section 311 CrPC scope and power of court : Kerala High Court 2018

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT:

THE HONOURABLE MRS. JUSTICE SHIRCY V.

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

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

 

PETITIONER/2ND ACCUSED:
————————-

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

 

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

RESPONDENT/RESPONDENT/ COMPLAINANT/ STATE:
———————————————

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

 

R BY PUBLIC PROSECUTOR SRI M.R. DHANIL

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

Crl.MC.No. 4883 of 2013 ()
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APPENDIX

PETITIONER(S)’ EXHIBITS
———————–
ANNEXURE I TRUE COPY OF THE FINAL REPORT IN DATED 08-
02-2006 SUBMITTED BY THE PALAKKAD KASABA POLICE IN CRIME 296/2005

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

RESPONDENT(S)’ EXHIBITS
———————–

NIL

KS.

 

TRUE COPY

 

P.S. TO JUDGE
 

C.R.

 

SHIRCY V., J.
= = = = = = = = = = = = = = = =
Crl. M.C. No.4883 of 2013
= = = = = = = = = = = = = = = =
Dated this the 24th July, 2017

ORDER

 

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.

2. The accused in S.C.287/2008 including this

petitioner(2nd 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’).

CRMC 4883/2013 2

 

 

3. 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.

4. The said order is assailed in this petition which

reads as follows:

” 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

CRMC 4883/2013 4

 

 

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.”

5. Heard the learned counsel for the petitioner as well

the learned Public Prosecutor.

6. 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.

7. Learned Public Prosecutor has submitted that the

CRMC 4883/2013 5

 

 

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

2 by the trial court is fully justified.

8. 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:

“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.”

9. 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

CRMC 4883/2013 6

 

 

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 .

10. The scope and powers under Section 311 Cr.P.C.

had been dealt with in detail and settled in Natasha Singh

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

“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

CRMC 4883/2013 7

 

 

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.”

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

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

Court observed as follows:

“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

CRMC 4883/2013 8

 

 

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.”

 

12. 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.

13. A close reading of this section would show that it

has got two limbs. In the first limb, the word used by the

CRMC 4883/2013 9

 

 

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

CRMC 4883/2013 10

 

 

evidence for the just decision of the case.

14. Keeping in view the rival contentions of both parties,

it is necessary to refer Section 155 as well Section 165 of

the Evidence Act which have some bearing on the matter in

hand. Section 155 of the Evidence Act reads as :

”S. 155. Impeaching credit of witness

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:-

(1) by the evidence of persons who testify that they, from

their knowledge of the witness believe him to be unworthy

of credit;

(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;

(3) by proof of former statements inconsistent with any

part of his evidence which is liable to be contradicted;

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.”

CRMC 4883/2013 11

 

 

15. Section 165 of the Evidence Act confers power on

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.

Section 165 of the Evidence Act read thus :

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

production

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:

 

Provided that the judgment must be based upon facts

declared by this Act to be relevant, and duly proved.

 

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

CRMC 4883/2013 12

 

 

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.”

16. 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 re-

examination 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

CRMC 4883/2013 13

 

 

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.

17. 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

CRMC 4883/2013 14

 

 

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

CRMC 4883/2013 15

 

 

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

petition.

18. 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

CRMC 4883/2013 16

 

 

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

CRMC 4883/2013 17

 

 

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

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the trial judge.

19. 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.

The Crl.M.C. is allowed accordingly.

 

 

Sd/-
SHIRCY V.
ks JUDGE
True copy

P.s. To Judge