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Andhra High Court · body

2022 DIGILAW 856 (AP)

Mogili Ajay v. State of A. P.

2022-09-09

NINALA JAYASURYA

body2022
JUDGMENT 1. The present Criminal Petition is filed seeking to quash the Order dtd. 29/4/2022 passed in Criminal Miscellaneous Petition No.1010 of 2022 in C.C.No.3042 of 2021 on the file of the Court of Special Judicial Magistrate of First Class (P&E)-cum-VIII Additional Metropolitan Magistrate & VIII Additional Junior Civil Judge, Visakhapatnam. 2. The petitioners herein are accused 4 to 6 in the above referred Calendar Case, which was registered for the offence under Sec. 34(a) of A.P.Excise(Amendment) Act, 2020. They filed the above mentioned Miscellaneous Petition seeking to recall P.Ws.1 to 4 as the counsel for the petitioners could not cross examine the said witnesses. The respondent-State opposed the said petition and by the impugned Order, the same was dismissed. Hence, the present quash petition. 3. The learned counsel for the petitioners submits that the counsel for the petitioners/accused 4 to 6 appearing in the Trial Court was suffering from ligament injuries and therefore, he could not attend the Court, as a result of which, cross examination of P.Ws.1 to 4 could not be conducted. The learned counsel submits that in fact the prosecution witnesses were not present on several dates, though the petitioners' counsel was ready to examine them and ignoring the said aspect, the learned Magistrate went wrong in observing that no cross examination was done by the petitioners. Be that as it may. The learned counsel would submit that cross examination of the above said witnesses is very much essential and the learned Trial Court without appreciating the matter in a proper perspective, went wrong in dismissing the petition by making certain observations, contrary to the material on record. He submits that the petitioners/accused are denied a fair opportunity to establish their case by cross examining the witnesses and unless the witnesses are cross examined, the petitioners would not be in a position to establish their innocence. 4. Relying on the decisions of the Hon'ble Supreme Court in P.Sanjeeva Rao v. State of Andhra Pradesh, (2012) 7 SCC 56 . State represented by the Deputy Superintendent of Police v. Tr. N.Seenivasagan, 2021 SCC OnLine SC 212. and a decision of a learned Single Judge of this Court in Criminal Petition No.6091 of 2020 dtd. 30/12/2020, the learned counsel submits that the order under challenge is liable to be set aside. 5. State represented by the Deputy Superintendent of Police v. Tr. N.Seenivasagan, 2021 SCC OnLine SC 212. and a decision of a learned Single Judge of this Court in Criminal Petition No.6091 of 2020 dtd. 30/12/2020, the learned counsel submits that the order under challenge is liable to be set aside. 5. The learned Assistant Public Prosecutor appearing for the respondent-State, on the other hand, submits that the Order passed by the learned Trial Court contains cogent reasons, in accordance with Law and the same warrants no interference by this Court. He accordingly prays to dismiss the Criminal Petition. 6. This Court has considered the submissions made by the learned counsel for both sides and perused the material on record. 7. In P.Sanjeeva Rao's case referred to supra, the Hon'ble Supreme Court was dealing with an appeal against the order of High Court in a Criminal Revision Petition, confirming the order passed by the Trial Judge. In the said case, applications were filed under Ss. 242 and 311 Cr.P.C., to recall prosecution witnesses for cross examination. The prosecution opposed the said applications, inter alia, contending that recall of P.Ws.1 and 2 for cross examination more than 3 1/2 years, after they had been examined in relation to an incident that had taken place seven years back was bound to cause prejudice to the prosecution. The petitions were dismissed. While setting the said order as confirmed by the High Court aside, the Hon'ble Supreme Court at para No.12, referred to the observations made in Hanuman Ram v. The State of Rajasthan & Others, (2008) 15 SCC 652 , the relevant portion of which, may be extracted for ready reference: "12.......... The object underlying Sec. 311 of the Code is that there may not be failure of justice on account of mistake of either party in bringing the valuable evidence on record or leaving ambiguity in the statements of the witnesses examined from either side. The determinative factor is whether it is essential to the just decision of the case. The sec. is not limited only for the benefit of the accused, and it will not be an improper exercise of the powers of the Court to summon a witness under the Sec. merely because the evidence supports the case of the prosecution and not that of the accused. The sec. is a general sec. The sec. is not limited only for the benefit of the accused, and it will not be an improper exercise of the powers of the Court to summon a witness under the Sec. merely because the evidence supports the case of the prosecution and not that of the accused. The sec. is a general sec. which applies to all proceedings, enquires and trials under the Code and empowers the Magistrate to issue summons to any witness at any stage of such proceedings, trial or enquiry. In Sec. 311 the significant expression that occurs is "at any stage of inquiry or trial or other proceeding under this Code". It is, however, to be borne in mind that whereas the sec. confers a very wide power on the Court on summoning witnesses, the discretion conferred is to be exercised judiciously, as the wider the power the greater is the necessity for application of judicial mind." 8. In Tr.N.Seenivasagan's case referred to supra, the Hon'ble Supreme Court was dealing with a matter wherein the miscellaneous petition filed by the prosecution under Sec. 311 of Cr.P.C., for recalling some witnesses dismissed by the Trial Court was confirmed by the High Court. The Hon'ble Supreme Court at para No.15, inter alia, held as follows: "15. 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 Sec. 311 Cr.P.C., 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..........." 9. Thus, it is clear from the expression of the Hon'ble Supreme Court that while dealing with an application under Sec. 311 Cr.P.C., the Court is required to exercise its discretion judiciously and not capriciously or arbitrarily and the said power must be invoked to meet the ends of justice. 10. Thus, it is clear from the expression of the Hon'ble Supreme Court that while dealing with an application under Sec. 311 Cr.P.C., the Court is required to exercise its discretion judiciously and not capriciously or arbitrarily and the said power must be invoked to meet the ends of justice. 10. As seen from the various docket proceedings, it would appear that though the petitioners were present on several occasions, the prosecution witnesses were not present to enable their cross examination. In such circumstances, the learned Trial Court is not justified in finding fault with the petitioners, more particularly, when their counsel could not attend the Court due to the reasons explained in the petition. The Order of the learned Magistrate is therefore liable to be set aside. 11. In Crl.Petition No.6091 of 2020 on which reliance is placed, a learned Judge of this Court, set aside the order passed by the Trial Court in rejecting an application filed under Sec. 311 Cr.P.C., to recall the witnesses therein. In the said case, as the Senior Counsel was held up before the other Court and could not attend for cross examination of the prosecution witnesses, the evidence was closed. Seeking to recall the witnesses, a petition was filed and the same was dismissed. The learned Judge quashed the said order while holding, inter alia, as follows: "Cross examination of a witness in a criminal case is an important part of trial and it is only means to elicit truth from the witness to prove the innocence of the accused. If, such right is denied, the petitioners/accused will be put to serious loss and it amounts to denial of fair trial. If, it is purely on account of negligence of the accused, certainly such denial is justifiable. The witness was absent on several occasions as stated above and on account of absence of the witness P.W.17, cross examination could not be completed. Merely because he is an official witness, the Rules of the Court cannot be relaxed and he is on par with any other witness. Therefore, denial of an opportunity to cross-examine the witness would cause serious prejudice to the rights of the petitioners/accused. Merely because he is an official witness, the Rules of the Court cannot be relaxed and he is on par with any other witness. Therefore, denial of an opportunity to cross-examine the witness would cause serious prejudice to the rights of the petitioners/accused. According to Sec. 311 Cr.P.C., 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 be essential to the just decision of the case. Sec. 311 Cr.P.C contains two limbs. The first limb is discretion of the Court and the second limb does not confer any discretion and it is obligatory for the Court to summon, recall and re-examine a witness, if the Court finds that the evidence of the proposed witness is necessary to decide the real controversy between the parties, effectively. But, here, the Trial Court denied the opportunity to cross-examine the witness and it is against the principles of fair trial, since, fair trial is a fundamental right guaranteed under Article 21 of the Constitution of India." 12. At this juncture, it may be appropriate to refer to some of the principles laid down by the Hon'ble Supreme Court in AG v. Shiv Kumar Yadav and Others, AIR 2015 SC 3501 . which are to be kept in mind for exercising power under Sec. 311 Cr.P.C., and the relevant to the present context are: a) The exercise of widest discretionary power Under Sec. 311 Code of Criminal Procedure should ensure that the judgment should not be rendered on inchoate, inconclusive and speculative presentation of facts, as thereby the ends of justice would be defeated; b) The wide discretionary power should be exercised judiciously and not arbitrarily; c) The object of Sec. 311 of Code of Criminal Procedure simultaneously imposes a duty on the court to determine the truth and to render a just decision. 13. In the light of the above legal position, the learned Trial Court ought to have allowed the petition to recall the witnesses to enable the petitioners/accused to adduce evidence and meet the requirements of a fair trial. 13. In the light of the above legal position, the learned Trial Court ought to have allowed the petition to recall the witnesses to enable the petitioners/accused to adduce evidence and meet the requirements of a fair trial. As the petitioners are denied the opportunity of cross examination, the order of the Trial Court cannot be sustained in the light of the legal position referred to supra. 14. Accordingly, the impugned Order dtd. 29/4/2022 in Criminal Miscellaneous Petition No.1010 of 2022 in C.C.No.3042 of 2021 on the file of the Court of Special Judicial First Class Magistrate (P&E)-cum-VIII Additional Junior Civil Judge, Visakhapatnam, is set aside and the Criminal Petition is allowed with a direction to the Trial Court to fix a specific date for appearance of P.Ws.1 to 4 and afford an opportunity to the petitioners/accused to cross examine the said witness. The petitioners/A4 to A6 shall proceed with the cross examination of the said witness on the date fixed by the learned Trial Court, without seeking any adjournment. Miscellaneous Petitions, if any, pending in this Criminal Petition shall stand closed.