Gireesh v. State of Kerala and Antony Nithin

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **WEDNESDAY, THE 4TH DAY OF JANUARY 2017/14TH POUSHA, 1938** **Crl.MC.No. 8904 of 2016** **-------------------------** **ORDER DTD.5.12.2016 IN CRL.MP.3665/2016 IN SC.NO.769/2015 OF ADDL. DISTRICT (SPECIAL COURT), ERNAKULAM** **.....** **PETITIONER(S)/ACCUSED:** **---------------------** **GIREESH, AGED 32 YEARS, S/O SREENIVASAN, PERUMBOTTAYIL HOUSE, JANAKEEYA ROAD, ELAMAKKARA P.O., COCHIN - 682 026.** ## **BY ADV. SRI.C.R.SANISH** ## **RESPONDENT(S)/STATE AND DEFACTO COMPLAINANT:** **--------------------------------------------** ## **1. STATE OF KERALA,** **REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERLA, ERNAKULAM - 682 031.** ## **2. ANTONY NITHIN,** **S/O JAIMS, MALIYEKKAL HOUSE, PERUMPOTTA RAOD, EDAPPALLY SOUTH, ERNAKULAM - 682 024.** **R1 BY PUBLIC PROSECUTOR SRI.C.N.PRABHAKARAN** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 04-01-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **msv/** ## **Crl.MC.No. 8904 of 2016 -----------------------** ## **APPENDIX** ## **PETITIONER(S)' ANNEXURES: -------------------------** |**ANNEXURE A1**|**THE TRUE COPY OF THE CRL MP 3665/2016 FILED BY**| |---|---| ||**THE PETITIONER BEFOR ETHE ADDL. DISTRICT AND**| ||**SESSIONS JUDGE, ERNAKULAM.**| |**ANNEXURE A2**|**THE TRUE COPY OF THE DISMISSAL ORDER IN CRL M.P.**| ||**NO 3665/2016, ADDL. DISTRICT AND SESSIONS JUDGE,**| ||**ERNAKULAM.**| |**ANNEXURE A3**|**CERTIFIED COPY OF DEPOSITION OF PW1**| ||**DTD.15.10.2016 IN THE FILE OF SC.769/2015**| ||**PENDING BEFORE ADDL. DIST AND SESSIONS COURT.**| |**ANNEXURE A4**|**CERTIFIED COPY OF DEPOSITION OF PW2**| ||**DTD.15.10.2016 IN THE FILE OF SC.769/2015**| ||**PENDING BEFORE ADDL. DIST AND SESSIONS COURT.**| |**ANNEXURE A5**|**CERTIFIED COPY OF DEPOSITION OF PW3**| ||**DTD.15.10.2016 IN THE FILE OF SC.769/2015**| ||**PENDING BEFORE ADDL. DIST AND SESSIONS COURT.**| |**ANNEXURE A6**|**CERTIFIED COPY OF DEPOSITION OF PW4**| ||**DTD.16.11.2016 IN THE FILE OF SC.769/2015**| ||**PENDING BEFORE ADDL. DIST AND SESSIONS COURT.**| |**ANNEXURE A7**|**CERTIFIED COPY OF DEPOSITION OF PW5**| ||**DTD.16.11.2016 IN THE FILE OF SC.769/2015**| ||**PENDING BEFORE ADDL. DIST AND SESSIONS COURT.**| |**RESPONDENT(S)'**|**ANNEXURE**| |**-----------------------**|| **//TRUE COPY//** **P.S.TO JUDGE** **msv/** **NIL** ## **RAJA VIJAYARAGHAVAN, V., J.** ------------------------------------------ ## **Crl.M.C. No.8904 of 2016** -----------------------------------------Dated this the 4[th] day of January, 2017 ## **O R D E R ~~~~~~~~** - 1.Under challenge in this petition filed under section 482 of the Code of Criminal Procedure is the order dated 5.12.2016 in Cr.M.P.No 3665 of 2017 in S.C. No 769 of 2015 on the file of the Additional Sessions Judge (Special Court), Ernakulam. - 2.In the aforesaid case, the petitioner faces indictment under Sections 323, 324 and 427 of the Indian Penal Code and under Section 23 of Juvenile Justice (Care and Protection of Children) Act,2015. - 3.The prosecution allegation is that on 6.8.2014 at about - 3.45 p.m., the petitioner along with another person **Crl.M.C. No. 8904 of 2016 -2-** wrongfully restrained CW 1 and assaulted him causing bodily injuries. - 4.Trial commenced and the prosecution examined PW's 1 to 3 on 15.10.2016 . According to the petitioner, the counsel engaged by him did not conduct an effective cross examination and failed to elicit materials which would have impeached the credit of the witnesses. In the said circumstances a fresh counsel was engaged who examined the other witnesses. The incriminating materials were put to the accused under section 313 of the Code of Criminal Procedure. The case now stands posted for examination of the defence witnesses. An application for recalling PW 1 and PW 2 was filed by the petitioner in the course of the trial. The same was dismissed which is under challenge in this petition. 5.Heard the rival submissions. **Crl.M.C. No. 8904 of 2016** **-3-** - 6.According to the learned counsel, several material aspects were omitted to be asked while PW1 and PW2 were crossexamined by his earlier counsel. There were discrepancies in the wound certificate, which aspect was also not brought out. He has changed his counsel and the prayer is to grant him an opportunity to recall Pws1 and 2 and to afford him an opportunity to cross-examine them. - 7.The contentions of the learned counsel appearing for the petitioner was countered by the learned Public Prosecutor and it was submitted referring to Annexure-A1 petition filed before the court below that sufficient grounds were not made out to exercise the powers under Section 311 of the Code. Referring to the case of **Ravinder v. State of Haryana** (2011 Crl.L.J 1705) it was contended that recalling of a prosecution witness on the ground that the earlier counsel could not cross-examine the witness on **Crl.M.C. No. 8904 of 2016** **-4-** certain points cannot be sustained. Reliance is also placed on a decision of this Court in **Parkson Estate & Industries, Cochin and Another** v. **M/s.Trinity Trading, Kochi and Another** [2016(1) KHC 278] to bring home his point. - 8.I have considered the rival submissions and have gone through the materials on record. 9. Section 311 of the Code empowers the Court at any stage of any inquiry, trial or other proceedings under the Code to summon any person as a witness or examine any person in attendance, though not summoned as witness or recall and re-examine already examined witness. The second part of the Section uses the word 'shall'. It says that the Court shall summon and examine or recall or reexamine any such person if his evidence appears to it to be essential to the just decision of the case. The words **Crl.M.C. No. 8904 of 2016** **-5-** 'essential to the just decision of the case' are the key words. The Court must form an opinion that for the just decision of the case recall or re-examination of the witness is necessary. Since the power is wide, it's exercise has to be done with circumspection. It is trite that wider the power greater is the responsibility on the Courts which exercise it. The exercise of this power cannot be untrammelled and arbitrary but must be only guided by the object of arriving 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 Section 311 of 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. Further, **Crl.M.C. No. 8904 of 2016** **-6-** 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. - 10.In the case on hand, PW1 and PW2 are sought to be recalled on the ground that the counsel who had crossexamined PW1 and PW2 was incompetent and that he had omitted to put certain pertinent questions to the witnesses and for that reason a new counsel was engaged. - 11.Identical question was considered by the Apex Court in **AG v. Shiv Kumar Yadav and Another** [AIR 2015 SC 3501], wherein it was held that the prayer to recall the witnesses already examined on the plea that the defence counsel was not competent and had not effectively crossexamined the witness cannot be countenanced. After **Crl.M.C. No. 8904 of 2016** **-7-** elaborately dealing with this aspect, the Apex Court had held that the competence of a counsel was a subjective matter and the plea of incompetence cannot be easily accepted. It was held that recall of witnesses is not a matter of course and the discretion given to the court has to be exercised judiciously to prevent failure of justice and not arbitrarily. It was held that the principle that a retrial must follow on every change of a counsel, can have serious consequences on conduct of trials and the criminal justice system. It was unequivocally held that mere change of counsel cannot be a ground to recall the witnesses. Same view was taken by the Apex Court in **State of Haryana v. Ram Meher and Others** (2016 (2) KLD 547) wherein also it was held that a mere change of counsel cannot be considered as a ground to allow application for recalling the witnesses for the purpose of further cross-examination. It was held that the power **Crl.M.C. No. 8904 of 2016** **-8-** under section 311 of the Code must be invoked only in order to meet the ends of justice for strong and valid reasons and the same must be exercised with care, caution and circumspection. - 12.Having regard to the above settled position, I am of the considered view that the court below has rightfully rejected the application filed under section 311 of the Code. I find no reason to interfere with the order in exercise of powers under section 482 of the Code. This petition will stand dismissed. ## **RAJA VIJAYARAGHAVAN, V. JUDGE** Ps/4/1/17