Biju K. R. v. State of Kerala and Vincent Simon

``` INTHEHIGHCOURTOFKERALAATERNAKULAM PRESENT THEHONOURABLEMR.JUSTICERAJAVIJAYARAGHAVANV WEDNESDAY,THE2[ND]DAYOFAUGUST2023/11THSRAVANA,1945 CRL.MCNO.5904OF2021 CRIMENO.219/2013OFElathurPoliceStation,Kozhikode AGAINSTTHEORDERCMP3224/2021INCC266/2014OFJUDICIAL MAGISTRATEOFFIRSTCLASS-I,KOYILANDY PETITIONER/2NDACCUSED: ``` ``` BIJU.K.R., AGED45YEARS S/O.RADHAKRISHNAN,RAJAMVILLAHOUSE, ERATHKULAKKADAMURI,KOOLAKKADAP.O., KALAYAPURAMVILLAGE,KOTTARAKKARATALUK, KOLLAMDISTRICT-691521. BYADVS. B.PRAMOD NISHAK.PETER NAMITHAJYOTHISH ``` ## **`RESPONDENTS/COMPLAINANT:`** ``` 1STATEOFKERALA, REPRESENTEDBYPUBLICPROSECUTOR, HIGHCOURTOFKERALA,ERNAKULAM-682031. 2VINCENTSIMON, S/O.SIMON,NISSYVILLA,ELANJIKKAL, MOGAVOOR,KOZHIKODE-673661. BYADVS. SRI.T.D.SUSMITHKUMAR SRI.T.O.DEEPA SRI.M.CASHI,SR.PP THISCRIMINALMISC.CASEHAVINGCOMEUPFORADMISSIONON 02.08.2023,THECOURTONTHESAMEDAYPASSEDTHEFOLLOWING: ``` ``` CRL.MCNO.5904OF2021 ``` ``` 2 ``` ## **`ORDER`** The petitioner herein is the 2nd accused in C.C No.266 of 2014 on the files of the Judicial First Class Magistrate Court, Koyilandy. In the aforesaid case, he along with the rest of the accused is facing prosecution for having committed offence punishable under Sections 120 B, 419, 468, 471, 406, and 420 of the IPC. 2. The petitioner filed an application for recalling PW30 and PW31 for the purpose of cross-examination. The said application was dismissed by the learned Magistrate by Annexure A18 order. The said order is under challenge. 3. Sri. B. Pramod, the learned counsel appearing for the petitioner, submitted that the learned Magistrate was persuaded to reject the application for three reasons. The first reason is that though ample opportunity was granted to the petitioner to cross-examine PW30 and PW31, the same was not availed. At the same time, those witnesses were cross-examined by accused Nos.1 and 3. The second reason is that the petitioner has not disclosed in the petition the purpose for which the petitioner wants to recall PW30 and PW31. The 3rd reason is that on the date of consideration, despite the orders issued by the learned ``` CRL.MCNO.5904OF2021 ``` ``` 3 ``` Magistrate, the petitioner had failed to appear. According to the learned counsel, the petitioner was arrayed as an accused in a large number of cases. He was also the accused in S.C No.897 of 2013 on the file of the Court of Sessions, Kollam. He was convicted by the Court of Session and the conviction and sentence was overturned by this Court in Appeal. The judgment of acquittal passed by this Court was confirmed by the Apex Court. The petitioner was undergoing incarceration for a long period, and that is the reason why the petitioner was unable to furnish proper instructions to his counsel. According to the learned counsel, the failure on the part of the learned counsel to give proper reasons in his application filed under Section 311 of the Cr.P.C. may not be a reason to deprive the petitioner herein of an opportunity to cross-examine the witnesses. The petitioner also refers to the medical records to substantiate that he is suffering from multiple ailments, including leukemia and heart disease. These were the reasons which prevented the petitioner from appearing before the learned Magistrate and furnishing proper instructions to his counsel. According to the learned counsel, none of these aspects were taken on a note by the learned Magistrate while dismissing the application. The learned counsel also refers to the law laid down in **Varsha Garg v State of Madhya** ``` CRL.MCNO.5904OF2021 ``` ``` 4 ``` ## **Pradesh**[1] to substantiate his contentions. 4. In response, it is submitted by the learned counsel appearing for the party respondent that ample opportunities were granted to the petitioner herein to contest the matter on its merits. According to the learned counsel, in the application before the learned Magistrate, none of these reasons have been stated. It is further submitted that the only motive of the petitioner is to delay the proceedings. 5. I have considered the submissions advanced. 6. Section 311 of the Code of Criminal Procedure, 1973 (for short “the Code”) confers powers on the court to summon material witness or examine person present. The provision reads thus: ## “ **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.” > 1 2022 SCC Online SC 986 ``` CRL.MCNO.5904OF2021 ``` ``` 5 ``` 7. It is by now settled that the first part of Section 311 is permissive and gives purely discretionary authority to the criminal court and enables it at any stage of inquiry, trial, or other proceedings under the Code to act in one of the three ways, namely, (i) to summon any person as a witness; or (ii) to examine any person in attendance, though not summoned as a witness; or (iii) to recall and re-examine any person already examined. The second part, which is mandatory, imposes an obligation on the court (i) to summon and examine or (ii) to recall and re-examine any such person if his evidence appears to be essential to the just decision of the case. It is also well settled that the power conferred under Section 311 should be invoked by the court only to meet the ends of justice. The court has wide power under this section to even recall witnesses for re-examination 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 (See **Swapan Kumar Chatterjee v. CBI** , (2019) 14 SCC 328). 8. In **P. Sanjeeva Rao v. State of A.P[2] .** , the question before the Apex Court was whether formal errors made by the counsel in failing to > 2 [(2012) 7 SCC 56] ``` CRL.MCNO.5904OF2021 ``` ``` 6 ``` ## cross-examine could be condoned. It was held as follows in paragraph 18 of the judgment **:** **18.** Denial of an opportunity to recall the witnesses for cross-examination would amount to condemning the appellant without giving him the opportunity to challenge the correctness of the version and the credibility of the witnesses. It is trite that the credibility of witnesses whether in a civil or criminal case, can be tested only when the testimony is put through the fire of cross-examination. Denial of an opportunity to do so will result in a serious miscarriage of justice in the present case keeping in view the serious consequences that will follow any such denial. 9. The nature and extent of the power vested in the courts under Section 311 CrPC to recall witnesses were examined by the Apex Court in **Hanuman Ram v. State of Rajasthan[3]** . It was held that the object underlying Section 311 was to prevent failure of justice on account of a mistake of either party to bring on record valuable evidence or in leaving ambiguity in the statements of the witnesses. 10. In **Hoffman Andreas v. Inspector of Customs[4]** , it was held that the grant of the fairest opportunity to the accused to prove his innocence is the object of every fair trial. It was held as follows in paragraph 6 of the judgment. > 3 [(2008) 15 SCC 652] > 4 [(2000) 10 SCC 430] ``` CRL.MCNO.5904OF2021 ``` ``` 7 ``` “6. … In such circumstances, if the new counsel thought to have the material witnesses further examined, the court could adopt latitude and a liberal view in the interest of justice, particularly when the court has unbridled powers in the matter as enshrined in Section 311 of the Code. After all, the trial is basically for the prisoners, and courts should afford the opportunity to them in the fairest manner possible.” 11. Having considered the facts of the instant case in the light of the principles laid down by the Apex Court, I am of the considered opinion that the learned Magistrate was not justified in rejecting the application filed by the accused. In that view of the matter, this petition will stand allowed. Annexure-A18 will stand quashed. The learned Magistrate is directed to recall PW30 and PW31 and grant an opportunity to the petitioner to cross-examine the witnesses. Sd/- **RAJA VIJAYARAGHAVAN V JUDGE** Sru ``` CRL.MCNO.5904OF2021 ``` ``` 8 ``` ## **`APPENDIX OF CRL.MC 5904/2021`** |`PETITIONER’S ANNEXURES`|| |---|---| |`Annexure A1`|`TRUE COPY OF THE PRINT OUT OF THE PROCEEDINGS`| ||`IN CC NO.266/2014 OF JFCM COURT, KOYILANDY`| ||`UPLOADED IN e COURTS WEBSITE DATED 16.03.2018.`| |`Annexure A2`|`TRUE COPY OF THE PRINT OUT OF THE PROCEEDINGS`| ||`IN CC NO.266/2014 OF JFCM COURT, KOYILANDY`| ||`UPLOADED IN e COURTS WEBSITE DATED 18.04.2018.`| |`Annexure A3`|`TRUE COPY OF THE PRINT OUT OF THE PROCEEDINGS`| ||`IN CC NO.266/2014 OF JFCM COURT, KOYILANDY`| ||`UPLOADED IN e COURTS WEBSITE DATED 16.05.2018.`| |`Annexure A4`|`TRUE COPY OF THE PRINT OUT OF THE PROCEEDINGS`| ||`IN CC NO.266/2014 OF JFCM COURT, KOYILANDY`| ||`UPLOADED IN e COURTS WEBSITE DATED 03.07.2018.`| |`Annexure A5`|`TRUE COPY OF THE PRINT OUT OF THE PROCEEDINGS`| ||`IN CC NO.266/2014 OF JFCM COURT, KOYILANDY`| ||`UPLOADED IN e COURTS WEBSITE DATED 17.07.2018.`| |`Annexure A6`|`TRUE COPY OF THE PRINT OUT OF THE PROCEEDINGS`| ||`IN CC NO.266/2014 OF JFCM COURT, KOYILANDY`| ||`UPLOADED IN e COURTS WEBSITE DATED 23.08.2018.`| |`Annexure A7`|`TRUE COPY OF THE DISCHARGE SUMMARY DATED`| ||`16.03.2019 ISSUED TO THE PETITIONER FROM BABY`| ||`MEMORIAL HOSPITAL, KOZHIKODE.`| |`Annexure A8`|`TRUE COPY OF THE PRINT OUT OF THE PROCEEDINGS`| ||`IN CC NO.266/2014 OF JFCM COURT, KOYILANDY`| ||`UPLOADED IN e COURTS WEBSITE DATED 01.02.2021.`| |`Annexure A9`|`TRUE COPY OF THE PRINT OUT OF THE PROCEEDINGS`| ||`IN CC NO.266/2014 OF JFCM COURT, KOYILANDY`| ||`UPLOADED IN e COURTS WEBSITE DATED 15.03.2021.`| |`Annexure A10`|`TRUE COPY OF THE LABORATORY REPORT OF THE`| ||`PETITIONERS LAWYER BY NAME JISHA K. PETER DATED`| ||`ON 21.04.2021.`| ``` CRL.MCNO.5904OF2021 ``` ``` 9 ``` |`Annexure `|`A11`|`TRUE COPY OF THE LABORATORY REPORT DATED`| |---|---|---| |||`01.05.2021 OF THE PETITIONER.`| |`Annexure `|`A12`|`TRUE COPY OF THE LABORATORY REPORT OF THE`| |||`PETITIONER DATED 28.05.2021.`| |`Annexure `|`A13`|`TRUE COPY OF THE LABORATORY REPORT OF THE`| |||`PETITIONER DATED 20.07.2021.`| |`Annexure `|`A14`|`TRUE COPY OF THE LABORATORY REPORT OF THE`| |||`PETITIONER DATED 01.11.2021.`| |`Annexure `|`A15`|`TRUE COPY OF THE MEDICAL CERTIFICATE DATED`| |||`02.11.2021 ISSUED TO THE PETITIONER FROM THE`| |||`LAKESHORE HOSPITAL, ERNAKULAM.`| |`Annexure `|`A16`|`TYPED COPY OF THE CMP NO.3224/2021 IN CC`| |||`NO.266/2014 OF JFCM COURT, KOYILANDY.`| |`Annexure `|`A17`|`TRUE COPY OF THE PROCEEDINGS DATED 22.11.2021`| |||`IN CC NO.266/2014 UPLOADED IN THE e COURT`| |||`WEBSITE.`| |`Annexure `|`A18`|`TRUE COPY OF THE ORDER DATED 26.11.2021 IN CMP`| |||`NO.3224/2021.`|