Allowed

K.v.Vijyadas v. State of Kerala

Kerala HC24 Jul 2017Crl.MC/4883/2013

Case brief

AI extract

What is this about?

Kerala HC allowed a criminal misc. petition quashing the trial court's order reopening evidence and summoning witnesses for identification after the case was posted for judgment. The High Court held that Section 311 Cr.P.C. powers cannot be used to fill prosecution lacunae, especially when done at a late stage causing prejudice to the accused.

What did the court decide?

Order of trial court reopening evidence dated 06.03.2013 is set aside; trial judge to pronounce judgment within two months of receipt of this order.

K.v.Vijyadas Vs State of Kerala — Civil Procedure and Limitation | Kerala HC (2017)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MRS. JUSTICE SHIRCY V.

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MONDAY, THE 24TH DAY OF JULY 2017/2ND SRAVANA, 1939

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Crl.MC.No. 4883 of 2013

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SC 287/2008 of ADDL.ASSISTANT SESSIONS JUDGE, PALAKKAD CRIME NO. 296/2005 OF KASABA POLICE STATION , PALAKKAD

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PETITIONER/2ND ACCUSED:

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K.V.VIJYADAS KAKKATHOTTIL (H), THENNARI, ELAPPULLI, PALAKKAD

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BY ADVS.SRI.SURIN GEORGE IPE SRI.S.SUDARSANAN K.GOPALAKRISHNA KURUP (SENIOR)

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RESPONDENT/RESPONDENT/ COMPLAINANT/ STATE:

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STATE OF KERALA

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REPRESENTED BY THE STATION HOUSE OFFICER, PALAKKAD KASABA POLICE STATION, PALAKKAD, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 682031

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R BY PUBLIC PROSECUTOR SRI M.R. DHANIL

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THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 31.5.2017, THE COURT ON 24.7.2017 PASSED THE FOLLOWING:

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Crl.MC.No. 4883 of 2013 ()

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APPENDIX

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PETITIONER(S)' EXHIBITS

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ANNEXURE I TRUE COPY OF THE FINAL REPORT IN DATED 0802-2006 SUBMITTED BY THE PALAKKAD KASABA POLICE IN CRIME 296/2005

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ANNEXURE II TRUE COPY OF THE PROCEEDINGS SHEET IN S.C 287/2008 ON THE FILE OF THE ADDITIONAL ASSISTANT SESSIONS JUDGE, PALAKKAD

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RESPONDENT(S)' EXHIBITS

NIL

KS.

TRUE COPY

P.S. TO JUDGE

C.R.

SHIRCY V., J.

= = = = = = = = = = = = = = = = Crl. M.C. No.4883 of 2013

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= = = = = = = = = = = = = = = = Dated this the 24^th July, 2017

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ORDER

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An accused who is disgruntled with the proceedings before the trial court (Additional Assistant Sessions Court, Palakkad) where his case was re-opened suo motu for further examination of witnesses under Section 311 of the Code of Criminal Procedure (for short 'Cr.P.C') for more occasions than one, that too when posted for Judgment, is before this court with this petition under Section 482 of the Cr.P.C. to quash the order.

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The accused in S.C.287/2008 including this petitioner(2^nd accused ) are facing trial for having committed offences punishable under Sections 143, 147, 148, 324, 341, 308 read with Section 149 of the Indian Penal Code (hereinafter referred to as 'IPC').

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CRMC 4883/2013

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The prosecution allegation against the accused in brief, is that on 15.8.2005 at about 20 hours, they formed themselves into an unlawful assembly with the common object to attack the de facto complainant, trespassed into a Tuition Centre known as 'Prathibha Tuition Centre', where he was conducting RSS Physical Training Camp and wrongfully restrained him and caused injuries with deadly weapons and attempted to commit culpable homicide not amounting to murder. Before the trial court, PWs.1 to 7 were examined and the learned Public Prosecutor had given up CWs.3, 4 and 5. Thereafter, the prosecution closed the evidence and on 27.3.2012, the accused were questioned under Section 313 of Cr.P.C and as there was no defence evidence, the case was posted for arguments and arguments were heard on 7.6.2012 after several postings. Then instead of pronouncing Judgment, on 26.6.2012, the evidence was re-opened suo motu and summons was ordered for examination of CWs. 3, 4 and 5 though they

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were earlier given up by the prosecution. CWs. 4 and 5 were examined as PWs. 7 and 9 and CWs.3, 8 & 10 were again given up by the prosecution. After closure of the prosecution evidence, statement of the accused were recorded under Section 313 Cr.P.C. and they denied the incriminating material against them. As there was no defence evidence, the case was adjourned for hearing to 1.12.2012 and it was adjourned further and finally it was heard on 15.2.2013 and the case was posted for pronouncing Judgment to 6.3.2013. On 6.3.2013, the trial court again suo motu re-opened the evidence and ordered fresh summons to PWs.1 and 2.

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The said order is assailed in this petition which reads as follows:

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“ On perusal of the evidence(depositions) of PW1 and PW-2 it has come to the notice of this Court that on the day Pws.1 & 2 were examined, i.e. on 14.2.2012, A2 was absent. Hence the witnesses have not got an opportunity to identify A2 in court. So also no specific questions were seen put to these witnesses by prosecution enabling them to identify

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each and one accused in the dock. Hence I deem it fit and proper in the interest of justice to re-open the evidence and further examine PWs.1 & 2 in the presence of all the accused on the aspect of identification of each accused in Court. Hence prosecution evidence is suo-moto reopened and PWs.1 and 2 are re-called for further examination. Issue fresh summons to Pws.1 and 2 for further examination, Issue fresh summons to PWs. 1 and 2 for further examination in the presence of all the accused.”

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Heard the learned counsel for the petitioner as well the learned Public Prosecutor.

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Referring to the order it is urged with vehemence by the learned counsel for the petitioner that the powers conferred by the court under Section 311 of Cr.P.C is to do complete justice to the parties and not for filling up the lacuna left by the prosecution and further examination of the witnesses already examined as PW1 and 2 would cause prejudice to the accused. Hence, the order is liable to be set aside to do justice to the parties, submits the learned counsel for the petitioner.

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Learned Public Prosecutor has submitted that the

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court is duty bound to see that the witnesses are examined for the just decision of the case and therefore, the order of the court to re-open the evidence to re-examine PWs.1 and

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2 by the trial court is fully justified.

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Before adverting to the facts of the case it would be appropriate to take note of the relevant provision. Section 311 Cr.P.C. reads as under:

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“S. 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 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 it to be essential to the just decision of the case.”

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From a plain reading of Section 311 Cr.P.C. it is manifest that it comes into operation at any stage to enable the court to find out the truth by summoning any person as witness or examining any person already examined, to throw light for obtaining proper proof for the just decision of

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the case, when the court finds it essential and that can be exercised by the defence, the prosecution as well by the court suo motu, but it cannot be used to fill up the lacuna in the case of the prosecution .

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The scope and powers under Section 311 Cr.P.C. had been dealt with in detail and settled in Natasha Singh

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v. CBI (State)[2013(5)SCC 741] , as under:

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“14. The scope and object of the provision is to enable the Court to determine the truth and to render a just decision after discovering all relevant facts and obtaining proper proof of such facts, to arrive at a just decision of the case. Power must be exercised judiciously and not capriciously or arbitrarily, as any improper or capricious exercise of such power may lead to undesirable results. An application under Section 311 Cr.PC must not be allowed only to fill up a lacuna in the case of the prosecution, or of the defence, or to the disadvantage of the accused, or to cause serious prejudice to the defence of the accused, or to give an unfair advantage to the opposite party. Further, the additional evidence must not be received as a disguise for retrial, or to change the nature of the case against either of the parties. Such a power must be exercised, provided that the evidence that is likely to be tendered by a witness, is germane to the issue involved. An opportunity

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of rebuttal however, must be given to the other party. The power conferred 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 great caution and circumspection. The very use of words such as 'any Court', 'at any stage", or 'or any enquiry, trial or other proceedings', 'any person' and 'any such person' clearly spells out that the provisions of this section have been expressed in the widest possible terms, and do not limit the discretion of the Court in any way. There is thus no escape if the fresh evidence to be obtained is essential to the just decision of the case. The determinative factor should therefore be, whether the summoning/recalling of the said witness is in fact, essential to the just decision of the case.”

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11. In Mannan Sk and others v. State of West

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Bengal and another [AIR 2014 SC 2950] , the Supreme

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Court observed as follows:

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“S. 311 is couched in very wide terms. It empowers the court at any stage of any inquiry, trial or other proceedings under the Code to summon any person as a witness or examine any person in attendance, though not summoned as witness or recall and re-examine already examined witness. The second part of the Section uses the word 'shall'. It says that the court shall summon and examine or recall or re-examine any such person if his evidence

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appears to it to be essential to the just decision of the case. The words 'essential to the just decision of the case' are the key words. The court must form an opinion that for the just decision of the case recall or re-examination of the witness is necessary. Since the power is wide it's exercise has to be done with circumspection. It is trite that wider the power greater is the responsibility on the courts which exercise it. The exercise of this power cannot be untrammeled and arbitrary but must be only guided by the object of arriving at a just decision of the case. It should not cause prejudice to the accused. It should not permit the prosecution to fill-up the lacuna. Whether recall of a witness is for filling-up of a lacuna or it is for just decision of a case depends on facts and circumstances of each case.”

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Section 311 of Cr.P.C expressly provides the court wide discretion to recall and re-examine any person, if his evidence appears to be essential to the just decision of the case. In Mannan's case (supra) the Apex Court has observed that the words 'essential to the just decision of the case' are the key words.

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A close reading of this section would show that it has got two limbs. In the first limb, the word used by the

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legislature is 'may' which is discretionary and enables the court to use the power 'at any stage of any inquiry, trial or other proceedings'. But in the second limb, the legislature used the word 'shall' which is mandatory. The expression in the first limb and the second limb allows to exercise the discretionary as well mandatory authority, only when the court forms an opinion that such exercise is essential for the just decision of the case .Indisputably the conditions contained in the first part of Section 311 of Cr.P.C must be read conjunctively and not disjunctively. Discretion by a Judicial authority cannot be exercised arbitrarily. It must be exercised judicially and judiciously . Trial of a case should be a search for the truth which depends upon evaluation of the evidence collected judiciously. It has been held in Gurudev Singh v. State of Punjab [1982 Crl.L.J.2211] that the power conferred by this section and Section 155 of the Evidence Act is paramount and can be exercised at any stage of the proceedings, even after closing the defence

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evidence for the just decision of the case.

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Keeping in view the rival contentions of both parties,

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it is necessary to refer Section 155 as well Section 165 of the Evidence Act which have some bearing on the matter in

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hand. Section 155 of the Evidence Act reads as :

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''S. 155. Impeaching credit of witness

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The credit of a witness may be impeached in the following ways by the adverse party, or, with the consent of the Court, by the party who calls him:-

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(1) by the evidence of persons who testify that they, from their knowledge of the witness believe him to be unworthy of credit;

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(2) by proof that the witness has been bribed, or has [accepted] the offer of a bribe, or has received any other corrupt inducement to give his evidence;

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(3) by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted;

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Explanation – A witness declaring another witness to be unworthy of credit may not, upon his examination-in-chief, give reasons for his belief, but he may be asked his reasons in cross-examination, and the answers which he gives cannot be contradicted, though, if they are false, he may afterwards be charged with giving false evidence.''

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Section 165 of the Evidence Act confers power on

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the Judge to put questions to any witness at any time to obtain proper proof of relevant facts to arrive at a just decision of the case.

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Section 165 of the Evidence Act read thus :

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“165. Judge’s power to put questions or order production

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The Judge may, in order to discover or to obtain proper proof of relevant facts, ask any question he pleases, in any form, at any time, of any witness, or of the parties about any fact relevant of irrelevant; and may order the production of any document or thing; and neither the parties nor their agents shall be entitled to make any objection to any such question or order, nor, without the leave of the Court, to cross-examine any witness upon any answer give in reply to any such question:

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Provided that the judgment must be based upon facts declared by this Act to be relevant, and duly proved.

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Provided also that this section shall not authorize any Judge to compel any witness to answer any question or to produce any document which such witness would be entitled to refuse to answer or produce under sections 121 to 131, both inclusive , if the question were asked or the

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document were called for by the adverse party; nor shall the Judge ask any question which it would be improper for any other person to ask under section 148 or 149; nor shall he dispense with primary evidence of any document, except in the cases herein before excepted.”

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If the conditions under Section 311 Cr.P.C.are satisfied the court can on its own motion re-open evidence and summon any witness already examined even when the case stands for Judgment. But recalling and reexamination of a witness can not be to fill up the lacuna or to cover up the defect or to rectify the mistake crept in the evidence. It can never be to modify or rectify the mistake which occurred in the prosecution case. In other words law does not give an unbridled power to the court to re-open the case invoking Section 311 Cr.P.C. The court is supposed to evaluate the situation deeply before re-calling a witness. Whether it would cause prejudice or injustice to the accused, Whether it is to fill up the gap of the prosecution case, Whether it is to cover up the lacuna of the prosecution case etc have to be evaluated meticulously before recalling

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a witness by the court. The words 'the court shall summon and examine or re-call and re-examine any person if his evidence appears to it to be essential to the just decision of the case' had been thoughtfully employed in the said provision in its widest amplitude. While exercising the power under S.311 Cr.P.C especially at a belated stage, a great responsibility is cast upon the court to make sure that the evidence is re-opened not to rectify the mistake crept in or to supply the omissions in the case and if such an evaluation is not done, definitely that will cause prejudice to the accused.

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Coming to the facts of the case, it is pertinent to note that all the accused persons facing trial (except accused No.2) were present before the court when PWs.1 and 2 were examined. It is discernible from the deposition of these witnesses before the court that they have given evidence to the effect that the accused who attacked them are present before the court. They have not deposed that

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one of the assailants who attacked PW1 was not before the court. Their evidence appears as if they had previous acquaintance with the accused and they are not total strangers to them. That may be the reason why the prosecution has not cared to get each and every accused identified by the witnesses before the court. The prosecution had given up some witnesses.(CWs. 3,4 and 5). Then the evidence was re-opened and CWs. 3, 4 and 5 were again summoned to the Court and CWs.4 and 5 alone were examined as PWs. 8 and 9 and CWs.3, was again given up by the prosecution along with CWs. 8 & 10. Then the evidence was closed and the procedure under S.313 was again complied with and all the incriminating circumstances brought out in evidence by the prosecution were put to the accused. As the defence did not adduce any evidence arguments were heard and the case was taken up for Judgment. Then on the date on which the Judgment has to be pronounced, the court re-opened the evidence suo motu

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and that made this petitioner to rush to this Court with this petition.

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A perusal of the impugned order reveals that the main reason which weighed with the trial court to re-open evidence to re-call witnesses is that the prosecution witnesses did not identify the accused in court and no specific question was put to the witnesses by the prosecution so as to identify each and every accused personally in the dock. Such being the case, no doubt the argument advanced by the learned counsel for the petitioner that serious prejudice is caused to the accused as the attempt of the court was to make up the inherent weakness of the case and to give unfair advantage to the prosecution. Of course, the trial court has to play an active role during the trial of the case and the court is not a mere spectator or an umpire during the trial of the case, but certainly not to this extent as the case was re-opened twice when posted for Judgment. Of-course the responsibility of the court is very

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great and it has to elicit the truth involved in the issue but that cannot be at the risk of the accused causing injustice to them. Finding out the truth with the materials placed before the court cannot be done so as to cause injustice or prejudice to the persons in the dock. Here, the trial court has once reopened the evidence suo motu after final hearing and examined some witnesses already given-up and questioned the accused under Section 313 and recorded their statement and again it is re-opened suo motu by the order under challenge. The learned Public Prosecutor, who is conducting the case is having the right to give up any witness when he finds that his examination is not necessary for the case. It is not particular that all the witnesses cited by the prosecution have to be examined before the court to prove the case. He has to exercise his wide discretion and by exercising the discretion, here certain witnesses were given up by the prosecution, but when the court had earlier re-opened the evidence suo motu, those witnesses were

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summoned to the court. But again the prosecution had given up some witnesses and examined only two witnesses summoned by the court. Thereafter, after complying with all the procedural formalities the case was heard and posted for judgment. Thereafter again the trial court seized the powers of the Public Prosecutor and re-opened to summon the witnesses who were examined about one year back so as to identify the accused in court. The records reveal that the accused persons are regularly appearing before the court on all most all the posting dates. More importantly, as PW1 and PW2 were examined one year back, had an opportunity to identify the accused again in court, if they wanted so. As more than one year period had elapsed and if they are again summoned to the court to identify the accused in the dock, definitely prejudice will be caused to the accused. Sections 311 of Cr.P.C and 165 of the Evidence Act confer vast, broad and unrestricted powers on the trial Judges to elicit necessary materials from the

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witness during trial to arrive at the truth but it cannot be by mis-using the provision contained in Section 311 Cr.P.C. In my considered view, the trial court has attempted to fill up the lacuna in the case by summoning the witnesses again to the court and definitely that will cause prejudice to the accused and such a procedure cannot be adopted in a criminal case though the responsibility or duty of the court is to find out the truth before him. No doubt, each case obviously has to be decided on its own facts. Having considered the matter from all angles, I have no doubt in my mind that the procedure adopted by the trial court will result in causing injustice to the parties. In a criminal trial the foremost consideration and prime importance in the mind of the court is to ensure a fair trial of the case in a speedy manner. If the case is conducted in the manner adopted by the trial court it will never find an end. Having viewed the matter in all angles, I consider in the interest of justice a compelling necessity to interfere with the order of

CRMC 4883/2013

the trial judge.

Hence, the order under challenge of the trial court dated 6.3.2013 in S.C.No.287/2008 on the files of the Additional Assistant Sessions Judge, Palakkad, is hereby set aside. It is made clear that this court has not expressed any observations regarding the merits of the case. The learned trial Judge shall assess the evidence already recorded untrammelled by the observations made in this order and pronounce Judgment in accordance with law as expeditiously as possible, at any rate within the period of two months of receipt of the order or on production of the copy of this order.

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The Crl.M.C. is allowed accordingly.

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Sd/SHIRCY V. JUDGE

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True copy

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P.s. To Judge

K.v.Vijyadas v. State of Kerala

Case brief

What is this about?

What did the court decide?

K.v.Vijyadas v. State of Kerala

Case brief

What is this about?

What did the court decide?

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