Telangana High Court
Ahmed Mohiuddin vs The State Of Telengana And Another on 7 June, 2022
Author: K. Lakshman
Bench: K. Lakshman
HON'BLE SRI JUSTICE K. LAKSHMAN
CRIMINAL PETITION No.7952 OF 2021
ORDER:
Heard learned Party-in-person, learned Public Prosecutor appearing on behalf of respondent No.1 and Mr. Islamuddin Ansari, learned counsel representing Mr. Ahmed Mohiuddin, learned counsel for respondent No.2.
2. This Criminal Petition is filed under Section - 482 of the Cr.P.C. to quash the order dated 15.09.2021 in Crl.M.P. No.1112 of 2021 in C.C. No.57 of 2015 passed by the XIV Additional Chief Metropolitan Magistrate, Hyderabad.
3. The petitioner herein is de facto complainant. The offences alleged against respondent No.2 - accused No.1 are under Sections - 324 and 506 of IPC.
4. During the pendency of the said C.C., the petitioner herein had filed a petition vide Crl.M.P. No.1112 of 2021 under Section - 311 of the Cr.P.C. to recall the evidence of chief-examination and cross-examination of PW.1 for the purpose of correcting the errors occurred in recording the cross-examination of PW.1; adding additional witness statement of PW.1; and marking additional 2 KL,J Crl.P. No.7952 of 2021 documents of PW.1 already filed. The petitioner herein had filed the said petition on the following grounds:
(i) The Court below had closed the chief and cross-examination of PW.1 and posted the matter on 12.05.2021;
(ii) The petitioner herein had filed 20 documents along with petitions which are allowed;
(iii) Out of the said 20 documents, only 9 documents are marked as exhibits of PW.1 i.e., Exs.P1 to P9;
(iv) Final reports filed by the Punjagutta Police Station in Crime Nos.375 of 2011 and 859 of 2014 are not correct and are manipulated to protect the accused;
(v) There are some typing errors occurred while recording the cross-examination of PW.1 which are mentioned therein;
(vi) Learned counsel for accused No.1 asked the petitioner herein some questions which are not related to the present case and also asked him to confront some new documents during cross-
examination of PW.1.
5. With the aforesaid grounds, recalling of PW.1 is important and crucial.
3
KL,J Crl.P. No.7952 of 2021
6. The said application was opposed by respondent No.2 herein contending that the petition filed under Section - 311 of the Cr.P.C. is not maintainable. The witness is already cross-examined and there is no question of marking additional documents at this stage. The petition does not disclose as to what are the typographical errors to be corrected and for the correction of typographical errors, there is no need for recall of witness and there are no valid grounds to recall witness and record the evidence and to correct any mistakes.
7. The Court below in the impugned order had made the following observations:
(i) The Court below has recorded the evidence of PW.1 mentioning whatever he has stated in the open Court;
(ii) To overcome the lacunae in the cross-examination, PW.1 cannot say that it has errors;
(iii) PW.1 gave his evidence in-chief more than twice and he had opportunity to tell all the facts before the Court before concluding his chief-examination;
(iv) The petitioner herein had filed the present petition to cover up all his laches and omissions and the same is not a ground to allow the petition;4
KL,J Crl.P. No.7952 of 2021 However, the Court below has allowed the said petition in part by giving an opportunity to mark all the said documents.
8. Perusal of the record including the contentions of the petitioner herein and his deposition (PW.1) would reveal that the petitioner herein had filed the above said application under Section - 311 of the Cr.P.C. stating that some typographical errors occurred while recording cross-examination of PW.1 and that the learned counsel for accused No.1 had asked some questions which are not related to the present case and he had confronted some new documents during his cross-examination. Therefore, such errors have to be corrected.
9. In view of the above rival submissions, it is relevant to note that Section - 311 of Cr.P.C. deals with power to summon material witness, or examine person present, and as per the said provision, 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 5 KL,J Crl.P. No.7952 of 2021 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.
10. The Hon'ble Supreme Court in Swapan Kumar Chatterjee v. Central Bureau of Investigation1 has categorically held that the power under Section - 311 of Cr.P.C. is not to be exercised if the application has been filed as an abuse of the process of law. Thus, where prosecution evidence has been closed long back and the reasons for non-examination of witness earlier is not satisfactory, re-summoning of witness at belated stage would cause great prejudice to accused and should not be allowed. Similarly, the Court should not encourage filing of successive applications for recall of a witness under Section - 311 of Cr.P.C.
11. In Ratanlal VS. Prahlad Jat2, the Apex Court held that power under Section - 311 of Cr.P.C. must be exercised with caution and circumspection and only for strong and valid reasons. Recall of a witness already examined is not a matter of course and discretion given to Court in this regard has to be exercised judicially to prevent failure of justice. Reasons for exercising said power should be spelt 1 . (2019) 14 SCC 328 2 . (2017) 9 SCC 340 6 KL,J Crl.P. No.7952 of 2021 out in order. Delay in filing application for recalling a witness is one of the important factors which has to be explained in the application.
12. In P. Sanjeeva Rao v. State of A.P.3, the Apex Court held that Courts have to adopt liberal approach while exercising power under Section - 311 of Cr.P.C. If the grounds are wide, cogent and satisfactory, delay is not a bar to entertain an application under Section - 311 of Cr.P.C.
13. In view of the above said authoritative pronouncement of law, the petitioner herein cannot seek recall of PW.1 under Section - 311 of the Cr.P.C. to correct the errors. Whatever stated by PW.1 in the open Court was recorded by the Court below in the deposition. Therefore, the petitioner herein cannot say that there are typographical mistakes / errors while recording the cross-examination of PW.1. He would have raised objection before signing on the deposition, but he has not raised such objection. Now, he cannot say that there were errors in recording cross-examination of PW.1. The said contention of the petitioner herein is unsustainable. The petitioner herein cannot also contend that learned counsel for accused No.1 had put some questions which are not related to the present case. Learned Public 3 . AIR 2012 SC 2242 7 KL,J Crl.P. No.7952 of 2021 Prosecutor would have objected for the same. There is no objection at the time of recording the cross-examination of PW.1. Considering all the said aspects, the Court below had dismissed the application filed by the petitioner herein to the extent of recalling PW.1 for the purpose of correcting the errors. However, with a view to give an opportunity, the Court below has allowed the said petition for the purpose of marking certain documents. The impugned order is a reasoned order and there is no error in it warranting interference by this Court. The petitioner herein has failed to make out any case to grant relief and, therefore, the same is liable to be dismissed.
14. The present Criminal Petition is accordingly dismissed. As a sequel, the miscellaneous petitions, if any, pending in the criminal petition shall stand closed.
_________________ K. LAKSHMAN, J 7th June, 2022 Mgr