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2021 DIGILAW 488 (KER)

Rajeeb S/o Hassan v. State of Kerala

2021-05-04

GOPINATH P.

body2021
ORDER : 1. This petition has been filed by the sole accused in SC No. 6/2017 on the file of the Special Judge, Fast Track, Perinthalmanna (Manjeri Sessions Division), challenging an order dated 03.03.2021 in Crl. M.P. No. 33/2021 in that case. Crl. M.P. No. 33/2021 was an application filed by the Special Public Prosecutor under Section 311 of the Code of Criminal Procedure (‘the Code’) praying that the Court may be pleased to summon and examine the Municipal Secretary of Perinthalmanna Municipality for proving the contents of a birth certificate, to prove the age of a victim in the trial of a case, registered under the provisions of Section 376 of the Indian Penal Code and the applicable provisions of the Protection of Children from Sexual Offences (POCSO) Act, 2012. 2. The Learned Sessions Judge considered the application and the objections raised by the learned Counsel for the accused and found that, in the absence of any specific provision in the POCSO Act and the Rules framed thereunder for determination of the age of victims of sexual offences, it is settled law that the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000(the ‘Juvenile Justice Act’) are applicable. The learned Judge relied on Jarnail Singh vs. State of Haryana, 2013 (7) SCC 263 , Abhilash vs. State of Kerala, 2019 (3) KHC 1002 and Maju @ Manu vs. State of Kerala, 2020 (3) KLJ 43 to reach that conclusion. The learned Judge thereafter held that going by the Kerala Juvenile Justice (Care and Protection of Children) Rules, 2014 framed under the Juvenile Justice Act, the first preference is to be given to a birth certificate issued by the local authority to prove the age of a child in conflict with the law. In other words, learned Judge concluded that since the provisions of the Juvenile Justice Act and the Rules framed thereunder would apply to determine the age of a victim under the POCSO Act, it would be essential for a just decision in the case to summon and examine the Municipal Secretary of the Municipality concerned to prove the age of the victim in terms of the birth certificate issued to the victim by the competent officer of that Municipality. This order is under challenge before me. 3. I have heard the learned Counsel for the petitioner and learned Public Prosecutor. 4. This order is under challenge before me. 3. I have heard the learned Counsel for the petitioner and learned Public Prosecutor. 4. The learned Counsel for the petitioner would submit that the petition filed by the Special Public Prosecutor under Section 311 of the Code is not maintainable in law. He would submit that, such a petition, if allowed, after commencement of the trial, would be permitting the prosecution to fill up a lacuna, which would adversely affect the accused. He submits that going by the law laid down by this Court in Thundiyil Muhammadali vs. State of Kerala, 2020 (4) KHC 64 considering Sections 173(5) and 207 of the Code, it is clear that the accused is entitled to a copy of all the documents that are relied on by the prosecution the accused is entitled to copies of all documents relied upon by the prosecution at the initial stage. In other words, he contends that no fresh document could be proved by examining witnesses, invoking the power of the Court under Section 311 of the Code. 5. I have considered the contentions raised by either side. Section 311 of Code reads as follows: “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.” 6. A bare reading of the provision suggests that the power under Section 311 can be exercised by the Court at any stage of any enquiry, trial or other proceedings under the Code. A reading of the provision suggests that the discretion either to exercise that power or not to exercise that power is entirely on the Court. It is also clear that the stage of the trial is not very relevant for determining whether the power under Section 311 of the Code should be exercised by the Court. In Mohanlal Shamji Soni vs. Union of India and Another, 1991 (Supp) 1 SCC 271 it was held that Section 311 is essentially in two parts. It is also clear that the stage of the trial is not very relevant for determining whether the power under Section 311 of the Code should be exercised by the Court. In Mohanlal Shamji Soni vs. Union of India and Another, 1991 (Supp) 1 SCC 271 it was held that Section 311 is essentially in two parts. The first part of the Section uses the word ‘may’ when it empowers Court to summon any person as a witness or to examine any person in attendance, though not summoned as a witness or to recall and re-examine any person already examined. It was held that the 2nd part, in fact, by using the word ‘shall’ imposes an obligation on the Court to summon and examine or to recall and re-examine any such person if his evidence appears to be essential to the just decision of the case. It is clear from the ratio of the aforesaid decision that the latter part of the Section imposes the duty on the Court to summon and examine or recall and re-examine any person if his evidence appears to be essential to the just decision of the case. In paragraph 17 of the judgment in Mohanlal Shamji Soni (supra), it was held:- 17. The law is clearly expounded in the case of Jamatraj Kewalji Govani (1967) 3 SCR 415 : AIR 1968 SC 178 : 1968 Cri. L.J. 231 (referred to above) wherein Hidayatullah, J. as he then was, while speaking for the bench about the unfettered discretionary power of the court as envisaged under Section 540 of the Code has stated thus: (SCR pp. 422-423) “It is difficult to limit the power under our Code to cases which involve something arising ex-improviso which no human ingenuity could foresee, in the course of the defence. Our Code does not make this a condition of the exercise of the power and it is not right to embark on judicial legislation. Cases that go far are of course not quite right. Indeed they could be decided on fact because it can always be seen whether the new matter is strictly necessary for a just decision and not intended to give an unfair advantage to one of the rival sides...... Cases that go far are of course not quite right. Indeed they could be decided on fact because it can always be seen whether the new matter is strictly necessary for a just decision and not intended to give an unfair advantage to one of the rival sides...... It would appear that in our criminal jurisdiction, statutory law confers a power in absolute terms to be exercised at any stage of the trial to summon a witness or examine one present in court or to recall a witness already examined, and makes this the duty and obligation of the court provided the just decision of the case demands it. In other words, where the court exercises the power under the second part, the inquiry cannot be whether the accused has brought anything suddenly or unexpectedly but whether the court is right in thinking that the new evidence is needed by it for a just decision of the case. If the court has acted without the requirements of a just decision, the action is open to criticism but if the court's action is supportable as being in aid of a just decision the action cannot be regarded as exceeding the jurisdiction.” 16......When any party to the proceedings points out the desirability of some evidence being taken, then the court has to exercise its power under this provision - either discretionary or mandatory - depending on the facts and circumstances of each case, having in view that the most paramount principle underlying this provision is to discover or to obtain proper proof of relevant facts in order to meet the requirements of justice. In this connection we would like to quote with approval the following views of Lumpkin, J. in Epps vs. S. [19 Ga 118 (Am)] which reads thus: “.......it is not only the right but the duty of the presiding judge to call the attention of the witness to it, whether it makes for or against the prosecution; his aim being neither to punish the innocent nor screen the guilty, but to administer the law correctly.....Counsel seek only for their client's success; but the judge must watch that justice triumphs.” As already noticed, the learned Sessions Judge has found in the impugned order that the determination of the age of the victim is crucial in the facts and circumstances of the case and for a just and proper decision in the matter, it is necessary to summon and examine the Municipal Secretary for proving the contents of the birth certificate issued by that Municipality. 7. The contention of the learned Counsel for the petitioner that the attempt of the prosecution is to fill up the lacuna in the prosecution case also cannot be accepted. In Union Territory of Dadra and Haveli vs. Fatehsinh Mohansinh Chauhan, 2006 (7) SCC 529 the Supreme Court held that calling a witness or re-examining a witness already examined for the purpose of finding out the truth in order to enable the court to arrive at a just decision of the case cannot be dubbed as “filling in a lacuna in the prosecution case” unless the facts and circumstances of the case make it apparent that the exercise of power by the court would result in causing serious prejudice to the accused resulting in miscarriage of justice. Applying the ratio of that decision to the facts of this case, I have no hesitation to hold that the contention of the learned Counsel for the petitioner that the filing of the petition by the learned Special Public Prosecutor before the Sessions Court is only an attempt to fill up some lacuna in the prosecution case is only to be rejected. 8. Thundiyil Muhammadali (supra), on which considerable reliance has been placed by the Learned Counsel for the petitioner, was a case where the question was whether a report under S.42(2) of the NDPS Act, was actually placed before the superior officer of PW-1 in that case. 8. Thundiyil Muhammadali (supra), on which considerable reliance has been placed by the Learned Counsel for the petitioner, was a case where the question was whether a report under S.42(2) of the NDPS Act, was actually placed before the superior officer of PW-1 in that case. In that context, noticing the contention of the counsel for the accused that the alleged report was not produced along with the final report and relying on Jahid Shaikh and Others vs. State of Gujarat and Another, (2011) 7 SCC 762 and Sathyan vs. State of Kerala, 2015 (1) KHC 269 this Court held that the accused is entitled a copy of all the documents that are relied on by the prosecution. However, the facts in Thundiyil Muhammadali (supra) stand on a completely different footing. That was clearly not a case of exercise of power under Section 311 of the Code. This Court cannot and will not apply the ratio of a Judgment completely divorced from the facts. 9. The issue is no longer res integra especially in the light of the recent judgment of the Supreme Court in V.N. Patil vs. K. Niranjan Kumar, (2021) 3 SCC 661. In that case, at the trial, an application was filed by the Prosecutor under Section 173(5) read with Section 311 of the Code for summoning the witnesses along with securing the relevant records to meet the ends of justice. This application, which was allowed by the Sessions Judge was challenged under Section 482 of the Code before the High Court. The High Court allowed that petition and set aside the order of the Sessions Court. The Supreme Court after referring to the scope of Section 311 of the Code and the decisions in Vijay Kumar vs. State of U.P. (2011) 8 SCC 136 , Mannan Shaikh vs. State of West Bengal, (2014) 13 SCC 59 , Ratanlal vs. Prahlad Jat, (2017) 9 SCC 340 and Swapan Kumar Chatterjee vs. CBI, (2019) 14 SCC 328 reversed the order of the High Court and restored the order of the Sessions Court. 10. As a result, I find no merit in this petition. I hold that the order passed by the learned Sessions Judge in Crl. M.P. No. 33/2021 in SC No. 6/2017 is perfectly legal and justified in law. No case is made out for the exercise of jurisdiction under Section 482 of the Code. 10. As a result, I find no merit in this petition. I hold that the order passed by the learned Sessions Judge in Crl. M.P. No. 33/2021 in SC No. 6/2017 is perfectly legal and justified in law. No case is made out for the exercise of jurisdiction under Section 482 of the Code. The petition fails and it is accordingly dismissed in limine.