Azara v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.BHAVADASAN** **THURSDAY, THE 23RD DAY OF MAY 2013/2ND JYAISHTA 1935** **OP(Crl.).No. 1241 of 2013 (Q) ------------------------------** **ORDER IN CRL.MP NO.3502/2012 IN CC 853/2008 OF THE J.M.F.C.-II, CHERTHALA DATED 24-09-2012** ## **PETITIONER(S): --------------** **AZARA, AGED 36 YEARS D/O.ABOOBECKER, EARE VELIYIL HOUSE MANNANCHERY VILLAGE, MANNANJERY MURI.** **BY ADVS.SRI.P.K.IBRAHIM SMT.A.A.SHIBI** **RESPONDENT(S):** **--------------** **1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM-682031.** **2. SANJJAN, S/O.SAINUDHEENKUNJU ASAN, AMPATTUVEEDU, WARD-X MANNANCHERRY PANCHAYAT, MANNANCHERY VILLAGE-688538.** **3. SAINUDHEEN KUNJU ASAN,S/O.PAREETHUKUNJU ASAN, AMPATTU VEEDU, WARD-X, MANNANCHERRY VILLAGE-688538.** **4. HALEEMA,W/O.SAINUDHEEN KUNJU ASAN, AMPATTU VEEDU, WARD-X MANNANCHERRY VILLAGE-688538** **5. SHAMEER, S/O.SAINUDHEEN KUNJU ASAN, AMPATTU VEEDU, WARD-X MANNANCHERRY VILLAGE-688538.** **R2-R5 BY ADV. SRI.K.RAMAKUMAR (SR.) BY ADV. SRI.S.M.PRASANTH BY ADV. SMT.SMITHA GEORGE R1 BY PUBLIC PROSECUTOR SRI.V.S.SREEJITH** **THIS OP (CRIMINAL) HAVING COME UP FOR ADMISSION ON 23-05-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **OP(Crl.).No. 1241 of 2013 (Q)** **------------------------------** ## **APPENDIX** ## **PETITIONER'(S) EXHIBITS:** **EXHIBIT P1: COPY OF THE COMPLAINT OF THE PETITIONER DATED 24.11.2007.** **EXHIBIT P2: COPY OF THE DEPOSITION OF THE PW1.** **EXHIBIT P3: COPY OF THE DEPOSITION OF THE PW2.** **EXHIBIT P4: COPY OF THE PETITION TO RECALL PW1 UNDER SECTION 311 CRPC.** **EXHIBIT P5: COPY OF THE OBJECTION FILED BY THE ASSISTANT PUBLIC PROSECUTOR.** **EXHIBIT P6: COPY OF THE ORDER DATED 24.9.2012** **RESPONDENT'(S) EXHIBITS: NIL** **//TRUE COPY//** **PA TO JUDGE** **BKA** ## **P. BHAVADASAN, J.** - - - - - - - - - - - - - - - - - - - - - - O.P.(Crl.). No. 1241 of 2013 - - - - - - - - - - - - - - - - - - - - - - Dated this the 23[rd] day of May, 2013. ## **JUDGMENT** In this original petition filed under Article 227 of the Constitution of India, the petitioner challenges Ext.P6 order whereby the court below in its wisdom thought it proper to recall P.W.1 for further cross-examination by the accused. 2. The short facts absolutely necessary for the disposal of this petition are as follows: It appears that the petitioner had filed a private complaint against respondents 2 to 5 alleging commission of offences under Sections 406 and 498A of Indian Penal Code. That complaint was forwarded for investigation under Section 156(3) of Cr.P.C. and final report was laid. The court took cognizance of the offences. Trial commenced. P.W.1 complainant was examined, so also several other witnesses. 3. While so, it appears that the accused filed Ext.P4 petition under Section 311 of Cr.P.C. pointing out that O.P.(Cri).1241/2013. 2 there were some inadvertent omissions on the part of the counsel for the accused in not putting certain crucial questions to P.W.1 which have material bearing on the issues and therefore he may be permitted to recall P.W.1 for further cross-examination. 4. The court below by the impugned order allowed that application. 5. The main attack against the order is that the observation in the order that no written objection has been filed is fallacious. A written objection was infact filed raising objection to the recalling of P.W.1. It was without adverting to the said objections and the merits of the petition that the order has been passed. Therefore, it is unsustainable in law. It is contended that recalling for examination under Section 311 of Cr.P.C. is not automatic or a matter of course and the court has to apply its mind and the order passed has to contain the reason as to why permission has been granted to recall the witness. These aspects are O.P.(Cri).1241/2013. 3 conspicuously absent in the order and therefore, the order is not sustainable in law. For the above proposition, learned counsel relied on the decisions reported in **Anil Mon Thomas v. Central Bureau of Investigation** (2011(4) KHC 713) and **Surya Dev Rai v. Ram Chander Rai** (2003) 6 SCC 675). 6. Learned Senior Counsel appearing for respondents 2 to 5 attempted to support the order. It was pointed out that a petition under Article 227 of the Constitution is misconceived and there are adequate other provisions available under the Code, to which resort should have been taken by the petitioner and on that sole ground this petition should fail. It was also pointed out that the court in its wisdom has exercised its jurisdiction and thought it fit and proper to recall P.W.1 in the light of the averments made in the petition. It may be unfortunate that the court failed to take note of the objection filed by the Assistant Public Prosecutor. But that by itself is not a ground to O.P.(Cri).1241/2013. 4 interfere with the impugned order. It was also pointed out that the impugned order was passed on 24.9.2012 and it has been challenged long thereafter with a wrong date initially shown. At any rate, according to the learned Senior Counsel, no grounds are made out to interfere with the impugned order. 7. It is true that in the impugned order it is seen mentioned that no written objection is seen filed which may not be quite correct in the light of Ext.P5 produced along with the original petition. Assuming that objections were filed, the question that arises for consideration is whether the court below was justified in allowing the petition. It is true that power under Section 311 of Cr.P.C. is not to be exercised as a matter of course. Section 311 consists of two parts. First part gives the discretion to the court to recall a witness at any stage of enquiry, trial or proceedings and the later part casts a mandatory obligation on the part of the court to recall a witness if his evidence appears to be O.P.(Cri).1241/2013. 5 essential for a just decision. We are in this case concerned with the first part of Section 311. 8. It is not necessary in the light of the decision that is sought to be taken to consider whether a original petition as such is maintainable or whether a revision should have been filed. 9. In Ext.P4 petition filed by the accused, he had given certain reasons as to why he is compelled to recall P.W.1. The main objection taken is that P.W.1 was extensively cross-examined and nine other witnesses were subsequently examined and the questions that are proposed to be put to P.W.1 have been put to P.W.2, who is none other than the father of P.W.1 and answers elicited. It is also contented that it is unnecessary to question P.W.1 on the same issue and the attempt is nothing but an abuse of process of court. 10. It is also contended that the offences attributed to the accused are under Sections 406 and 498A 6 O.P.(Cri).1241/2013. of I.P.C. and under those circumstances, the second marriage of P.W.1 is of no relevance. 11. This court at this point of time is not concerned with the relevance or irrelevance of the question that will be put to the witness. Answers elicited from P.W.2 would not bind P.W.1. The respondents in their petition, namely, Ext.P4, have given a reason as to why they were compelled to recall P.W.1. Certainly, if it is found on recalling and examining the witness that the questions that are being put are unnecessary or has no relevance to the issue on hand, the court can interfere and prevent such questions and disallow those questions. 12. In the case on hand, the court below has felt that it is in the interests of justice that the petitioners before the court below were allowed to recall P.W.1. 13. It has to be noticed that the defence is yet to adduce its evidence. One cannot omit to note that the defence when called upon to adduce evidence can give a list O.P.(Cri).1241/2013. 7 of witnesses which can contain the name of P.W.1 and unless it is shown that the attempt of the defence is to delay the proceedings or is vexatious, the court will be bound to issue summons to P.W.1 and the defence can further cross-examine her. It is not as if the entire evidence has been closed. 14. It is true that in the decisions cited by the learned counsel for the petitioner, it has been held that the power under Section 311 is not to be exercised mechanically and there has to be cogent and convincing reasons for recalling a witness. But as already stated, there is considerable difference between recalling the witness after trial is over and recalling a witness during the trial of the case. In the case on hand, it was during the trial that the witness was sought to be recalled. One cannot omit to notice that even the prosecution evidence is not over. 15. The court below for reasons, with which it was convinced, has chosen to exercise the discretionary power 8 O.P.(Cri).1241/2013. and thought it proper to recall P.W.1 for further cross-examination. As already noticed, if objectionable questions are put to P.W.1, the court is not powerless to disallow such questions or to prevent such questions unconnected with the issue on hand. It is too early to pre-judge as to what is relevant and irrelevant at this point of time. As already mentioned, the court below has in its discretion allowed the petition and there is no reason as to why this court should interfere with the discretion so exercised by the court below. This Original Petition is without merits and it is dismissed. P. BHAVADASAN, JUDGE sb.