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Andhra High Court · body

2007 DIGILAW 1119 (AP)

Jeslina Ghei v. State of A. P.

2007-11-14

G.V.SEETHAPATHY

body2007
JUDGMENT This criminal revision is filed seeking to assail the order dated 13-12-2004 in Crl.R.P.No.252 of 2004, on the file of the IV-Additional Metropolitan Sessions Judge, Hyderabad, wherein the learned Sessions Judge allowed the revision petition and set aside the order dated 05-10-2004 in Crl.M.P.No.3619 of 2004 in C.C.No.197 of 1997, on the file of the XXII Metropolitan Magistrate-cum-Mahila Court, Hyderabad, wherein the said petition filed by the prosecution under Section 311 Cr.P.C., for recall of P.W.1, was allowed. 2. The petitioner herein is the de facto complainant and wife of respondent No.2 herein. She gave a complaint against respondents 2 and 3 herein accusing them of offences under Sections 498-A and 406 IPC. After investigation, police filed the charge sheet against respondents 2 and 3. The learned Magistrate has taken cognizance of the offences under Section 498-A and Section 6 of the Dowry Prohibition Act in C.C.No.197 of 1997. After a chequered career, the trial of the accused ultimately commenced. P.W.2 was originally examined-in-chief, but her evidence was eschewed on 03-12-2003 as she did not appear for cross-examination. The prosecution filed Crl.M.P.No.225 of 2004 under Section 311 Cr.P.C., for recall of P.W.2. The learned XXII Metropolitan Magistrate by order dated 22-01-2004 allowed the said petition. Aggrieved by the same, the accused preferred Crl.R.P.No.48 of 2004, on the file of the VII- Additional Metropolitan Sessions Judge and the learned Sessions Judge allowed the revision petition and set aside the order dated 22-01-2004. The evidence of P.W.2 thus remained off the record. Subsequently, the prosecution filed a fresh application Crl.M.P.No.3619 of 2004 under Section 311 Cr.P.C., for recall of P.W.2 for fresh examination. The said petition was allowed by the learned XXII Metropolitan Magistrate exercising the power under Section 311 Cr.P.C., and observed that the evidence of P.W.2, being the mother of the de facto complainant, is essential for the purpose of prosecution case. Aggrieved by the same, the accused preferred revision in Crl.R.P.No.252 of 2004 and the learned IV-Additional Metropolitan Sessions Judge by order dated 13-12-2004 allowed the said revision and set aside the order dated 05-10-2004 of the learned XXII Metropolitan Magistrate on the ground that the earlier order in Crl.R.P.No.48 of 2004 remained unchallenged. Aggrieved by the said order of the learned Sessions Judge, the present revision case is filed by the de facto complainant. 3. Aggrieved by the said order of the learned Sessions Judge, the present revision case is filed by the de facto complainant. 3. Heard the learned counsel for the petitioner and the learned counsel for the respondents. Records are perused. 4. Respondents 2 and 3 are facing prosecution for the charges under Sections 498-A, 406 and Section 6 of the Dowry Prohibition Act. The mother of the de facto complainant was examined-in-chief as P.W.2. As she did not appear for cross-examination, her evidence was eschewed. On an earlier occasion, the petition filed by the petitioner in Crl.M.P.No.225 of 2004 to recall P.W.2 was allowed by the learned Magistrate on 22-01-2004, but the revision filed against the said order was allowed on the ground that as the evidence of P.W.2 was already eschewed, nothing remained on record so as to recall her for cross- examination. Admittedly, the de facto complainant was not made a party to the revision petition in Crl.R.P.No.48 of 2004. Thus, the earlier revision petition was allowed on the technical ground that recall of P.W.2 for cross-examination does not arise because her evidence-in-chief was no longer available on record. The present application Crl.M.P.No.3619 of 2004 was filed by the prosecution under Section 311 Cr.P.C., for the purpose of recalling PW.2 and examining her afresh. The learned Magistrate again allowed the said petition on the ground that the evidence of P.W.2 is essential for a just decision in the case and the provisions of Section 311 Cr.P.C., are wide enough to meet the situation. The learned Sessions Judge allowed the revision petition Crl.R.P.No.252 of 2004 under the impugned order on the grounds that the earlier order in Crl.R.P.No.48 of 2003 remained unchallenged and secondly that the trial of the case is already over delayed. The petitioner filed Crl.R.C.No.734 of 2004 on the file of this Court. By order dated 06-07-2004, the said criminal revision case was permitted to be withdrawn with liberty to the petitioner to move any other petition under law. Subsequently, the petitioner filed Crl.M.P.No.361 of 2004. The objection of the learned counsel for respondents 2 and 3 regarding maintainability of the application by the de facto complainant is, therefore, untenable in view of the fact that liberty was given to her to move any other petition available under law while disposing of Crl.R.C.No.734 of 2004. 5. Subsequently, the petitioner filed Crl.M.P.No.361 of 2004. The objection of the learned counsel for respondents 2 and 3 regarding maintainability of the application by the de facto complainant is, therefore, untenable in view of the fact that liberty was given to her to move any other petition available under law while disposing of Crl.R.C.No.734 of 2004. 5. As can be seen from the record, the de facto complainant cannot be entirely blamed for the delay in commencement of trial as the accused have filed criminal petitions under Section 482 Cr.P.C., for quashing of the proceedings against them and they have filed writ petitions for the same relief in spite of dismissal of criminal petitions filed under Section 482 Cr.P.C. As the third accused did not appear before the Court, the case against him was split up. The de facto complainant cannot, therefore, be blamed for the delay in commencement of the trial and at any rate on that ground the application filed by her for recall of P.W.2 cannot be rejected. It is to be noted that the earlier revision petition was allowed on technical ground that the question of cross-examination does not arise because the chief-examination was not on record. Therefore, the present application is filed for examining P.W.2 afresh. Allowing of the said revision on the ground that the earlier order in Crl.R.P.No.48 of 2004 remained unchallenged is, therefore, not proper. 6. Section 311 Cr.P.C., enables the Court at any stage of the trial to summon any person as a witness or recall or 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 for just decision of the case. 7. A careful reading of the provisions of Section 311 Cr.P.C., discloses that it contains two parts. The first part gives a discretionary power to the Magistrate by using the word 'may' to 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. The second part mandates the Court by using the expression 'shall summon' and examine or recall and re-examine any such person if his evidence appears to it to be essential for just decision of the case. The second part mandates the Court by using the expression 'shall summon' and examine or recall and re-examine any such person if his evidence appears to it to be essential for just decision of the case. The expression 'any such person' used in the second part relates to the person referred in the first part. The scope of Section 311 Cr.P.C., is wide enough and it enables the Court to summon any person as a witness or examine any person in attendance though not summoned as a witness. The Court can recall and re-examine any person already examined. If the Court considers his evidence to be essential to the just decision of the case, the Court shall summon and examine such person or recall and re-examine such person. The section does not contain any prohibition or bar to examine a person as witness whose evidence is already eschewed. The section enables the Magistrate to recall and re-examine any such person already examined. Thus, when a witness is already examined-in-chief and also cross-examined, the Court can in exercise of its powers under Section 311 Cr.P.C., recall and re-examine him in-chief or in cross or both. When that is so, there cannot be any impediment in the way of recording the evidence of a person who was previously examined, but his evidence was eschewed. When once the evidence is eschewed, it means that the said evidence is off the record and cannot be looked into. There is no prohibition contained anywhere preventing such person whose evidence is previously eschewed from being recalled or re-examined, especially when such evidence is found to be essential for just decision of the case. The learned Magistrate has observed that the evidence of P.W.2, being mother of the de facto complainant, is essential for just decision of the case and, therefore, exercised the power under Section 311 Cr.P.C., to recall and re-examine the said witness. The impugned order of the learned Sessions Judge is silent on the aspect as to whether or not the evidence of P.W.2 is essential for just decision of the case. The grounds on which the revision petition was allowed as stated supra are untenable. The impugned order of the learned Sessions Judge is silent on the aspect as to whether or not the evidence of P.W.2 is essential for just decision of the case. The grounds on which the revision petition was allowed as stated supra are untenable. The order dated 05-10-2004 in Crl.M.P.No.3619 of 2004 of the learned Magistrate permitting re- examination of P.W.2, as a fresh witness, invoking the powers under Section 311 Cr.P.C., does not suffer from any illegality or material irregularity so as to invoke the revisional jurisdiction. The impugned order of the learned Sessions Judge dated 13-12-2004 in Crl.R.P.No.252 of 2004 is, therefore, set aside and the mother of the de facto complainant is permitted to be examined as a witness. However, having regard to the fact that the case was instituted almost 10 years back and it has already undergone a chequered career, the learned Magistrate is directed to dispose of the case within a period of four months from the date of receipt of a copy of this order and both parties are directed not to adopt any delaying tactics, and ensure expeditious disposal of the case within the above prescribed period. 8. In the result, the criminal revision case is allowed with the directions as stated above.