Anoop P.S. v. State of Kerala and others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V THURSDAY, THE 15[TH] DAY OF JUNE 2023 / 25TH JYAISHTA, 1945`** ## **`CRL.MC NO. 5107 OF 2019`** ## **`CC 49/2012 OF CHIEF JUDICIAL MAGISTRATE, ERNAKULAM`** ## **`PETITIONER/FIRST ACCUSED:`** ``` ANOOPP.S., AGED30YEARS S/O.SUBRAMANIAN,PALLIPRAYIL(H),MUNNAKARPILLY, KARUKUTTY,ANGAMALY ``` ``` BYADVLEOGEORGE ``` ## **`RESPONDENTS/STATE AND ACCUSED 2&3:`** ``` 1STATEOFKERALA, REPRESENTEDBYPUBLICPROSECUTOR,HIGHCOURTOF KERALA,ERNAKULAM-682031 2JIJO@SASI, S/O.SUBRAMANIAN,AYYEDATHU(H),KATTANAPPILLY, MELOOR,KALADY-680307 3ANOOP, S/O.PAULOSE,ATTOKKARAN(H),KOTTAMAM, KALADY,ANGAMALY-680305 ``` ``` SRI.M.PPRASHANTH,PUBLICPROSECUTOR ``` ``` THISCRIMINALMISC.CASEHAVINGCOMEUPFORADMISSION ON15.06.2023,THECOURTONTHESAMEDAYPASSEDTHE FOLLOWING: ``` Crl.M.C No.5107 of 2019 2 ## **ORDER** This petition is filed seeking to quash an order dated 2.7.2019 in CMP No.438/2019 in CC No.49/2012 on the file of the Chief Judicial Magistrate, Ernakulam. By the order impugned, the learned Magistrate has allowed the application under Section 311 of the Cr.P.C and has reopened the evidence to examine an additional witness. 2. It appears from the records that the petitioner herein, who is the 1[st] accused, was being prosecuted for having committed offense punishable under Sections 465, 468, 471, and 417 r/w Section 34 IPC. Prosecution proceedings were initiated based on a report submitted by the Upper Division Clerk of the Judicial First Class Magistrate III, Ernakulam. 3. The crux of the allegation is that the petitioner herein had produced a forged license before the learned Judicial First Class Magistrate III, Ernakulam, and that the accused Nos.2 and 3 in the aforesaid crime aided and abetted the 1[st] accused in procuring the license. 4. The petitioner contends that the prosecution had examined PWs 1 to 6 on their side and had marked and exhibited Exts.P1 to P7. The prosecution evidence was closed on 1.11.2017 and thereafter, the incriminating materials arising out of the evidence was put to the accused Crl.M.C No.5107 of 2019 3 under Section 313 of the Cr.P.C. The petitioner submitted before court that he had no evidence to adduce on his side. The case was posted for hearing on 29.5.2018, 3.7.2018, 14.8.2018, 25.9.2018, 5.12.2018, 10.12.2018, 29.12.2018, and 7.2.2019. On 7.2.2019, the petitioner was heard at length and the case was posted for arguments on the side of the prosecution. It was at that juncture, that C.M.P.No.438/2019 was filed under Section 311 of the Code seeking to reopen the evidence and to permit the prosecution to produce/call for additional documents and examine additional witnesses. The said application was allowed by the learned Magistrate by the impugned order. The said order is under challenge in this petition. 5. The learned counsel appearing for the petitioner would refer to the application submitted by the DDP and it is submitted that the application was filed on 19.2.2019 in respect of a case which was charge-sheeted in 2012. According to the learned counsel, the application was filed after the entire argument was completed on the side of the defence. He would refer to the order passed by the learned Magistrate and it is submitted that the learned Magistrate was also of the opinion that the application is highly belated and a vigilant prosecution ought to have taken steps to summon the witness and produce the documents at the appropriate time. It is further submitted that the request of the learned Crl.M.C No.5107 of 2019 4 Public Prosecutor was to summon the Regional Transport Officer, Meenampakkom, Chennai, and to produce the address details and the office copy of the license No. 9863/2006 issued from the RTO office. Relying on the law laid down in **Manju Devi v. State of Rajasthan[1]** , it is submitted that though the Code has conferred a very wide discretionary power upon the court in this respect, such a discretion has to be exercised judicially and not arbitrarily. 6. The learned Public Prosecutor has opposed the submissions advanced. It is submitted that it was only much later that the Investigating Officer had reported that he had received an email from the RTO office, Meenampakkom, and it is for the said reason that the application was filed. 7. I have considered the submissions advanced, and have gone through the records. I find that the Final Report in the instant case was filed before the learned Magistrate on 22.2.2012. The specific allegation is that the petitioner had produced a forged license before the learned Magistrate when he was being tried in ST No.8888 of 2011. ST No. 8888 of 2011 appears to be a traffic offence. 8. In **Manju Devi** (supra), the Apex Court had occasion to observe that it hardly needs any emphasis that the discretionary powers like those under Section 311 CrPC are essentially intended to ensure that every > 1 (2019) 4 SC 289 Crl.M.C No.5107 of 2019 5 necessary and appropriate measure is taken by the Court to keep the record straight and to clear any ambiguity insofar as the evidence is concerned as also to ensure that no prejudice is caused to anyone. 9. Section 311 of the Cr.P.C empowers the court to summon a material witness or to examine a person present at “any stage” of “any enquiry”, or “trial”, or “any other proceedings” under the Code, or to summon any person as a witness, or to recall and re-examine any person who has already been examined if his evidence appears to be essential to the arrival of a just decision of the case. Undoubtedly, the Code has conferred a very wide discretionary power upon the court in this respect, but such a discretion is to be exercised judiciously and not arbitrarily. The power of the court in this context is very wide, and in exercise of the same, it may summon any person as a witness at any stage of the trial or other proceedings. It has been held that the 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 Section 311 CrPC must not be allowed only to fill up a lacuna in the case of the prosecution, or of the defense, or to the disadvantage of the accused, or to cause serious prejudice to the defense of the accused, or to give an unfair advantage to the opposite party. Further, the additional evidence must not be received as a disguise for retrial or to change the nature of the case Crl.M.C No.5107 of 2019 6 against either of the parties. Such a power must be exercised, provided that the evidence that is likely to be tendered by a witness is germane to the issue involved. An opportunity for rebuttal, however, must be given to the other party. The power conferred under Section 311 CrPC must, therefore, be invoked by the court only in order to meet the ends of justice for strong and valid reasons, and the same must be exercised with great caution and circumspection. The very use of words such as “any court”, “at any stage”, or “or any enquiry, trial or other proceedings”, “any person” and “any such person” clearly spells out that the provisions of this section have been expressed in the widest possible terms, and do not limit the discretion of the court in any way. There is thus no escape if the fresh evidence is essential to the just decision of the case. The determinative factor should therefore be whether the summoning/recalling of the said witness is, in fact, essential to the just decision of the case. 10. I find from Annexure A1 final report that six witnesses were cited by the prosecution to bring home the charge under Section 465, 468, 471 r/w Section 34 of the IPC. PW1 is the Civil Police officer who was the attestor to the seizure mahazar, PW2 is the Clerk in the office of the JFMC-II, Ernakulam, who had given the FI statement, PW3 is the Clerk, PW4 is the Sub Inspector of Police, Central Police Station, examined to prove the registration of the FIR, PW5 is the person who attested the Crl.M.C No.5107 of 2019 7 license, and PW6 is the Investigating Officer. The final report would reveal that no material was collected by the prosecution to prove that the petitioner had committed the offense of forgery. In order to bring home the offense, the prosecution ought to have collected materials to substantiate that the petitioner had made a forged document, that such document was with the intention to a) cause damage or injury to (i) the public or (ii) any person or b) to support any claim or title or c) to cause any person to part with property or d) to cause any person to enter into an express or implied contract, or, e) to commit fraud or that fraud may be committed. 11. In **Sheila Sebastian v. R. Jawaharaj, (** 2018) 7 SCC 581], it was held by the Apex Court that a charge of forgery cannot be imposed on a person who is not the maker of the same. As held in a plethora of cases, the making of a document is different than causing it to be made. As Explanation 2 to Section 464 further clarifies that for constituting an offense under Section 464, it is imperative that a false document is made and the Crl.M.C No.5107 of 2019 8 accused person is the maker of the same, otherwise, the accused person is not liable for the offense of forgery. It is not seen from the final report that any attempt was made by the prosecution to collect any materials whatsoever to substantiate that the petitioner herein had forged a document and that he had fraudulently or dishonestly used as genuine any document which he knows or has reason to believe to be a forged document. It is too late in the day to summon a Clerk from the Meenambakkam RTO Office to bring on record the address details mentioned in the copy of license No.9863 of 2006 issued from the office of the RTO. It is also not known how and in what manner the prosecution would succeed in bringing home the offense under Section 465, 468, 471, and Section 417 of the IPC by summoning the said officer. As held by the Apex Court, an application under Section 311 CrPC must not be allowed only to fill up a lacuna in the case of the prosecution, or to the disadvantage of the accused, or to cause serious prejudice to the defense of the accused, or to give an unfair advantage to the opposite party. Further, the additional evidence must not be received as a disguise for retrial or to change the nature of the case against either of the parties. Such a power must be exercised, provided that the evidence that is likely to be tendered by a witness is germane to the issue involved. It doesn’t appear from the order that the learned Magistrate had occasion to consider Crl.M.C No.5107 of 2019 9 the above aspects while allowing the application. Though a wide power has been conferred on the Magistrate by the Code, the said power has to be exercised judiciously and not arbitrarily. In view of the discussion above, I am of the considered opinion that the impugned order cannot be sustained under the law. Annexure 4 order is set aside. The learned Magistrate is directed to expedite the proceedings and take the matter to its logical conclusion at the earliest. Sd/- **RAJA VIJAYARAGHAVAN V, JUDGE** IAP Crl.M.C No.5107 of 2019 10 ## **`APPENDIX OF CRL.MC 5107/2019`** ``` PETITIONER’SANNEXURES: ``` ``` ANNEXURE1 ``` ``` TRUECOPYOFTHEFINALREPORTINCRIME NO.542/2012OFCENTRALPOLICESTATION ERNAKULAM. ``` ``` ANNEXURE2TRUECOPYOFCMPNO.438OF2019IN C.C.NO.49OF2012ONTHEFILESOFTHE CHIEFJUDICIALMAGISTRATECOURT, ERNAKULAM. ``` ``` ANNEXURE3 ``` ``` TRUECOPYOFCOUNTERFILEDBYTHEFIRST ACCUSEDINCMPNO.438OF2019IN C.C.NO.49OF2012ONTHEFILESOFTHE CHIEFJUDICIALMAGISTRATECOURT, ERNAKULAM. ``` ``` ANNEXURE4CERTIFIEDCOPYOFTHEORDERINCMP NO.438OF2019INCCNO.49OF2012ON THEFILESOFTHECHIEFJUDICIAL MAGISTRATECOURT,ERNAKULAMDATED 02/07/2019. ```