, incumbent on the Court that due care should be taken while exercising the power under Section 311, Cr. P.C. and it should not be used for filling up the lacuna left by the prosecution or by the defence neither to the disadvantage of the accused nor to cause serious prejudice to the defence of the accused nor to give an unfair advantage to either side; and further, the additional evidence should not be received as a disguise for a re-trial or to change the nature of the case against either of the parties. Even though the Court is empowered with such a wide power to recall the witness at any stage, under Section 311, Cr. P.C, the same has to be exercised sparingly and only when the ends of justice so demand, as higher the power, more careful should be its exercise, as otherwise, the words "just decision of the case" found in Section 311, Cr. P.C. would become redundant.
17. On course, Mr. N. Jothi, learned counsel for the petitioner, invited my attention to the decision in Rajendra Prasad case, distinguishing the ratio laid down in Mohanlal Shamji Soni case, that the Court, while exercising the power under Section 311, Cr. P.C. shall not use such power for filling up the lacuna, and contends that such lacuna is not to be equated with the fallout of an oversight committed by the party, without attempting to discover the laches on the part of the party who seeks to invoke Section 311, Cr. P.C. and that the powers conferred under Section 311, Cr. P.C. should be magnanimously exercised by the Court, permitting the parties to rectify the mistakes committed by inadvertence, but not to count the errors committed by the parties and to find out and declare, who among the parties performed better nor to reject the same on the ground of laches.
18. In my considered opinion, even though Section 311 Cr. P.C. statutorily confers power in absolute terms to be exercised at any stage of the trial, to summon the witness/witnesses or to examine or to recall and to reexamine them, such exigency, viz. either to permit to recall the witness or witnesses or to reject the same, would depend upon the facts and circumstances of each case and the materials placed before the Court for its subjective satisfaction.
19. In the instant case, admittedly, the petitioner was given maximum time, as prayed for, to furnish the list of her defence witnesses and documents under Section 22(a) of the P.C. Act on her application, namely, in Crl. M.P. No. 467 of 2000 by order dated 29-3-2000. But still, she failed to furnish the list of defence witnesses and documents on or before 11-4-2000. Therefore, she has no right to claim premium on her own lapses; nor to complain that she is deprived of the rights conferred under Section 243, Cr. P.C. read with Section 22(a) of the P.C. Act.
20. Further, she was not present on 12-4-2000 in the Court to examine herself as a defence witness, nor had made any request on her own, in writing, to examine herself as a defence witness as contemplated under Section 315, Cr. P.C. and therefore, I do not find any merit in her grievance in that regard.
21. Further, time allowed by the Court to file the list of defence witnesses and documents could not be elastically extended on account of the intervening proceedings in Crl. M.P. No. 508 of 2000 for recalling the witnesses, because, as held in Arivazhagan's case that the petitioner being an accused involved in a trial under the P.C. Act is more cumbered than an accused in other cases due to the legislative curbs and one of them is envisaged under Section 22(a) of the P.C. Act. Hence, the Court is not obliged to extend the time for filing the list of defence witnesses and documents automatically, which would otherwise delay the trial contrary to the intention of the legislature, in the case relating to the corruption by the public officers. On the other hand, it is an obligation on the part of the learned Special Judge to ensure speedy trial of the cases of bribery, corruption and criminal misconduct and to make the law, otherwise, more effective, to give effect to the intention of the legislature to prevent the overgrowing corruption among the public servants. Hence, the construction of Section 243(1) Cr. P.C. as telescoped by Section 22(a) of the P.C. Act must be consistent with the aforesaid legislative intent. Any deviation from the above principle would only give way for a deliberate delay in the proceedings. Under such facts and circumstances of the case, the trial Court is well within its power to close the evidence of the defence and refuse to recall the witnesses for want of sufficient reasons and materials and to proceed with hearing the arguments. Further, the intervening proceedings initiated by the petitioner herself under Section 311, Cr. P.C. for recalling the prosecution witnesses shall not, by any stretch of imagination, render the proceedings under Section 243(1) Cr. P.C. read with Section 22(a) of the P.C. Act, as a continuity of proceedings to enable the petitioner to furnish the list of defence witnesses and documents, beyond the time allowed by the Court, nor to claim the benefit under Section 315, Cr. P.C. to examine herself as a defence witness, even though she is fully competent to examine herself under Section 315, Cr. P.C.
22. I also do not see any merit in the contention of Mr. N. Jothi that the order dated 12-4-2000 made in Crl. M.P. No. 508 of 2000, refusing to recall the witnesses, vitiates the principles of natural justice, for the reason that it was not the case that the previous counsel for the petitioner was absent at the time of examining the witnesses and therefore the prosecution witnesses, who are material witnesses remain unchanged and consequently, the petitioner is likely to suffer and may ultimately face conviction.
23. As rightly pointed out by Mr. N. Natarajan, in the instant case, the learned Special Judge, previous counsel for the petitioner was very much present at the time of examining and cross-examining the prosecution witnesses. Hence, the decision relied upon in this regard, by Mr. N. Jothi, learned counsel for the petitioner, in Dwarakados case is of no avail to the petitioner.
24. The only reason stated by the petitioner in Crl. M.P. No. 508 of 2000 to recall the witnesses are stated as follows :
The petitioner fully evaluated the case to the best of her ability under the present circumstances. She has engaged her personal attention and the analysis of the entire issue. This has made the petitioner to feel that in the interest of justice it will be highly helpful if the witnesses mentioned in the schedule to this petition is re-called for further cross-examination on her side.
This Hon'ble Court may kindly consider the genuineness of this petition which is filed only after deep analysis and thorough discussion, the petitioner's counsel who had conducted cross-examination earlier is under medical-care due to throat problem. Hence she has to take the assistance of Mr. N. Jothi the counsel appearing for her in certain other matters. He may be permitted to appear on her behalf in addition to the counsel already on record. Even though the petitioner has given an undertaking to cooperate with the Court in completing the further cross-examination in the event of recalling the witnesses, such an undertaking could not be a ground to appreciate that the recalling of the witnesses are essential to the just decision of the case. The learned Special Judge, in his order dated 12-4-2000, after careful consideration of the averments of the petitioner, therefore rightly rejected the prayer to recall the witnesses by order dated 12-4-2000 in Crl. M.P. No. 508 of 2000 holding that taking the assistance of the present counsel, could not be considered as essential to the just decision of the case. In my considered opinion, such a reason, as referred to above, could not be construed as a just and sufficient material for the subjective satisfaction of the learned Special Judge to act in aid of justice.
25. Further, as rightly weighed by the learned Special Judge, it is not the case of the petitioner that due to inadvertence, certain questions could not be put to the witnesses in the cross-examination by the concerned counsel; nor it is made clear as to what type of evidence was going to be elucidated from the very prosecution witnesses sought to be recalled; nor she had stated how the recalling of the witnesses are essential for reaching the just decision of the case. It is pertinent to note that the counsel for the petitioner himself had admitted that no reason had been assigned in the petition for recalling the prosecution witnesses mentioned therein.
26. It is under such circumstances, the learned Special Judge had rightly arrived at a conclusion that the petitioner was not clear as to the nature of evidence that could be elucidated from the witnesses by cross-examining them further, even if they were recalled. Hence, in the absence of materials before him to satisfy that recalling of the prosecution witnesses is essential to the just decision of the case, the learned Special Judge, by order dated 12-4-2000, is right in holding that there was no bona fide in the request of the petitioner to recall the witnesses. The petitioner, therefore, having failed to discharge her obligation to place sufficient materials before the Court for availing the benefit of Section 311, Cr. P.C. having failed to furnish the list of witnesses within the time allowed under Section 22(a) of the P.C. Act and having failed to make any request in writing to examine herself as a defence witness, as required under Section 315, Cr.P.C., is not entitled to complain as though the Court has refused to exercise its power judiciously, but acted arbitrarily and capriciously, infringing her personal liberty conferred under Article 21 of the Constitution of India.
27. Even though Mr. N. Jothi, learned counsel for the petitioner filed a memorandum before this Court, setting out the reasons for recalling the prosecution witnesses, it may not be proper for this Court to entertain such memorandum, while testing the exercise of powers by the learned special Judge, as the said memorandum was never placed before him for his subjective satisfaction.
28. In any event, the powers conferred under Section 482, Cr. P.C, of course, have no limits, but the same should be exercised by this Court sparingly with due care and caution and with utmost self-restraint.
29. Even though Mr. N. Jothi, learned counsel for the petitioner, finally prayed, in the event of rejecting the contention of the petitioner, to stay the proceedings in C.C. No. 15 of 1997 on the file of the learned XII Additional City Civil Judge and Special Judge, Chennai, to enable the petitioner to approach the Apex Court for appropriate relief, I am of the considered opinion that such a request cannot be entertained either on merits or in law.
30. For the reasons stated above, both these petitions are dismissed; however, without costs.
31. Mr. N. Jothi, learned counsel for the petitioner, after the pronouncement of the above order, brought to my notice that the argument on behalf of the petitioner had been deferred, due to the pendency of the above petitions and therefore, seeks a direction to the learned XII Additional City Civil Judge and Special Judge, Chennai, to hear the arguments on behalf of the petitioner on 5-5-2000.
32. Hence, it is suffice to observe that the learned counsel for the petitioner is permitted to advance the arguments at the earliest, in any event, before 5-5-2000, of course, subject to the leave of the learned XII Additional City Civil Judge and Special Judge, Chennai.