The High Court of Telangana dismissed a criminal petition filed by an accused to quash an order allowing the trial court to recall a witness under Section 311 Cr.P.C. for marking a bonafide certificate.
Criminal Petition No. 3527 of 2022 dismissed; pending miscellaneous applications closed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD
FRIDAY,THE FIFTEENTH DAY OF JULY TWO THOUSAND AND TWENTYTWO
PRESENT
THE HONOURABLE DR. JUSTICE CHILLAKUR SUMALATHA
CRIMINAL PETITION NO: 3527 OF 2022
Between:
Kanaparthy Shyam Sunder,S/o.K.Madhu,Aged about 35 years, Occ.Medical Reprdsentbtor, Ryo.Flat No.304, LandMark Apartments,BesideSaket Towers, Kapra, R.R. District,N/o.H.No.2-130,Ramnagar, Choppadhandi, Karimnagar District.
.....PETITIONER/ RESPONDENT/ACCUSED
AND
The State of Telangana,Through S-H.O, P.S, Narayanaguda, Hyderabad, Rep. by its Public Prosecutor,Highcourt at Hyderabad, Hyderabad.
RESPONDENT/PETITIONER/ COMPLAINANT
Petition under Section 482 of Cr.P.Cpraying that in thecircumstances stated in the Memorandum of Groundsof CriminalPetition,the HighCourt may be pleased to call for the recordspertainingto the Order, Dl.28lO3l2O22 passed by the Honourable V AdditionalMetropolitan Sessions Judgeat Hyderabad in Crl.M.P.No.73/2022 in S.C. No. 296/2015and to Quashthe same by dismissing the Application of the Respondentfiled U/s.311of Cr.P.C and pass
l-A- NO: 'l OF 2022
Petitron under Section 482 of Cr.P.Cprayingthat in the circumstances stated in the Memorandum of Groundsof Criminal Petition, the HighCourt may be pleased to grant stay of all furtherproceedingsin pursuanceof the Order, Dl.2Blo3l2O22passed by the HonourableV Additional MetropolitanSessions Judge at Hyderabad in Crl.M.P.No.73l2O22in S.C.No.296/2015
This Petition coming on for hearing,upon p€rusingthe Memorandumof Grounds of Criminal Petition andupon hearingthe argumentsof Sri C HARI PREETH ,Advocate for thePetitionerand the Assistant'Public Prosecutoron behalf of the Respondent.
The Court made the following:ORDER
HON'BLE DR. JUSTICE CHILLAKUR SUMALATHA CRIMINAL PBTITI ON No.3527 of 2022 ORDtrR:
Projecting that the order that is rendered by the Court of V Additiona_l Metropolitan Sessions Judge, Hyderabad in Crl.M.P.No.T3 of 2022 in S.C.No.296 of 2015, dated 28.3.2022 is unsustainable in law and thereby, seeking the Court to quash the same, the petitioner who is arayed as accused in the said Sessions Case is before this Court.
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Dr.CSL, J CrlPNo.3527 of 2022
allowed the said application. Aggrieved by the same, the petitioner is before this Court.
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marking the bonafide certilicate of the alleged victim girl. Learned counsel by submitting thus, contends that ttre trial Court is expected to deliver judgment basing on the material that is available on record and the Court is not expected to conduct a roaring enquiry by collecting the evidence as if it is the prosecutor and the same is impermissible under law.
follours:-
! 202 I SCC Online Bom iO54
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Dr.CSL, J CrlPNo.3527 of 2022
"No doubt, under Section 31 I Cr.p.C, any Court may, at any stage of any inquiry, trial or other proceeding 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, if it is essential to the just decision of the case, however, at . the same time, the said power under Section 3 1 1 cannot be used to lill in the lacunae in the prosecution evidence. Having regard to the peculiar lacts of this case that the impugned order issuing witness summons for recalling the complainant and panch was passed after arguments were advanced and written submissions were filed, on the aspect of memory card not being proved, it was not permissible for the learned Judge to pass the impugned order. The same, in the facts, would clearly tantamount to l.illing up the lacunae in thc case. it would also result in causing serious prejudice to the petitioner. "
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decision of the Hon'ble Apex Court in the case betrveen Mannan Shatkh and. others Vs. State of West Benga.P, wherein the Court at para 12 of the ord,:r held as follows:-
"The aim of every court is to discover truth. Section 311 of the Code is one of many such provisions of the Code which strengthen the arms of a court in its effort to ferret out the truth by procedure sanctioned by law. It is couched in very wide terms. It empowers the court at any stage of any inquiry, trial or other proceedings under the Codc to summon any person as a witness or examine an1' person in attendance, though not summoned as witness or recall and reexamine already examined witness. The second part of the section uses the \r'ord 'stnlt. It says that the court shalt summon and examine or recali or reexamine any such person if his evidence appears to it to be essential t<; thc ;ust ciecision of the case. The words "e.ssenfrcl to the just decision of tle case' are the key'lvords. The court must form an oplnion that for the just decision of the casc recall
I (2014)13 scc 59
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or re-examination of the witness is necessary. Since the power is wide its 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 untrammelled and arbitrary but must be guided only 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 filting up of a lacuna or it is for just decision of a case depends on the lacts and circumstances of each case. In all cases it is likely to be argued that the prosecution is trying to fifl up a lacuna because the line of demarcation is thin. It is for thc court to consider all the circumstances and decide whether the prayer for recall is genuine.,,
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Prosecutor also contends that the age of the alleged victim girl is a relevant factor and her age has to be established by the prosecuting agency before the trial Court and therefore, steps were taken for getting her bonafide certificate ma-rked, and that, having regard to t he genuineness in the request made, the tria-l Cou rt allowed the application which is filed to recall P.W 7 for getting the bonafide certilicate of the alleged vrct im girl marked. Therefore, the objection taken by the learned counsel for the petitioner/ accused iS unsustainable. The learned Assistant Public Prosecutor further submits that the bonallde cerl ificate which was intended to be marked u,as indecd referred to by the Investigating Officer n,hile gr'.'ing evidence, but inadvertently the said document could not be marked and therefore, the triai Court has r:gtrlll siven an opportunity for the prosecutlng agencv to get the said document marked.
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Dr.CSL, J CtlPNo.3527 of 2022
summon a-t1y person as a '!r/itness, or examine an), person in attendance, though not summoned, as a witness, or recall and re-examine any person who was already examined. The Court can do so at any stage of inquiry, trial or other proceedings that are pending before it. This power has to be exercised when the Court deems exercise of such power to be essential for just conclusion of the case. A fair judicial system requires the Courts to play active and vital role during the course of trial proceedings. Time and again, the Hon'ble Apex Court held that the trial Courts are not expected to be mute or silent spectators. Furthermore, Section 165 of the Indian Evidence Act, 1872 grants exclusive power to the Court tc) put questions and to get answers regarding the relevant facts for arriving at a just conclusion irrespective of the fact that the prosecution or the defence lailed to exercise due diligence in eliciting the material facts from the witnesses.
^-..
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Dr.CSL, J CrLPNo.3527 of 2022
t. 1 I I l
I i. Iherefore, this Court is of the view that the ie:rrned judge of the trial Court did not err in allowing ihe applicatron rhar is liled lor reopening the evidence on prosecution side and for recalling p.W-7 for the plrrpose of getting the bonafide certificate of t\e
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alleged victim girl marked. Thus, with the foregoing
observations, this Court concludes that this Criminal
Petition lacks merits.
i3. As a sequel, pending miscellaneous applications, if any, shall stand closed.
To,
SD/.G.SIREESHA ASSrsrANr RqqtsrEAg //TRUE COPY// t QV t. \q\i'L SECTIOMOFFIC"ER'
ONE FAIR COPY TO THE HON'B-LE DR. JUSTICE CHILLAKUR SUMALATHA _ '' (FOR HIS LORDSHIPS KIND PERUSAL)
'I . The V Additional Metropolitan Sessions Judge Hyderabad
6 ?Jlu Under Secretary, Union of lndia Ministry of Law , Justrce and Company Affairs New Delhi
B. Two CD Copies
,*
HIGH COURT
DATED:1510712022
,t0,
ORDER CRLP.No-3527 of 2022
DISMISSING THE CRIMINAL PETITION
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2 issues framed by the court
Whether the trial Court erred in recalling the witness P.W-7 to mark the bonafide certificate under Section 311 Cr.P.C.
Whether invoking Section 311 Cr.P.C. to recall a witness for filling lacunae in prosecution evidence is sustainable when arguments were already concluded.
Colour shows how this judgement treated each authority
Norga Rujan @ Pagarkar Vs. State of MaharashtraReferred¶30
Norga Rujan @ Pagarkar Vs. State of Maharashtra
Mannan Shatkh and. others Vs. State of West BengalReferred¶38
Mannan Shatkh and. others Vs. State of West Bengal
Crl.R.C.No.63 of 2022Referred¶28
Crl.R.C.No.63 of 2022
3 provisions across 2 enactments
Kanaparthy Shyam Sunder
The State of Telangana
DR. JUSTICE CHILLAKUR SUMALATHA
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
