Jomon v. State of Kerala and Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V MONDAY, THE 14[TH] DAY OF AUGUST 2023 / 23RD SRAVANA, 1945`** ## **`CRL.MC NO. 5449 OF 2022 - CC 487/2019 OF JUDICIAL MAGISTRATE OF FIRST CLASS I, IDUKKI`** ## **`PETITIONER:`** ``` JOMON,AGED45YEARS,S/O.SASIKUMAR,THEKKILAKKATTIL HOUSE,PERINGASSERYPART,PERINGASSERYKARA, UDUMBANNOORVILLAGE,THODUPUZHA,IDUKKIDISTRICT - PIN685595 ``` ``` BYADVS.GEORGEMATHEW,PRAVEENS.M.D.SASIKUMARAN GEORGEK.V.,SUNILKUMARA.G,STEPHYKREGIMATHEW K.T.DIPUJAMES ``` ## **`RESPONDENTS:`** ``` 1STATEOFKERALAREP.BYPUBLICPROSECUTOR,HIGHCOURT - OFKERALA,ERNAKULAM682031 2THESUBINSPECTOROFPOLICE,IDUKKIPOLICESTATION, - IDUKKIDISTRICT685602,THROUGHPUBLICPROSECUTOR, - HIGHCOURTOFKERALA,ERNAKULAM682031 ``` ``` SMT.NEEMATV,SR.PUBLICPROSECUTOR ``` ``` THISCRIMINALMISC.CASEHAVINGCOMEUPFORADMISSIONON 14.08.2023,THECOURTONTHESAMEDAYPASSEDTHEFOLLOWING: ``` Crl.M.C No.5449 of 2022 2 ## **ORDER** This petition is filed seeking to quash the order passed by the learned Judicial First Class Magistrate Court, Idukki, in CMP Nos.2704/2022, 2705/2022, and 2706/2022, and he is accused in CC No.487/2019 on the file of the said court. He is facing prosecution for having committed offences punishable under Sections 294(b), 323, and 506(1) of the IPC. 2. Prosecution allegation is that on 12.06.2019 at about 2 pm, the petitioner herein assaulted the de facto complainant, and later on 15.6.2019 at about 10.15 am, he hurled abuses and thereby committed the offence. After the examination of CW1/PW1, 3 separate applications were filed by the learned Public Prosecutor. Those applications are as under: CMP No.2704/22 This application is filed seeking to issue a summons to the Manager, G4 Section, DPO, Idukki to produce the complaint lodged by PW1 before the Superintendent of Police, Idukki, through the District Collector, Idukki on the same day of the incident. CMP No.2705/2022 Crl.M.C No.5449 of 2022 3 This is an application filed by the learned Public Prosecutor under Section 91 of the Cr. P.C. to summon the relevant case proceedings and records which are under the custody of the SS-2 section Clerk, Collectorate to summon the Huzur Sheristadar, SS-2 Section, Collectorate to produce the documents. CMP No.2706/2022 This is an application filed under Section 311 of the Cr. P.C. seeking to recall and re-examine PW1. 3. The learned Magistrate, after relying on the law laid down in **Rajaram Prasad Yadav v. State of Bihar and Another[1] ,** took the view that summoning of the document as well as recalling of PW1 was essential for just disposal of the case. The learned Magistrate also noted that CWs 2 to 4 and CWs 6 and 7 are yet to be examined, and only PW1 is examined before the court. 4. Sri. George Mathew, the learned counsel appearing for the petitioner, submitted that the application filed by the learned Public Prosecutor was after four months of the cross-examination of PW1. According to the learned counsel, if any such complaint was lodged before the Superintendent of Police and if any such document was available, it was > 1 AIR 2013 SC 3018 Crl.M.C No.5449 of 2022 4 for the Investigating Officer to produce the documents along with the final report. Since the same has not been done, the attempt is to fill up the lacuna in the prosecution case. 5. The learned Public Prosecutor on the other hand submitted that there are various provisions in the Code enabling the Court to ensure that justice is not denied to the parties. It is submitted that the criminal court cannot be a silent spectator and has been conferred with vast powers under Section 311 and Section 91 of the Cr. P.C. as the ultimate aim is to arrive at a just decision in the case. It is submitted that no interference is warranted to the order passed by the learned Magistrate in view of the law laid down in **Varsha Garg v. State of Madhya Pradesh[2]** . 6. I have considered the submissions advanced. 7. The records disclose that after the examination of the de facto complainant, separate applications were filed under Section 91 and 311 of the Cr.P.C to summon certain records and to recall and re-examine the complainant. It is well settled that the power conferred under S.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 > 2 2022 SCC Online SC 986 Crl.M.C No.5449 of 2022 5 with great caution and circumspection. The Supreme Court has laid down in **Varsha** (Supra) that the object underlying Section 311 of the Code is to ensure that there is no failure of justice due to a mistake by either party in bringing valuable evidence to record or leaving ambiguities in the statements of witnesses examined from either side. The determinative factor is whether it is essential to the just decision of the case. Section 311 is not limited to the benefit of the accused, and it would not be an improper exercise of the court's powers to summon a witness under the section merely because the evidence supports the case of the prosecution and not that of the accused. Section 311 is a general section that applies to all proceedings, inquiries, and trials under the Code, and it empowers the Magistrate to issue summons to any witness at any stage of such proceedings, trial, or inquiry. The significant expression in Section 311 is "at any stage of any inquiry or trial or other proceeding under this Code." However, it is important to remember that while the section confers a very broad power on the court to summon witnesses, the discretion conferred must be exercised judiciously, as the wider the power, the greater is the need for the application of judicial mind. 8. In paragraph Nos. 36 and 37 of **Varsha** (supra), it was observed Crl.M.C No.5449 of 2022 6 ## as under 36. Summing up the position as it obtained from various decisions of this Court, namely Rameshwar Dayal v. State of U.P. (1978 (2) SCC 518], State of W.B. v. Tulsidas Mundhra [1963 Supp (1) SCR 1], Jamatraj Kewalji Govani v. State of Maharashtra [AIR 1968 SC 178, Masalti v. State of U.P [AIR 1965 SC 202] Rajeswar Prosad Misra v. State of W.B.[AIR 1965 SC 1887] and R.B. Mithani v. State of Maharashtra [1971 (1) SCC 523], 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 Section 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. Crl.M.C No.5449 of 2022 7 Having considered the order passed by the learned Magistrate, I find that the learned Magistrate has exercised his discretion in a proper manner. In that view of the matter, the order does not warrant any interference. This petition will stand dismissed. Sd/- **RAJA VIJAYARAGHAVAN V, JUDGE** IAP Crl.M.C No.5449 of 2022 8 ## **`APPENDIX OF CRL.MC 5449/2022`** ``` PETITIONER(S)ANNEXURES: ``` - `Annexure1 TRUE COPY OF PETITION DTD. 26.04.2022 IN C.M.P. NO. 2704 OF 2022 IN C.C. NO.487 OF 2019 OF THE JUDICIAL FIRST CLASS MAGISTRATE'S COURT, IDUKKI` - `Annexure2 TRUE COPY OF PETITION DTD. 26.04.2022 IN C.M.P. NO. 2705 OF 2022 IN C.C. NO.487 OF 2019 OF THE JUDICIAL FIRST CLASS MAGISTRATE'S COURT, IDUKKI` - `Annexure3 TRUE COPY OF PETITION DTD. 26.04.2022 IN C.M.P. NO. 2706 OF 2022 IN C.C. NO.487 OF 2019 OF THE JUDICIAL FIRST CLASS MAGISTRATE'S COURT, IDUKKI` - `Annexure4 TRUE COPY OF OBJECTION DTD. 04.05.2022 IN ANNX. A1 FILED BY PETITIONER IS PRODUCED` - `Annexure5 TRUE COPY OF OBJECTION DTD. 04.05.2022 IN ANNX. A3 FILED BY PETITIONER` - `Annexure6 TRUE COPY OF COMMON ORDER DTD. 13.07.2022 IN C.M.P. NOS.2704 OF 2022, 2705 OF 2022 AND 2706 OF 2022 IN C.C. NO.487 OF 2019 OF THE JUDICIAL FIRST CLASS MAGISTRATE'S COURT, IDUKKI ARISING FROM CR. NO. 254 OF 2019 OF IDUKKI POLICE STATION, IDUKKI DISTRICT, IS PRODUCED`