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2001 DIGILAW 104 (KER)

Shaji v. State

2001-02-12

R.RAJENDRA BABU

body2001
Judgment :- R. Rajendra Babu, J. The common question for consideration in the above cases is whether the trial court was justified in granting time to the prosecution to let in evidence after a period of three years from the date of framing the charge in view of the direction of the Supreme Court in the clarification judgment in Raj Deo Sharma's case 2000 (1) KLT 463 (SC) = (1999 SCC (Crl.) 1324). 2. The petitioner in Crl. M.C. 795/2000 and 830/2000 is the same. Two cases were charge sheeted against him by the C.B.I, alleging the commission of offences under Ss.420, 468 and 471 IPC and those cases were taken to the file as C.C.1342/94 and C.C.1343/94 respectively before the addl. Chief Judicial Magistrate's Court (Economic Offences), Ernakulam. The charge was framed in both the cases on 18,9.95. In C.C. 1342/94 (Crl.M.C. 795/2000), six witnesses were examined as PWs.1 to 6 whereas PW.1 was partly examined in C.C.1343/94. Thereafter the accused filed CrI.M.P. 1180/99 in C.C.1342/94 and M.P. 995/99 in C.C.1343/94 for closing the prosecution evidence, in view of the directions of the Supreme Court in the first Raj Deo Sharma's case AIR 1998 SC 3281 =1999 (1) KLT 173 (SC). The above petitions were allowed by the Court below as per order dated 6.4.1999 and the prosecution evidence was closed. Thereafter the Supreme Court issued the clarification judgment in Raj Deo Sharma's case reported in 2000 (1) KLT 463 (SC). In view of the above decision, the prosecution filed CrI.M.P. 20739/99 in C.C.1342/94 and CrI.M.P. 20741/99 in C.C.1343/94. The Court below relying on the clarification judgment issued by the Supreme Court, allowed the above petitions as per order dated 21.1.2000 and granted extension of time for the prosecution to let in evidence. Aggrieved by the above orders, the accused filed Crl.M.C. 795/2000 and 830/2000 for quashing the above proceedings invoking S.482 Cr.P.C. 3. Crl.R.P. 88/2000 was filed by the 2nd accused in C.C.1263/94 before the Additional Chief Judicial Magistrate's Court (E.O.), Ernakulam challenging the order in M.P. 20742/99 in the above case, allowing the prosecution an extension of time in accordance with the clarification judgment of the Supreme Court in Raj Deo Sharma's case (2000 (1) KLT 463 (SC)). The petitioner along with the other accused were charge sheeted for offences under Ss.120(b), 420,511,465 and 471 IPC. The petitioner along with the other accused were charge sheeted for offences under Ss.120(b), 420,511,465 and 471 IPC. The charge was framed on 25.1.95 and PW.1 was examined on 16.6.98. The 1st accused filed CrI.M.P. 1537/99 for closing the prosecution evidence in accordance with the direction of the Supreme Court in Raj Deo Sharma's case. The above petition was allowed and evidence was closed by the order dated 14.5.99. In view of the subsequent direction of the Supreme Court in 2000 (1) KLT 463 (SC), the prosecution filed Criminal M.P. 20742/99 for extension of time for adducing evidence. The Court below by order dated 17.1.2000 allowed the above petition. Aggrieved by the above order, the 2nd accused has come up in revision. As the question involved in all the three cases is identical, both the Criminal M.Cs. and the Crl.R.P. are disposed of by a common judgment. 4. Heard the learned counsel for the petitioners and Sri. V.P. Yohannan, Sri. S.Rajeev and the standing counsel for the C.B.I., Sri. K.P. Satheesan. 5. In all the three cases, the accused filed petitions for closing the prosecution evidence and to proceed to the next step in accordance with the directions issued by the Supreme Court in Raj Deo Sharma's case 1999 (1) KLT 173 (SC) _ (AIR 1998 SC 3281). The above petitions were allowed as the period of two years had elapsed since the framing of the charge. On 22.9.99, the Supreme Court made the clarification judgment in Raj Deo Sharma's case 2000 (1) KLT 463 (SC) wherein it was held that an additional period of one year can be claimed by the prosecution in respect of prosecutions which are pending on the date of the judgment in the main appeal. One of the arguments advanced by the learned counsel for the petitioners was that the period of one year extended as per the above direction of the Supreme Court would start from the expiry of the period of two years contemplated in the earlier judgment, whereas the learned standing counsel for the C.B.I, argued that the extension of period of time of one year would start from the date of the judgment of the main appeal i.e. from 8.10.98. The direction of the Supreme Court on the above aspect is in para 15 of the judgment which reads: "Shri. Altaf Ahmad, learned Additional Solicitor General submitted that unless directions Nos. The direction of the Supreme Court on the above aspect is in para 15 of the judgment which reads: "Shri. Altaf Ahmad, learned Additional Solicitor General submitted that unless directions Nos. (i) and (iii) are made prospective from the date of judgment in Raj Deo Sharma, 1998 AIR SCW 3208: AIR 1998 SC 3281:1998 Crl.LJ4596, prosecution in many pending cases would be jeopardised. He pointed out that on the date of the said judgment the period concerned stood expired in many cases. We have bestowed our consideration on the said submission and we find force in it. Possibility of miscarriage of justice resulting therefrom must be averted. We are, therefore, inclined to include a rider that an additional period of one year can be claimed by the prosecution in respect of prosecutions which were pending on the date of judgment in the main appeal, and the Court concerned would be free to grant such extension if the Court considers it necessary in the interest of administration of criminal justice. As we suspended the operation of the judgment from 14.5.1999 till today the said time of suspension will stand excluded from the aforementioned additional period of one year". A reading of para 15 of the judgment would leave no room for any doubt regarding the starting point of the extended period of one year and would clearly direct that the period of extension would start from the date of the judgment passed by the Supreme Court in the main appeal on 8.10.98 and not from the date of expiry of the period of two years from the date of framing of the charge. It was intended to avert the possibility of any miscarriage of justice caused as a result of the earlier direction and to grant a further time of one year to let in evidence. The same is made further clear by the Supreme Court in providing that the period of suspension of the operation of the judgment from 14.5.99 also should be excluded in computing the additional period of one year and hence the above argument advanced by the learned counsel for the petitioners cannot be accepted. 6. The same is made further clear by the Supreme Court in providing that the period of suspension of the operation of the judgment from 14.5.99 also should be excluded in computing the additional period of one year and hence the above argument advanced by the learned counsel for the petitioners cannot be accepted. 6. The learned counsel for the petitioners advanced another argument that the petition filed by the prosecution was not one under S.311 Cr.P.C. as directed in the judgment of the Supreme Court and the period of extension of one year can be granted only when a petition for extension of time for examination of particular witness or witnesses is sought under S.311 of the Cr.P.C. The learned standing counsel for the CBI, Sri. K.P. Satheesan submitted that the above direction issued by the Supreme Court in exercising powers under S.311 for examination of witnesses was in addition to the general direction issued for extension of a period of one year from the date of the main judgment. Para 9 of the judgment of the Supreme Court reads: "We may observe that the power of the Court as envisaged in S.311 of the Code of Criminal Procedure has not been curtailed by this Court. Neither in the decision of the seven judge Bench in A.R. Antulay' case, (1992) 3 SCC 225:1992 AIR SCW 1872: AIR 1992 SC 1701: (1992 Crl.LJ 2717) nor in Kartar Singh's case (1994 Crl. LJ 3139) such power has been restricted for achieving speedy trial. In other words, even if the prosecution evidence is closed in compliance with the directions contained in the main judgment it is still open to the prosecution to invoke the powers of the Court under S.311 of the Code. We make it clear that if evidence of any witness appears to the Court to be essential to the just decision of the case it is the duty of the Court to summon and examine or recall and re-examine any such person.". A reading of the above direction would clearly indicate that the Supreme Court was reminding of the duty of the Court to invoke S.311 of the Code in appropriate cases, for examination of witnesses by summoning them or recalling or re-examining when the Court finds it essential for a just decision of the case. A reading of the above direction would clearly indicate that the Supreme Court was reminding of the duty of the Court to invoke S.311 of the Code in appropriate cases, for examination of witnesses by summoning them or recalling or re-examining when the Court finds it essential for a just decision of the case. This, in fact, was not a general extension of time, but the Supreme Court was reminding the trial court of the necessity to invoke S.311 and to examine re-call or re-examine witness/witnesses at any stage in appropriate cases. In fact, the above direction has no bearing with the general direction for the extension of time of one year which was applicable to every case pending on the date of the judgment of the main appeal. The learned standing counsel for the C.B.I, placing reliance on para 6 of the clarification judgment further submitted that the Supreme Court has made it further clear that the direction regarding the closure of evidence cannot have any application in granting time in appropriate cases, in the interest of justice by recording exceptional reasons. The direction number one in Raj Deo Sharrna's case 1999 (1) KLT 173 (SC) was to proceed to the next step in respect of the cases punishable with imprisonment for a period not exceeding seven years if a period of two years had elapsed since the recording of the plea of the accused. The direction No. 3 was in respect of cases where the punishment was above seven years. There the direction was to close the prosecution evidence on completion of 3 years from the date of recording the plea of the accused, unless for very exceptional reasons to be recorded and in the interest of justice the Court considers it necessary to grant further time to the prosecution to adduce evidence beyond the aforesaid time limit. So far as the offences punishable with imprisonment for more than seven years were concerned, the Court was reminded of the discretion to grant further time, when in the interest of justice, it was necessary for granting further time. But while granting such further time the court had to record those exceptional reasons for granting further time. By the clarification judgment the above discretionary power to grant further time to the prosecution to let in evidence reserved under direction '3' was imported to direction No. '1' also. But while granting such further time the court had to record those exceptional reasons for granting further time. By the clarification judgment the above discretionary power to grant further time to the prosecution to let in evidence reserved under direction '3' was imported to direction No. '1' also. Paragraph 6 of the judgment in 2000 (1) KLT 463 (SC) reads: "We are inclined to state by way of clarification that the discretion of the courts in granting further time (exercisable "for every exceptional reasons to be recorded and in the interest of justice" as for Direction No. (iii) above) can be imported in respect of Direction No. (i) as well." Thus a consideration of the clarification judgment of the Supreme Court would make it clear that in all cases which were pending on the date of the judgment of the main appeal, an extension of a period of one year can be granted when the prosecution requires to let in further evidence and the court finds it necessary in the administration of justice and the above is a general direction. The Supreme Court has further reminded the courts of the duty to invoke S.311 Cr.P.C. to examine or to recall or to re-examine any witness/witnesses in appropriate cases for a proper administration of justice. The above direction has no bearing with the general direction issued by the Supreme Court regarding the extension of the period of one year in all pending cases. Further the court has the discretion in granting time in suitable cases for the proper administration of criminal justice by recording the exceptional reasons and the above directions are applicable to particular cases. 7. The learned counsel for the petitioners argued that the extension of a period of one year granted by the Court has already expired and hence the prosecution is not entitled to let in further evidence in the above cases. It was further argued that there was no stay of the proceedings and as such the failure on the part of the prosecution to let in evidence cannot be condoned and the prosecution cannot be allowed to let in further evidence. The learned standing counsel for the C.B.I, submitted that the Supreme Court had issued general guidelines in respect of such cases in paragraph 7 and 8 of the judgment. Paragraph 7 and 8 of the judgment read: "7. The learned standing counsel for the C.B.I, submitted that the Supreme Court had issued general guidelines in respect of such cases in paragraph 7 and 8 of the judgment. Paragraph 7 and 8 of the judgment read: "7. According to the CJB.I. a procrastinating accused might take advantage of the said excluding provision "by filing appeal or revision against interim orders and it would indirectly delay the trial without obtaining any stay orders from superior Courts". 8. There is no scope for any such apprehension because of the judgment has clearly provided that if the inability for completing prosecution evidence was attributable to the conduct of the accused, the Court is not obliged to close the prosecution evidence at all. If the trial gets postponed on account of pendency of any appeal or revision filed against any interim order even though there was no order of stay it is open to the trial court to reckon that period also within the ambit of clause (iv) extracted above". In view of the above direction given by the Supreme Court the period during which the a proceedings were pending before this court also has to be excluded irrespective of whether there was stay of the proceedings or not. Thus the period during which these proceedings were pending before this Court will have to be excluded in computing the period of extension of time. Then only the opportunity given to the prosecution to let in evidence would be effective or real. Hence the above argument advanced by the learned counsel for the petitioners also cannot be accepted. 8. The learned Standing counsel for the C.B.I. advanced an argument that the directions issued in Raj Deo Sharma's case was without prejudice to the directions issued by the Supreme Court in Common Cause cases (1996) 4 SCC 33 and AIR 1997 SC 1539. It was further submitted that the Supreme Court has excluded certain types of cases from the operation of the above directions in the common cause case and the directions issued by the Supreme Court in Raj Deo Sharma's case also can apply only to such cases where directions issued by the Supreme Court in the Common Cause case would apply and the directions in Raj Deo Sharma's case shall also apply to the cases excluded from the operation of the directions in the Common Cause case. The learned counsel appearing for the petitioners submitted that the directions issued by the Supreme Court in Raj Deo Sharma's case itself was in respect of a case which was excluded from the operation of the directions in the Common Cause case and the Supreme Court has specifically directed to comply with the above directions, and hence the directions issued by the Supreme Court in Raj Deo Sharma's case would apply to all cases irrespective of whether those cases were excluded from the operation of the directions in the Common Cause case. It was further submitted that the line of approach made by the Supreme Court in Common Cause case and in Raj Deo Sharma's case was different and in the Common Cause case the direction was to dispose of cases by acquittal or discharge exempting certain categories of cases from its operations, whereas in the Raj Deo Sharma's case, the direction was to close the evidence and to proceed to the next step. The learned standing counsel for C.B.I, placed reliance on a decision of a Division Bench of the Bombay High Court in I.P. Sankaran v. Dy. Superintendent of Police & Ors. (Crl. Writ Petition No. 117/99), where a different approach was taken by the Bombay High Court. Justice Sankara Narayanan of this Court in a decision reported in Sahadevan v. Excise Inspector (1999 (1) KLJ 687) has taken the view that the directions issued by the. Supreme Court in Raj Deo Sharma's case would apply to all categories of cases as the above direction was issued in a case which was exempted from the operation of the directions in the Common Cause case. The clarification judgment issued by the Supreme Court in Raj Deo Sharma's case 2000 (1) KLT 463 would facilitate the court to grant reasonable time for speedy trial of cases and the same can be applied to all categories of cases. Further the Supreme Court has given a mandate to all the trial courts to comply with S.309(1) Cr.P.C. and to continue the examination of witnesses from day-to-day until the witnesses in attendance has been completed. Further the Supreme Court has given a mandate to all the trial courts to comply with S.309(1) Cr.P.C. and to continue the examination of witnesses from day-to-day until the witnesses in attendance has been completed. Taking into consideration of all the above directions in the clarification judgment of Supreme Court, the argument of the learned counsel for the C.B.I, that the directions in Raj' Deo Sharma's case will not apply to the cases exempted from the directions in the Common Cause case cannot be accepted and the above directions would apply to all categories of cases. The Court below was fully justified in allowing all the petitions filed for extension of time for letting in further evidence and I find no reasons to interfere with the above order. Thus when extension of time is granted the trial court has to post the case day-to-day and to examine the remaining witnesses and to dispose of the cases as expeditiously as possible. Hence I find no reason to-interfere with the order passed by the court below and these petitions are liable to be dismissed. In the result, Crl.M.C. 795/2000, 830/2000 and Crl.R.P. 88/2000 are dismissed.