Allowed

V.Srikanth v. the State of A.P. Rep., by Its Pp

Andhra Pradesh HC22 Dec 2023CRLRC/2457/2011

Case brief

AI extract

What is this about?

The High Court allowed criminal revisions challenging the trial court's dismissal of petitions to recall witnesses PW.1 and PW.2 for cross-examination, holding that recalling them was necessary for complete justice as their previous examination did not fully elicit facts regarding the accused's guilt.

What did the court decide?

Petitions allowed, impugned orders set aside, witness PW.1 and PW.2 directed to be recalled for cross-examination, and trial to be concluded within three months.

V.Srikanth Vs the State of A.P. Rep., by… — Criminal Trial and Appeal | Andhra Pradesh HC (2023)

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IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

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FRIDAY, THE TWENTY SECOND DAY OF DECEMBER TWO THOUSAND AND TWENTY THREE

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PRESENT

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THE HONOURABLE SRI JUSTICE V SRINIVAS

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CRIMINAL REVISION CASE Nos.2448 & 2457 of 2011

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CRIMINAL REVISION CASE No.2448 of 2011

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Revision filed under Sections 397 & 401 of Cr.P.C, against the order passed in Crl.M.P.No.450 of 2011 in STC No.207 of 2006 dated 21.11.2011 on the file of the Court of the Judicial Magistrate of I Class, Amadalavalasa, Srikakulam District.

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Between:

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V.Srikanth, S/o Surya Prakasha Rao, aged 38 years. Proprietor, M/s. Surya Industries, D.No.4, Industrial Estate, Srikakulam^District.

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...Petitioner/Accused

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AND

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The State of Andhra Pradesh, Represented by its Food Inspector,

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Division - I, Srikakulam District, Srikakulam.

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...Respondent/Complainant

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I.A. NO: 1 OF 2011(CRLRCMP. NO: 3696 OF 20111

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Petition under Section 482 CPC praying that in the^{circumstances} stated in the affidavit filed in support of the petition, the High Court may be

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pleased to stay all further proceedings in STC No.207 of 2006 on the file of the Court of the Judicial Magistrate of I Class, Amadalavalasa,^Srikakulam District, Pending disposal of Criminal Revision Case.

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Counsel for the Petitioner : Sri A.K.S.K.Sai Bhargav, representing on behalf of Sri P Durga Prasad

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Counsel for the Respondent : Sri Naidana Sravan Kumar, Special Assistant Public Prosecutor

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CRIMINAL REVISION CASE NO: 2457 OF 2011

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Revision filed under Sections 397 & 401 of Cr.P.C, against the order passed in Crl.M.P.No.808 of 2011 in STC No.207 of 2006^{dated21.11.2011} on the file of the Court of the Judicial Magistrate of I Class, Amadalavalasa, Srikakulam District.

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Between:

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V.Srikanth, S/o Surya Prakasha Rao, aged 38 years, Proprietor, M/s. Surya Industries, D.No.4, Industrial Estate, Srikakulam^District.

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...Petitioner/Accused

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AND

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The State of Andhra Pradesh, Represented by its Food Inspector,

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■ Division - I, Srikakulam District, Srikakulam.

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...Respondent/Complainant

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I.A. NO: 1 OF 2011fCRLRCMP. NO: 3707 OF 2011)

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Petition under Section 482 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to stay all further proceedings in STC No.207^{of2006onthefileof} the Court of the Judicial Magistrate of I Class, Amadalavalasa, Srikakulam District, Pending disposal of Criminal Revision Case.

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Counsel for the Petitioner : Sri A.K.S.K.Sai Bhargav, representing on

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behalf of Sri P Durga Prasad

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Counsel for the Respondent : Sri Naidana Sravan Kumar, Special Assistant Public Prosecutor

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The Court made the following: COMMON ORDER

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THE HON’BLE SRI JUSTICE V.SRINIVAS

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CRIMINAL REVISION CASE No.2448 of 2011 and

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CRIMINAL REVISION CASE No.2457 of 2011

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COAAMON ORDER:

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These revisions are filed challenging the orders dated 21.11.2011 in Crl.M.P.No.450 of 2011 in S.T.C.No.207^of2006and Crl.M.P.No.808 of 2011 in S.T.C.No.207 of 2006 passed by the learned Judicial Magistrate of First Class, Amadalavalasa,^{v^hereinboththe} petitions filed by the petitioner herein to recall^PW.1 and PW.2 for cross examination, were dismissed.

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According to the petitioner, the reasons stated in^theaffidavit filed in support of the petition are that on the date^{ofpostingofthe} case for cross examination of PW.1, his counsel on^recordwentto Tirupati and another reason for non-cross examination of PW.2 is that his counsel failed to put some important questions^onmaterial and technical aspects of Prevention of Food Adulteration^Act, 1954, due to mistake and oversight. For those reasons, recall^ofPW1 and PW2 is necessary for effective disposal of the case.

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It is stated in the counters that the said petitions^{arefiledata^} belated stage, only to drag on the proceedings in one^wayorthe other.

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On considering the material on record and submissions, the trial Court dismissed the petitions stating that'they^{arefiledwithan} intent to delay the proceedings.

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Aggrieved by the impugned orders, the revision petitioner/accused preferred these revisions.

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Heard Sri A.K.S.K.Sai Bhargav, learned counsel representing^Sri P.Durga Prasad, learned counsel for the petitioner^and Sri Naidana Sravan Kumar, learned Special Assistant Public Prosecutor appearing for the respondent-State.

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Learned counsel Sri A.K.S.K.Sai Bhargav submits that^whenthe matter was posted to 24.02.2011 for cross examination of PW.1, though junior counsel requested to adjourn the case^{asseniorcounsel} was out of station, the trial Court closed the evidence of PW.1 without giving opportunity to cross examine PW.1 and posted the matter for examination of the accused under Section 313 Cr.P.C., thereby denied the legitimate right to cross examine the witness. He further submits that the petition filed under Section 311 Cr.P.C. was dismissed by the trial Court though the power conferred under Section 311 Cr.P.C. has to be exercised at any stage of inquiry or trial, resulting miscarriage of justice.

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Sri Naidana Sravan Kumar, learned Special Assistant Public Prosecutor submits that on many occasions, on one pretext^orthe other, the petitioner was postponing the cross examination^ofPW.l and PW.2. In Para-7 of the impugned orders, the trial^Courtclearly mentioned the dates on which the case was posted for cross examination of PW.'1 and PW.2 and it was on account^{ofdraggingthe} matter on one reason or other, the trial court compelled^topasssuch order and there is no mistake on the part of the petitioner is incorrect and there is no flaw rather illegality committed^bythetrial Court while dismissing the petitions.

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The point that arises for consideration in these revisions^is;

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"Whether there is any flaw or irregularity or impropriety in the orders passed by the trial Court?"

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This Court closely perused the material on record to^findout whether there are any justified reasons to allow these petitions, which were filed to recall PW.1 and PW.2 for the purpose^ofcross examination.

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Before deciding the issue in question, this Court^hastokeepin mind the proviso, i.e.. Section 311 Cr.P.C., which^{readsasfollows:}

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“311. Power to summon material witness, or examine person present. 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

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in attendance, though not summoned as a witness, or. recall and re- examine any person already examined;^and the Court shall summon and examine or recall and re examine any such person if his evidence appears to^itto be essential to the just decision of the case. ”

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From above the section, it is clear that the object is to find out the truth or obtain proper proof for such facts,^{whichwillleadto} a just and correct decision of the case. More so, to^{correcterrorsor} rectify mistakes that were not adduced or brought on^recorddueto any inadvertence. Not only that, to ensure that the judgment is not rendered on inchoate, inconclusive speculative presentation of facts. as thereby the ends of justice would be defeated. And in order to give effective order, by affording an opportunity to^{theaccusedinthe} fairest manner possible.

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In the latest judgment of the Hon’ble Supreme Court^while dealing Section 311 Cr.P.C, in Satbir Singh v. State of Haryana\ it was held as follows: "Secf/on 311 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the "CrPCj has engaged^thisCourt's attention before. We will advert to a few decisions of recent vintage. While overturning an order of the High Court allowing an application for recall of a witness, which was rejected by the trial

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2023 see OnLine SC 1086

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4V'

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Court, this Court held as under, in Ratanlal v Prahlad^{Jat^,} at para17 it is held as :ln order to enable the court^tofindoutthe truth and render a just decision, the salutary provisions^ofSection 311 are enacted where under any court by exercising its discretionary authority at any stage of inquiry, trial or other proceeding can summon any person as witness or examine^anyperson in attendance though not summoned as a witness or recall^or re examine any person already examined who are expected^tobeable to throw light upon the matter in dispute. The object of the provision as a whole is to do justice not only from^{thepointofview} of the accused and the prosecution but also from the^pointofview of an orderly society. This power is to be exercised^{onlyforstrong} and valid reasons and it should be exercised with caution and circumspection. Recall is not a matter of course and^{thediscretion} given to the court has to be exercised judicially to^{preventfailureof} justice. Therefore, the reasons for exercising this^{powershouldbe} spelt out in the order.’

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On the same aspect the Apex Court delivered a judgementⁱⁿ State (NCT of Delhi) v. Shiv Kumar Yadav^, it was held^thus:

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^(2017) 9 see 340: ^(2016) 2 sec 402

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" Certainly, recall could be permitted if essential for the just decision, but not on such consideration as has been adopted in the present case. Mere observation that recall was necessary "for ensuring fair trial" is not enough^unless there are tanyble reasons to show how the fair trial suffered without recall. Recall is not a matter of course and the discretion given to the court has to be exercised judiciously to prevent failure of justice and not arbitrarily. While the party is even permitted to correct its bona fide error^and may be entitled to further opportunity even when such opportunity may be sought without any fault on the part of the opposite party, plea for recall for advancing Justice^has to be bona fide and has to be balanced carefully with^the other relevant considerations including uncalled for hardship to the witnesses and uncalled for delay in the trial. Having regard to these considerations, there is no ground to justify the recall of witnesses already examined."

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On the same point, the Apex Court in Vijay Kumar v. State of U.f^, while explaining scope and ambit of Section 311^hasheldas under: (SCC p. 141, para 17):

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“17. Though Section 311 confers vast discretion upon the court and is expressed in the widest possible terms, the discretionary power under the said section can be invoked only for the ends of justice. Discretionary power should^be exercised consistently with the provisions of [CrPC]^andthe principles of criminal law. The discretionary power conferred under Section 311 has to be exercised judicially for^reasons stated by the court and not arbitrarily or capriciously."

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In Manju Devi v State of Rajasthan^, the Apex Court emphasized that a discretionary power like Section 311 CrPC is to enable the Court to keep the record straight and to clear any

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"^(2011) 8 800 136 ^(2019) 6 SCC 203

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41/

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ambiguity regarding the evidence, whilst also ensuring^{noprejudiceis} caused to anyone.

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It is held that a note of caution was sounded as held^bythe

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Apex Court, in Swapan Kumar Chatterjee v Central Bureau^of

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Investigation^, as under:

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'W.The first part of this section which is permissive^gives purely discretionary authority to the criminal court^and enables it at any stage of inquiry, trial or other proceedings under the Code to act in one of the three ways, namely, (i) to summon any person as a witness;^or (ii) to examine any person in attendance, though not summoned os a witness; or (Hi) to recall and re-examine any person already examined. The second part, which is mandatory, imposes an obligation on the court (i) to summon and examine or (ii) to recall and re-examine^any such person if his evidence appears to be essential^tothe just decision of the case.

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It is well settled that the power conferred under Section 311 should be invoked by the court only to^meet the ends of justice. The power is to be exercised only^for strong and valid reasons and it should be exercised^with great caution and circumspection. The court has vide power under this section to even recall witnesses for re examination or further examination, necessary in the interest of justice, but the same has to be exercised after taking into consideration the facts and circumstances of each case. The power under this provision shall not be exercised if the court is of^the view that the application has been filed as an abuse^of the process of law. 12. Where the prosecution evidence has been closed, long back and the reasons for non-examination of the witness earlier are not satisfactory, the summoning^of the witness at belated stage would cause great prejudice to the accused and should not be allowed.

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^(2019) 14 see 328

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Similarly, the court should not encourage the filing of successive applications for recall of a witness under^this provision.'

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The Apex Court also held in Harendra Rai v. State of Bihar^,

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a 3-Judge Bench of Apex Court was of the opinion that^Section311 CrPC should be invoked when 'it is essential for the just decision of the case.'

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From the above, the law laid down in the above cited judgments, at any stage of any inquiry, trial or other proceeding under the Code, summon any person as a witness, or examine any person in attendance or recall and re-examine any person already examined, when, it is essential for the just decision^ofthecase.

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The submission of the learned counsel for the petitioner^isthat since their counsel on record went to Tirupati, they^areunableto cross examine PW.1, which is neither willful nor wanton. May be true that on the earlier occasions, so much of gap placed^betweenthe Bench and the counsel for the petitioner. But ultimately, the applications filed by the petitioner were dismissed stating that the petitioner did not make any attempt to conduct cross^{examinationof} the witnesses in a fair trial rather to render verdict only after full dressed trial, which mean to say after examining the witnesses, like

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' 2023 see OnLine SC 1023

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\ %

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chief examination as well cross examination, thereafter verifying the veracity the conscience conduct and cogent corroborates^thecaseof the prosecution.

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In this case, in view of non-cross examination of PW.1 and PW.2, culminates only for conviction alone because^{nothingelicited} by the counsel to prove the guilt of the accused beyond all reasonable doubt. Hence, this Court is of the view^{thatunlessand} until PW.l and PW.2 are cross examined by the accused^counsel, there may not be complete justice rather complete verdict in the case on hand.

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In the circumstances, this Court is of the opinion^that if PW.1 and PW.2 are recalled, it will not cause any prejudice^becausethey are official witnesses and they will speak which is^{alreadyplacedon} record alone and such record will be justified and on the said testification alone the trial Court even find the merits. For these reasons, I am of the view that this is a fit case to^{allowthepetitions} filed by the petitioner.

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Accordingly, these two Criminal Revision Cases are allowed setting aside the orders dated 21.11.2011 in Crl.M.P.No.450^of2011 in, S.T.C.No.207 of 2006 and Crl.M.P.No.808 of 2011 in^{S.T.C.No.207of} 2006 passed by the learned Judicial Magistrate of First Class,

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/ i

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Amadalavalasa, subject to payment of costs of Rs. 1,000/- (Rupees One thousand only) to the Bar Association, A.P.High Court, Amaravati, within a week from the date of receipt of a copy of this order. Learned counsel for the petitioner is directed to cross examine PW.1 and PW.2 on the date fixed by the trial Court,

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Before parting the matter as the case pertains to the year, 2006, the trial Court is directed to commence the proceedings^and dispose of the said S.T.C. within a period of three months from the date of receipt of a copy of this order and submit compliance of the

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same.

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Interim orders granted earlier if any, stand vacated.

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Miscellaneous petitions pending if any, shall stand^closed.

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SD/- M RAMESH BABU DEPUTY REGISl^A^

/ /

//TRUE COPY//

SECTION OFFICER

The Judicial Magistrate of I Class, Amadalavalasa,^{SrikakulamDistrict.}

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One CC to Sri P Durga Prasad, Advocate [OPUC] 3. One CC to Sri Naidana Sravan Kumar, Advocate [OPUC] 4. Two CCs to the Public Prosecutor, High Court of Andhra^Pradeshat Amaravathi [OUT]

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