Amalraj v. The Inspector Of Police

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 11.06.2018

CORAM:

THE HONOURABLE MR.JUSTICE D.KRISHNAKUMAR CRL.O.P.(MD)No.9212 of 2018 and Crl.MP(MD)No.3990 of 2018 Amalraj .. Petitioner Vs.

State rep.by The Inspector of Police, Devakottai Town Police Station, Sivagangai District.

.. Respondent Petition is filed under Section 482 of the Criminal Procedure Code to call for the records in Cr.M.P.No.2599/2017 in STC.No.1393/2011 on the file of the Judicial Magistrate, Devakottai dated 07/03/2018 and set-aside the same. For Petitioner : Mr.S.Muniyandi For Respondent : Mr.K.Suyambulinga Bharathi Government Advocate(Crl.Side)

O R D E R

This Criminal Original Petition has been filed to call for the records in Cr.M.P.No.2599 of 2017 in STC.No.1393 of 2011 on the file of the Judicial Magistrate, Devakottai and set aside the order dated 07.03.2018 passed therein.

2.According to the petitioner, he has filed an application under Section 311 of Cr.P.C., to recall P.Ws.1 to 3 for the purpose of making them cross examination. The said application was dismissed by the Court below. Challenging the same, this petition has been filed.

3.The learned counsel appearing for the petitioner submitted that as per provision under Section 311 Cr.P.C., the petitioner, at any stage, can file application before the concerned Court to recall the witnesses. It is further submitted that sufficient reasons have been stated in the application to recall the witnesses. Further it is submitted that the case is posted for argument on 04.05.2018 and without cross examining the

witnesses PWs.1 to 3, the petitioner would not get a fair trial. The Court below without considering the said fact and also without giving any opportunity to the petitioner, has erroneously dismissed the application. Challenging the same, this petition has been filed.

4.Per contra, the learned Government Advocate (Crl.Side) appearing for the respondent submitted that the petitioner has not stated satisfactory reasons in the application to recall the said witnesses. Further, PW1 has been examined on 17.08.2012 and PWs.2 to 3 have been examined on 19.11.2015. On the said dates, no petition has been filed to examine the witnesses on some other date and now the case is posted for advancing argument. At this stage, the present petition has been filed only to drag on the proceedings. The Court below after considering the facts and circumstance of the case, has rightly dismissed the petition and the same does not require any interference. In support his contention, the learned Government Advocate (Crl.Side) has relied upon the decision reported in (2016) 2 Supreme Court Cases 402 [State (NCT of Delhi) v.

Shiv Kumar Yadav] and paragraph - 29, reads as follows:- "29.We may now sum up our reasons for disapproving the view of the High Court in the present case: (i)The trial court and the High Court held that the accused had appointed counsel of his choice. He was facing trial in other cases also. The earlier counsel were given due opportunity and had duly conducted crossexamination.

(iii) Expeditious trial in a heinous offence as is alleged in the present case is in the interests of justice;

(iv)The trial Court as well as the High Court rejected the reasons for recall of the witnesses; (v)The Court has to keep in mind not only the need for giving fair opportunity to the accused but also the need for ensuring that the victim of the crime is not unduly harassed;

(vi)Mere fact that the accused was in custody and that he will suffer by the delay could be no consideration for allowing recall of witnesses, particularly at the fag end of the trial;

(vii)Mere change of counsel cannot be ground to recall the witnesses;

(viii)There is no basis for holding that any prejudice will be caused to the accused unless the

witnesses are recalled;

(ix)The High Court has not rejected the reasons given by the trial court nor given any justification for permitting recall of the witnesses except for making general observations that recall was necessary for ensuring fair trial. This observation is contrary to the reasoning of the High Court in dealing with the grounds for recall I.e., denial of fair opportunity on account of incompetence of earlier counsel or on account of expeditious proceedings;

(x)There is neither any patent error in the approach adopted by the trial court rejecting the prayer for recall nor any clear injustice if such prayer is not granted."

5.Further, in Rajaram Prasad Yadav Vs. State of Bihar reported in (2013) 14 SCC 461, the Hon'ble Supreme Court has culled out certain principles to be kept in mind, while exercising power under Section 311 Cr.P.C., which read as follows:- "(i)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. (ii) 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.

(iii) 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.

(iv) 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.

(v) The wide discretionary power should be exercised judiciously and not arbitrarily.

(vi) 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.

(vii) 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.

(viii) 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.

(ix) 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.

(x) 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.

.....

(xi)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."

6.The said decision has also been followed in Haryana Vs. Ram Mehar and others reported in (2016) 8 Supreme Court Cases 762, where the Hon'ble Supreme Court has held that "concept of fair trial cannot be limitlessly stretched to permit recall of

witnesses endlessly on ground of magnanimity, etc." 7.This Court has already dealt with the similar issue involved in this petition in Crl.O.P.No.94 of 2017, relying upon the judgment rendered by the Hon'ble Supreme Court in (2016) 2 Supreme Court Cases 402 and dismissed the said petition, rejecting the contention of the petitioner. In this case also, the petitioner has not adduced any satisfactory reason to make interference in the order passed by the Court below. 7.The Court below after considering all the materials available on record has rightly dismissed the petitioner's application and the same does not warrant any interference of this Court.

8.In fine, this Criminal Original Petition is dismissed. Consequently, Crl.MP(MD)No.3990 of 2018 is also dismissed. Sd/- Assistant Registrar(CS-II) /True Copy/ Sub Assistant Registrar To

1. The Judicial Magistrate, Devakottai.

2. The Inspector of Police, Devakottai Town Police Station, Sivagangai District.

3. The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.

+ 1 cc TO Mr.S.Muniyandi , Advocate in SR No. 67742 mj AE/SB/SAR1/26.06.2018/5P/5C CRL.O.P.(MD) No.9212 of 2018 11.06.2018