Research › Search › Judgment

Karnataka High Court · body

2023 DIGILAW 196 (KAR)

Umesh B M v. State of Karnataka

2023-02-01

M.NAGAPRASANNA

body2023
JUDGMENT/ORDER 1. Heard Sri. Shiva Prasad S., learned counsel appearing for the petitioner and Smt. K.P. Yashodha, learned HCGP appearing for the respondent. 2. The petitioner is before this Court calling in question an order dtd. 6/8/2022 passed by the Hon'ble IX Additional District and Sessions Judge, Bengaluru rejecting the application of the petitioner filed under Sec. 311 of the Cr.P.C. seeking recalling of the PW-1 to PW-3 in S.C.No.354/2019, where the petitioner is facing the allegations for offence punishable under Sec. 302 of the Indian Penal Code (the 'IPC' for short). 3. Brief facts that leads the petitioner to this Court in the subject petition, as borne out from the pleadings, are as follows: The petitioner gets embroiled in crime No.137/2019 for the offence punishable under Sec. 302 of the IPC. The police after investigation filed a charge sheet for the aforesaid alleged offence under Sec. 302 of the IPC on 10/9/2019 and the case was then committed to the Court of Sessions on 4/10/2019. The issue in the lis is not with regard to the merit of the proceedings before the concerned Court in S.C.No.354/2019. It transpires that the evidence of the prosecution commenced on 4/11/2020 and after about two years, the petitioner files an application under Sec. 311 of the Cr.P.C. seeking recalling of PW-1 to PW-3, on the ground that they were short examined at the time when they were initially examined on 4/11/2020. Objections were filed by the prosecution to the said application on 27/7/2022. The Court on considering the application averments and the objections, rejects the application filed by the petitioner on 6/8/2022. It is that rejection that drives the petitioner to this Court in the subject petition. 4. The learned counsel appearing for the petitioner submits that the further cross-examination by recalling of PW-1 to PW-3 are imperative, in the light of the fact that the petitioner is facing trial for offences punishable under Sec. 302 of the IPC and if convicted would be a life sentence and therefore, the application was filed for seeking cross- examination by recalling the PW-1 to 3 and the concerned Court has rejected it by a perfunctory order. 5. 5. The learned HCGP appearing for the respondent would put up vehement opposition to the contents in the petition seeking to demonstrate that the petitioner has lost the opportunity, not once, but twice and the fact that mere change in the counsel would not enure to the benefit of the accused to claim recall of the witnesses. 6. I have given my anxious consideration to the submissions made by the respective counsel and have perused the material on record. 7. The afore-quoted facts are not in dispute with regard to the petitioner getting involved in crime No.137/2019 and the matter pending in S.C.No.354/2019. The issue is with regard to an application filed by the petitioner seeking recalling of PW-1 to PW-3 for further cross-examination on the ground that the counsel he had earlier, had partly cross-examined, at the time when the Court were closed due to Covid-19. The concerned Court rejects the application by the following order: "It is revealed that the IO has submitted the charge sheet against the accused for the offence punishable u/s 302 of IPC. This court after hearing both sides, has framed the charge against the accused who did not plead guilty but claims to be tried. Then, this court has issued summons to the witness and accordingly the prosecution has examined PW.1 to 5 and got marked Ex.P.1 to 7 and MO.1 to 6. The accused has taken time on the date on completion of chief examination of PW.1 and the same was granted to the accused then the accused has partly cross examined PW.1 on 10/11/2021 and on his request, further cross examination is deferred. Then PW.1 was fully cross examined on 1/12/2021. The accused has also fully cross examined PW.2 and 3 on 1/12/2021. Accordingly it is revealed that the accused has completed cross examination of PW.1 to 3 on 01-12- 2021. The prosecution has also examined two witnesses as PW.4 and 5. Then, this court has issued SS to CW.8 and 9, at that stage the accused have filed this application by requesting the court to recall PW.1 to 3 for further cross examination. The accused except stating that the present counsel has intended to eke-out some material points from the mouth of PW.1 to 3 has not stated any satisfactory reasons to recall the above witness. The accused except stating that the present counsel has intended to eke-out some material points from the mouth of PW.1 to 3 has not stated any satisfactory reasons to recall the above witness. When the accused after taking sufficient time has completed the cross examination of PW.1 to 3, then he is not entitled to recall the witnesses for further cross examination unless and until he makes out a strong ground to recall the witness. The accused in his application has not made out any grounds to recall PW.1 to 3 for further cross examination. The learned PP has relied upon a judgment rendered by Hon'ble High Court of Delhi in Crl.M.C.No.2107/2021 and Crl.M.A. 14182/2021 where their lordships have held that mere change of counsel would not suffice to recall witness to put certain suggestions in the manner, the new counsel desires. In the present case on hand, earlier one Sri.KNR Counsel was appearing on behalf of accused and then Sri.KM Counsel has filed memo of appearance on his behalf. When the earlier counsel has already cross examined the witnesses in detail, then the accused is not entitled to recall the witnesses for further cross examination after changing the advocate. Accordingly, the ratio laid down in the above judgment is aptly applicable to the present case on hand. Hence, I have come to the conclusion that the accused has not made out any ground to recall PW.1 to 3 for further cross examination. Accordingly, I proceed to pass the following. ORDER: The petition filed u/s 311 of Cr.P.C by the accused to recall PW.1 to 3 is rejected." 8. A perusal at the order of rejection would indicate that it is rejected on two grounds; 1) change in the counsel and 2) the counsel would want to fill up the lacuna in the examination-in-chief of PW-1 to PW-3 and therefore, the crossexamination is denied. The reason so rendered by the concerned Court albeit in part is rendered unsustainable, in the light of the judgment rendered by the Apex Court in the case of VARSHA GARG Vs. STATE OF MADHYA PRADESH, 2022 SCC Online SC 986. The Apex Court after considering the entire spectrum of the law has held as follows: " 31. Having clarified that the bar under Sec. 301 is inapplicable and that the appellant is well placed to pursue this appeal, we now examine Sec. 311 of CrPC. STATE OF MADHYA PRADESH, 2022 SCC Online SC 986. The Apex Court after considering the entire spectrum of the law has held as follows: " 31. Having clarified that the bar under Sec. 301 is inapplicable and that the appellant is well placed to pursue this appeal, we now examine Sec. 311 of CrPC. Sec. 311 provides that the Court "may": (i) Summon any person as a witness or to examine any person in attendance, though not summoned as a witness; and (ii) Recall and re-examine any person who has already been examined. 32. This power can be exercised at any stage of any inquiry, trial or other proceeding under the CrPC. The latter part of Sec. 311 states that the Court "shall" summon and examine or recall and reexamine any such person "if his evidence appears to the Court to be essential to the just decision of the case". Sec. 311 contains a power upon the Court in broad terms. The statutory provision must be read purposively, to achieve the intent of the statute to aid in the discovery of truth. 33. The first part of the statutory provision which uses the expression "may" postulates that the power can be exercised at any stage of an inquiry, trial or other proceeding. The latter part of the provision mandates the recall of a witness by the Court as it uses the expression "shall summon and examine or recall and reexamine any such person if his evidence appears to it to be essential to the just decision of the case". Essentiality of the evidence of the person who is to be examined coupled with the need for the just decision of the case constitute the touchstone which must guide the decision of the Court. The first part of the statutory provision is discretionary while the latter part is obligatory. 34. A two judge Bench of this Court in Mohanlal Shamji Soni (supra) while dealing with pari materia provisions of Sec. 540 of the Criminal Code of Procedure 1898 observed: "16. The second part of Sec. 540 as pointed out albeit imposes upon the court an obligation of summoning or recalling and re-examining any witness and the only condition prescribed is that the evidence sought to be obtained must be essential to the just decision of the case. The second part of Sec. 540 as pointed out albeit imposes upon the court an obligation of summoning or recalling and re-examining any witness and the only condition prescribed is that the evidence sought to be obtained must be essential to the just decision of the case. 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." 35. Justice S Ratnavel Pandian, speaking for the two judge Bench, noted that the power is couched in the widest possible terms and calls for no limitation, either with regard to the stage at which it can be exercised or the manner of its exercise. It is only circumscribed by the principle that the "evidence to be obtained should appear to the court essential to a just decision of the case by getting at the truth by all lawful means." In that context the Court observed: "18 ...Therefore, it should be borne in mind that the aid of the Sec. should be invoked only with the object of discovering relevant facts or obtaining proper proof of such facts for a just decision of the case and it must be used judicially and not capriciously or arbitrarily because any improper or capricious exercise of the power may lead to undesirable results. Further it is incumbent that due care should be taken by the court while exercising the power under this Sec. and it should not be used for filling up the lacuna left by the prosecution or by 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 rival side and further the additional evidence should not be received as a disguise for a retrial or to change the nature of the case against either of the parties." 36. Summing up the position as it obtained from various decisions of this Court, namely Rameshwar Dayal v. State of U.P., State of W.B. v. Tulsidas Mundhra, Jamatraj Kewalji Govani v. State of Maharashtra, Masalti v. State of U.P., Rajeswar Prosad Misra v. State of W.B. and R.B. Mithani v. State of Maharashtra, the Court held: "27. The principle of law that emerges from the views expressed by this Court in the above decisions is that the criminal court has ample power to summon any person as a witness or recall and re-examine any such person even if the evidence on both sides is closed and the jurisdiction of the court must obviously be dictated by exigency of the situation, and fair play and good sense appear to be the only safe guides and that only the requirements of justice command the examination of any person which would depend on the facts and circumstances of each case." 37. The power of the court is not constrained by the closure of evidence. Therefore, it is amply clear from the above discussion that the broad powers under Sec. 311 are to be governed by the requirement of justice. The power must be exercised wherever the court finds that any evidence is essential for the just decision of the case. The statutory provision goes to emphasise that the court is not a hapless bystander in the derailment of justice. Quite to the contrary, the court has a vital role to discharge in ensuring that the cause of discovering truth as an aid in the realization of justice is manifest. 38. Sec. 91 CrPC empowers inter alia any Court to issue summons to a person in whose possession or power a document or thing is believed to be, where it considers the production of the said document or thing necessary or desirable for the purpose of any investigation, inquiry, trial or other proceeding under the CrPC. 39. Sec. 91 forms part of Chapter VII of CrPC which is titled "Processes to Compel the Production of Things". Chapter XVI of the CrPC titled "Commencement of Proceedings before Magistrates" includes Sec. 207 which provides for the supply to the accused of a copy of the police report and other documents in any case where the proceeding has been instituted on a police report.25 Both operate in distinct spheres. 40. Chapter XVI of the CrPC titled "Commencement of Proceedings before Magistrates" includes Sec. 207 which provides for the supply to the accused of a copy of the police report and other documents in any case where the proceeding has been instituted on a police report.25 Both operate in distinct spheres. 40. In the present case, the application of the prosecution for the production of the decoding registers is relatable to the provisions of Sec. 91 CrPC. The decoding registers are sought to be produced through the representatives of the cellular companies in whose custody or possession they are found. The decoding registers are a relevant piece of evidence to establish the co-relationship between the location of the accused and the cell phone tower. The reasons which weighed with the High Court and the Trial Court in dismissing the application are extraneous to the power which is conferred under Sec. 91 on the one hand and Sec. 311 on the other. The summons to produce a document or other thing under Sec. 91 can be issued where the Court finds that the production of the document or thing "is necessary or desirable for the purpose of any investigation, trial or other proceeding" under the CrPC. As already noted earlier, the power under Sec. 311 to summon a witness is conditioned by the requirement that the evidence of the person who is sought to be summoned appears to the Court to be essential to the just decision of the case. 41. PWs 33, 41, 43 and 48, who were the nodal officers of Idea, Airtel, Reliance and Vodafone have already been examined. During the examination of PW-41, the nodal officer of Airtel, the witness specifically deposed during the course of examination that: "2. Call detail of mobile number XXXXXXXXXX, which has 134 pages is Exhibit P-104, I sent the same detail of the call to the police. Each page of the same has seal of Bharti Airtel on the same. Call detail contains date and time wise detail of call and short message services made/sent and received by the customer. Additionally, location of the mobile number is available in code number along with the time of the call or message for which call detail is provided. Each page of the same has seal of Bharti Airtel on the same. Call detail contains date and time wise detail of call and short message services made/sent and received by the customer. Additionally, location of the mobile number is available in code number along with the time of the call or message for which call detail is provided. Location of the call made by the mobile number in certain time has been shown with codes, I cannot state name of the location today by seeing the code. Location can be stated after decoding the same. We have coding chart for location, by seeing the same location can be started. I don't have aforesaid chart along with me. Aforesaid chart is available in the office." (emphasis supplied) 42. The relevance of the decoding register clearly emerges from the above statement of PW-41. Hence, the effort of the prosecution to produce the decoding register which is a crucial and vital piece of evidence ought not to have been obstructed. In terms of the provisions of Sec. 311, the summoning of the witness for the purpose of producing the decoding register was essential for the just decision of the case. 43. Having dealt with the satisfaction of the requirements of Sec. 311, we deal with the objection of the respondents that the application should not be allowed as it will lead to filling in the lacunae of the prosecution's case. However, even the said reason cannot be an absolute bar to allowing an application under Sec. 311. 44. In the decision in Zahira Habibullah Sheikh (5) v. State of Gujarat, which was more recently reiterated in Godrej Pacific Tech. Ltd. v. Computer Joint India Ltd., the Court specifically dealt with this objection and observed that the resultant filling of loopholes on account of allowing an application under Sec. 311 is merely a subsidiary factor and the Court's determination of the application should only be based on the test of the essentiality of the evidence. It noted that: "28. The court is not empowered under the provisions of the Code to compel either the prosecution or the defence to examine any particular witness or witnesses on their side. This must be left to the parties. But in weighing the evidence, the court can take note of the fact that the best available evidence has not been given, and can draw an adverse inference. This must be left to the parties. But in weighing the evidence, the court can take note of the fact that the best available evidence has not been given, and can draw an adverse inference. The court will often have to depend on intercepted allegations made by the parties, or on inconclusive inference from facts elicited in the evidence. In such cases, the court has to act under the second part of the Sec. . Sometimes the examination of witnesses as directed by the court may result in what is thought to be "filling of loopholes". That is purely a subsidiary factor and cannot be taken into account. Whether the new evidence is essential or not must of course depend on the facts of each case, and has to be determined by the Presiding Judge. (emphasis supplied) 45. The right of the accused to a fair trial is constitutionally protected under Article 21. However, in Mina Lalita Baruwa (supra), while reiterating Rajendra Prasad (supra), the Court observed that it is the duty of the criminal court to allow the prosecution to correct an error in interest of justice. In Rajendra Prasad (supra), the Court had held that: "8. Lacuna in the prosecution must be understood as the inherent weakness or a latent wedge in the matrix of the prosecution case. The advantage of it should normally go to the accused in the trial of the case, but an oversight in the management of the prosecution cannot be treated as irreparable lacuna. No party in a trial can be foreclosed from correcting errors. If proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the court should be magnanimous in permitting such mistakes to be rectified. After all, function of the criminal court is administration of criminal justice and not to count errors committed by the parties or to find out and declare who among the parties performed better." (emphasis supplied) 46. In the present case, the importance of the decoding registers was raised in the examination of PW-41. After all, function of the criminal court is administration of criminal justice and not to count errors committed by the parties or to find out and declare who among the parties performed better." (emphasis supplied) 46. In the present case, the importance of the decoding registers was raised in the examination of PW-41. Accordingly, the decoding registers merely being additional documents required to be able to appreciate the existing evidence in form of the call details which are already on record but use codes to signify the location of accused, a crucial detail, which can be decoded only through the decoding registers, the right of the accused to a fair trial is not prejudiced. The production of the decoding registers fits into the requirement of being relevant material which was not brought on record due to inadvertence. 47. Finally, we also briefly deal with the objection of the respondents regarding the stage at which the application under Sec. 311 was filed. The respondents have placed reliance on Swapan Kumar (supra), a two judge Bench decision of this Court, to argue that the application should not be allowed as it has been made at a belated stage. The Court in Swapan Kumar (supra) observed: "11. It is well settled that the power conferred under Sec. 311 should be invoked by the court only to meet the ends of justice. The power is to be exercised only for strong and valid reasons and it should be exercised with great caution and circumspection. The court has wide power under this Sec. to even recall witnesses for reexamination or further examination, necessary in the interest of justice, but the same has to be exercised after taking into consideration the facts and circumstances of each case. The power under this provision shall not be exercised if the court is of the view that the application has been filed as an abuse of the process of law. 12. Where the prosecution evidence has been closed long back and the reasons for non-examination of the witness earlier are not satisfactory, the summoning of the witness at belated stage would cause great prejudice to the accused and should not be allowed. Similarly, the court should not encourage the filing of successive applications for recall of a witness under this provision." 48. Similarly, the court should not encourage the filing of successive applications for recall of a witness under this provision." 48. In the present appeal, the argument that the application was filed after the closure of the evidence of the prosecution is manifestly erroneous. As already noted above, the closure of the evidence of the prosecution took place after the application for the production of the decoding register and for summoning of the witness under Sec. 311 was dismissed. Though the dismissal of the application and the closure of the prosecution evidence both took place on 13/11/2021, the application by the prosecution had been filed on 15/3/2021 nearly eight months earlier. As a matter of fact, another witness for the prosecution, Rajesh Kumar Singh, was also released after examination and crossexamination on the same day as recorded in the order dtd. 13/11/2021 of the trial court. 49. The Court is vested with a broad and wholesome power, in terms of Sec. 311 of the CrPC, to summon and examine or recall and reexamine any material witness at any stage and the closing of prosecution evidence is not an absolute bar. This Court in Zahira Habibulla H. Sheikh (supra) while dealing with the prayers for adducing additional evidence under Sec. 391 CrPC at the appellate stage, along with a prayer for examination of witnesses under Sec. 311 CrPC explained the role of the court, in the following terms: "43. The courts have to take a participatory role in a trial. They are not expected to be tape recorders to record whatever is being stated by the witnesses. Sec. 311 of the Code and Sec. 165 of the Evidence Act confer vast and wide powers on presiding officers of court to elicit all necessary materials by playing an active role in the evidence-collecting process. They have to monitor the proceedings in aid of justice in a manner that something, which is not relevant, is not unnecessarily brought into record. Even if the prosecutor is remiss in some ways, it can control the proceedings effectively so that the ultimate objective i.e. truth is arrived at. This becomes more necessary where the court has reasons to believe that the prosecuting agency or the prosecutor is not acting in the requisite manner. Even if the prosecutor is remiss in some ways, it can control the proceedings effectively so that the ultimate objective i.e. truth is arrived at. This becomes more necessary where the court has reasons to believe that the prosecuting agency or the prosecutor is not acting in the requisite manner. The court cannot afford to be wishfully or pretend to be blissfully ignorant or oblivious to such serious pitfalls or dereliction of duty on the part of the prosecuting agency. The prosecutor who does not act fairly and acts more like a counsel for the defence is a liability to the fair judicial system, and courts could not also play into the hands of such prosecuting agency showing indifference or adopting an attitude of total aloofness." (emphasis supplied) 50. Further, in Zahira Habibullah Sheikh (5) (supra), the Court reiterated the extent of powers under Sec. 311 and held that: "27. 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. which applies to all proceedings, enquiries 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 any 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." (emphasis supplied) 51. The Court while reiterating the principle enunciated in Mohanlal Shamji Soni (supra) stressed upon the wide ambit of Sec. 311 which allows the power to be exercised at any stage and held that: "44. The Court while reiterating the principle enunciated in Mohanlal Shamji Soni (supra) stressed upon the wide ambit of Sec. 311 which allows the power to be exercised at any stage and held that: "44. The power of the court under Sec. 165 of the Evidence Act is in a way complementary to its power under Sec. 311 of the Code. The Sec. consists of two parts i.e. : (i) giving a discretion to the court to examine the witness at any stage, and (ii) the mandatory portion which compels the court to examine a witness if his evidence appears to be essential to the just decision of the court. Though the discretion given to the court is very wide, the very width requires a corresponding caution. In Mohanlal v. Union of India this Court has observed, while considering the scope and ambit of Sec. 311, that the very usage of the words such as, "any court", "at any stage", or "any enquiry or trial or other proceedings", "any person" and "any such person" clearly spells out that the Sec. has expressed in the widest-possible terms and do not limit the discretion of the court in any way. However, as noted above, the very width requires a corresponding caution that the discretionary powers should be invoked as the exigencies of justice require and exercised judicially with circumspection and consistently with the provisions of the Code. The second part of the Sec. does not allow any discretion but obligates and binds the court to take necessary steps if the fresh evidence to be obtained is essential to the just decision of the case, "essential" to an active and alert mind and not to one which is bent to abandon or abdicate. Object of the Sec. is to enable the court to arrive at the truth irrespective of the fact that the prosecution or the defence has failed to produce some evidence which is necessary for a just and proper disposal of the case. The power is exercised and the evidence is examined neither to help the prosecution nor the defence, if the court feels that there is necessity to act in terms of Sec. 311 but only to subserve the cause of justice and public interest. It is done with an object of getting the evidence in aid of a just decision and to uphold the truth." (emphasis supplied) 9. It is done with an object of getting the evidence in aid of a just decision and to uphold the truth." (emphasis supplied) 9. In the light of undisputed fact that the learned counsel appearing for the petitioner had partly cross-examined PW-1 to PW-3, an opportunity ought to have been afforded to the petitioner by recalling PW-1 to PW-3. The order impugned in the petition would run foul of the very soul of the provision, i.e. Sec. 311 of the Cr.P.C., as interpreted by the Apex Court, in the aforesaid judgment. For the aforesaid reasons, the following: ORDER i. The Criminal Petition is allowed. ii. The Order dtd. 6/8/2022 passed by the Hon'ble IX Additional District and Sessions Judge, Bengaluru stands quashed. iii. The application filed by the petitioner under Sec. 311 of the Cr.P.C. is allowed. iv. The concerned Court shall fix a date for crossexamination of PW-1 to PW-3 and the said date shall be the only date for crossexamination of the said witnesses. v. In the event, the petitioner would not crossexamine on the date fixed by the concerned Court, the concerned Court shall be at liberty to pass appropriate orders and regulate further procedure.