Research › Search › Judgment

Kerala High Court · body

2005 DIGILAW 180 (KER)

Marathupally Beeran v. State of Kerala

2005-02-28

M.SASIDHARAN NAMBIAR

body2005
ORDER M. Sasidharan Nambiar, J. 1. Accused in C.C. 169/92 on the file of Judicial First Class Magistrate,Malappuram, who is challenging the order of learned Magistrate in C. M. P.8220/04 wherein the prayer to recall PW 1 invoking powers under S.311 ofCr.P.C. was rejected by learned Magistrate is the petitioner. Petitioner wasoriginally convicted for the offence under S.411, 471, 465 and 468 of I.P.C.Petitioner challenged conviction and sentence before Sessions Court in Crl. A.155/93. Criminal Appeal was allowed setting aside conviction and sentenceand remanding the case back to Magistrate with a direction to recall PW 13,the expert and also grant liberty to petitioner to examine the mediators asdefence witnesses. Both petitioner and complainant and State challenged theorder of remand before this Court in Crl. R. P. 142/95, 248/95 and 426/95.This court confirmed the order of the Sessions Court and dismissed therevisions. Petitioner thereafter filed C. M. P. 8220/04 before court below with aprayer to recall PWs 1 and PW 13 under S.311 of Cr.P.C. As per impugnedorder learned Magistrate dismissed petition holding that remand order islimited to the extent of recalling PW 13 and examining mediators and thereforePW 1 cannot be recalled. It is challenged in this petition filed under S.482 ofCr.P.C. 2. Heard Adv. M. K. Damodaran, learned counsel appearing for revisionpetitioner and Adv. Sathyanatha Menon appearing for second respondent whois permitted to be impleaded as a necessary party in the revision. 3. S.311 of Cr.P.C. provides that any court may, at any stage of any inquiry,trial or other proceeding summon any person as a witness, or examine anyperson in attendance, any person already examined; and the Court shallsummon and examine or recall and reexamine any person already examined ifhis evidence appears to it to be essential to the just decision of the case.Therefore, the crux for invoking S.311 of the Code is the satisfaction of theCourt that it is essential for a just decision of the case either to summon andexamine any person as a witness or recall and reexamine a witness orexamine any person. Once that satisfaction is arrived at, it is mandatory thatcourt shall either summon and examine or recall and reexamine such person.Argument of Adv. Once that satisfaction is arrived at, it is mandatory thatcourt shall either summon and examine or recall and reexamine such person.Argument of Adv. M. K. Damodaran is that order of remand does not a bar thepower of learned Magistrate under S.311 either expressly or impliedly and inthe interest of justice it is essential to recall or reexamine PW 1, who wasexamined in 1992, before the expert was recalled and reexamined as well asthe mediators are examined pursuant to the order of remand. Adv.Sathyanatha Menon would argue that scope of the remand order is limited tothe extent provided therein and as the remand order shows that the limitedpurpose for which the case was remanded was to recall PW 13 and to enablethe accused to examine the mediators and therefore PW 1 who was examinedearlier cannot be recalled and reexamined. 4. To appreciate the scope of order of remand it is necessary to extractrelevant portion of the order of this court in the earlier revisions. It reads asfollows: 2. The learned Magistrate after collecting the additional evidence as directedby the learned Sessions Judge shall, deal with the matter afresh, based on theevidence already on record and that collected pursuant to remanduntrammeled by any of the views contained in the judgment of the learnedSessions Judge. It is made clear that the Magistrate will be entitled to have afree and fresh look on the matter with reference to the evidence finallyavailable. Question is whether the said direction of this court to have a free and freshavailable, restricts the power of the Magistrate under S.311 of Cr.P.C. 5. Apex Court in Jamatraj Kewalji Govani v. State of Maharashtra ( AIR 1968 SC 178 ) had considered the scope of S.540 of Cr.P.C. 1898 corresponding toS.311 of 1973 Code. It was held that S.540 is intended to be wide as therepeated use of the word 'any' throughout its length clearly indicates. Sectionis in two parts. First part gives a discretionary power but latter part ismandatory. There is no limitation on the power of the court arising from thestage to which the trial may have reached, provided the court is bona fide ofthe opinion that for the just decision of the case, step must be taken.Requirement of just decision of the case, step must be taken. Requirement ofjust decision of the case does not limit the action to something in the interestof accused only. Requirement ofjust decision of the case does not limit the action to something in the interestof accused only. Action may equally benefit the prosecution. It was thereforeheld "It is difficult to limit the power under our Code to cases which involvesomething arising ex improviso which no human ingenuity could foresee, inthe course of the defence. Our Code does not make this a condition of theexercise of the power and it is not right to embark on judicial legislation. Casesthat go that far are of course not quite right. Indeed they could be decided onfact because it can always be seen whether the new matter is strictlynecessary for a just decision and not intended to give an unfair advantage toone of the rival sides." 6. This aspect was subsequently analysed in the light of S.311 by the apexcourt in Rajendra Prasad v. Narcotic Cell (1999 SCC (Cri.) 1062). It was heldthat it is not correct legal proposition that court cannot exercise power ofresummoning any witness if once that power was exercised, nor can thepower be whittled down merely on the ground that prosecution discoveredlaches only when the defence highlighted them during final arguments.Position is similar herein. For the reason that PW 1 was not recalled before hewas originally convicted or for the reason that the order of remand does notprovide on the ground the remand order does not prove that PW 1 can berecalled and reexamined, power of the Magistrate under S.311 of Cr.P.C.cannot be curtailed. Power is unbridled. Only condition is that Magistrate hasto be satisfied that it is necessary for a just decision of the case. As held byApex court in Jamatraj's case, where the court exercises the power undersecond part of S.311 the enquiry cannot be whether accused has broughtanything suddenly or unexpectedly, but whether the court is right in thinkingthat new evidence is need by it for a just decision of the case. Unfortunatelythis aspect was not looked into by the learned Magistrate at all. There is forcein the argument of Adv. Sathyanatha Menon that petition does not disclose thereason for which PW 1 is to be recalled and reexamined. Only allegation in the petition was that order of remand enables the court below to have a fresh lookon the evidence and therefore PW 1 has to be examined. There is forcein the argument of Adv. Sathyanatha Menon that petition does not disclose thereason for which PW 1 is to be recalled and reexamined. Only allegation in the petition was that order of remand enables the court below to have a fresh lookon the evidence and therefore PW 1 has to be examined. It is for theMagistrate to decide whether it is necessary for a just decision of the case torecall and reexamine PW 1. Though reason for recalling PW 1 is not shown inC. M. P. 8220/ 04, considering the fact that PW 13, the expert has to bereexamined, it is necessary to recall and reexamine PW 1, before PW 13 wascross examined for a just decision of the case. Learned Magistrate shouldhave permitted the petitioner to recall PW 1 and reexamine him after limitingthe scope of reexamination. 7. Therefore, the impugned order in C. M. P. 8220/04 in C. C. 169/92 is setaside and PW 1 is permitted to be recalled and reexamined for the limitedextent of cross examining PW 1 with reference to documents executed by PW1 and his handwriting. Learned Magistrate is directed to recall PW 1 within aperiod of two weeks from the date of receipt of order.