Mahesh Kumar S/o. Late Ramachandran v. State of Kerala represented by Public Prosecutor, High Court of Kerala, Ernakulam, and Soju Lakshmi

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** ## **THE HONOURABLE MRS. JUSTICE SHIRCY V.** **TUESDAY ,THE 14TH DAY OF AUGUST 2018 / 23RD SRAVANA, 1940** ## **Crl.MC.No. 2365 of 2017** **AGAINST THE ORDER IN CMP 4240/2014 IN C.C. NO. 387/2007 of THE JUDICIAL FIRST CLASS MAGISTRATE-I, CHANGANACHERRY, DATED 23-02-2015** ## **PETITIONER/1st accused:** **MAHESH KUMAR S/O.LATE RAMACHANDRAN, MAHESH BHAVAN, KUDAVETTOOR KARA, ODANAVATTOM VILLAGE, KOTTARAKARA TALUK.** **BY ADVS. SRI. WILSON URMESE SRI. T. SAPROO** ## **RESPONDENT/STATE** **1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-682031, REPRESENTING THE SUB INSPECTOR OF POLICE, CHANGANACHERRY.** **2 SOJU LAKSHMI D/O.SOMADEVAN, 'SIVA SAKTHI', KURISUMOODU KARA, CHETHIPUZHA VILLAGE, CHANGANACHERRY P.O., PIN686101.** **BY ADV. SRI.ALEX.M.SCARIA** **OTHER PRESENT:** **P.P:- SMT. M.K. PUSHPALATHA** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 25.07.2018, THE COURT ON 14.08.2018 PASSED THE FOLLOWING:** CRL MC 2365/2017 2 ## **O R D E R** The marriage of the petitioner and the second respondent was solemnized on 20.03.2006 as per the rites and ceremonies of Hindu community and they resided together as husband and wife at his residence. But, unfortunately their relationship has strained, resulting litigation before different courts. One such case instituted by the second respondent/wife is pending before the Family Court, Alappuzha for realization of money as O.P.No.894/2006. She also preferred a complaint against this petitioner and her in-laws for treating her with cruelty and now the case is pending as C.C.No.387/2007 before the Judicial First Class Magistrate-I, Changanacherry. In the case before the Family Court, the second respondent was examined and her examination was completed on CRL MC 2365/2017 3 25.11.2009. She was examined as PW1 in C.C.No.387/2007 and her examination was completed on 27.08.2011. Later, CMP No.4240/2014 was filed by the petitioner/husband under Section 311 Cr.P.C to permit him to recall and reexamine her. The said petition was dismissed by an order dated 23.02.2015 by the learned Judicial First Class Magistrate. The said order is under challenge . 2. Heard Mr. Wilson Urumese, the learned counsel for the petitioner and Mr. Alex M.Scaria, the learned counsel for the second respondent. The learned Public Prosecutor was also heard. 3. It is submitted by the learned counsel for the petitioner that the examination of the second respondent as PW1 was completed before the Magistrate Court on 27.08.2011 . He applied for the copy of the deposition and on perusal of the same, it was convinced that he omitted to put certain questions to her and also could not contradict her with the evidence tendered by her before the Family CRL MC 2365/2017 4 Court. Hence, he seeks for the indulgence of this Court to afford an opportunity to contradict her with her statement before the Family Court in the present case. 4. The learned counsel for the second respondent opposing the application contended that there is no ground to recall her and the intention of the petitioner is not only to prolong the matter which commenced in the year 2007 but also to harass her. If permission is granted to recall her, it would cause serious prejudice to her resulting in miscarriage of justice. 5. In order to appreciate the rival contentions, it would be profitable to reiterate Section 311 of the Code of Criminal Procedure which reads as follows: “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 CRL MC 2365/2017 5 person already examined; and the Court shall summon and examine or recall and reexamine any such person if his evidence appears to it to be essential to the just decision of the case'' 6. A reading of this provision makes it clear that any court, at any stage, summon any person as a witness or recall any witness already examined, if the court finds it essential to take a just decision of the case. 7. Relying on the decision of the Supreme Court in **State of Haryana v. Ram Mehar 2016(4)KLT SN 15** **(SC)** the learned counsel for the petitioner would point out that it is held that a liberal approach shall be the rule and all other parameters become exception. The Apex Court in this decision further held as follows: ''The wide discretionary power should be exercised judiciously and not arbitrarily. The court must satisfy itself that it was in every respect essential to examine such a witness or to recall him for further examination in order to arrive at a just decision of the case. Exigency of the situation, fair play and CRL MC 2365/2017 6 good sense should be the safeguard while exercising the discretion. The court should bear in mind that no party in a trial can be foreclosed from correcting errors and that if proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the court should be magnanimous in permitting such mistakes to be rectified. The court should be conscious of the position that after all the trial is basically for the prisoners and the court should afford an opportunity to them in the fairest manner possible. In that parity of reasoning, it would be safe to err in favour of the accused getting an opportunity rather than protecting the prosecution against possible prejudice at the cost of the accused. The court should bear in mind that improper or capricious exercise of such a discretionary power, may lead to undesirable results. The power under S.3.11 Cr.P.C. 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 care, caution and circumspection. The court should bear in mind that fair trial entails the interest of the accused, the victim and the society and, therefore, the grant of fair and proper opportunities to the persons concerned, must be ensured being a constitutional CRL MC 2365/2017 7 goal, as well as a human right.” 8. On the other hand, the stand taken by the learned counsel for the second respondent is that the court below had rightly rejected the request of the petitioner as it was found that the attempt of the petitioner was to fill up the lacuna and also to prolong the proceedings. He refer to the decision in **Santhosh De and Another v. Archna Guha and Others [ (1994) 2 SCC 420]** to support his argument which reads as follows: “15. The facts of this case impel us to say how easy it has become today to delay the trial of criminal cases. An accused so minded can stall the proceedings for decades together, if he has the means to do so. Any and every single interlocutory is challenged in the superior courts and the superior courts, we are pained to say, are falling prey to their stratagems. We expect the superior courts to resist all such attempts. Unless a grave illegality is committed, the superior courts should not interfere. They should allow the court which is seized of the matter to go on with it. There is always an appellate court to correct the errors. One CRL MC 2365/2017 8 should keep in mind the principle behind Section 465 CrPC. Any and every irregularity or infraction of a procedural provision cannot constitute a ground for interference by a superior court unless such irregularity or infraction has caused irreparable prejudice to the party and requires to be corrected at that stage itself. Such interference by superior courts at the interlocutory stages tends to defeat the ends of justice instead of serving those ends. It should not be that a man with enough means is able to keep the law at bay. That would mean the failure of the very system.” 9. The Hon'ble Supreme Court in **Manan S.K and** **others v State of West Bengal and another (AIR 2014** **SC 2950)** observed that the words 'essential to the just decision of the case' are the key words of Section 311 Cr.P.C and the court has to consider all circumstances to decide whether prayer for recall is genuine. 10. It is quite apparent from the various judgments of the Apex Court that the object of Section 311 Cr.P.C. is to enable the court to summon any person as a witness or CRL MC 2365/2017 9 re-call or re-examine any witness to render a just decision without causing prejudice or giving unfair advantage to the accused. 11. The learned counsel for the second respondent would point out that the examination of the second respondent before the Family Court was completed on 25.11.2009. Copy application for getting a copy of her deposition before the Family Court was filed only on 02.01.2012, that too after completion of her evidence before the Magistrate Court on 27.08.11. She was cross examined in both these two cases by the very same counsel. After obtaining a decree of divorce she remarried and is residing at a place far away from the place of trial. The order impugned was passed on 23.02.2015 and this petition was filed only on 23.03. 2017. The attempt of the petitioner is only to harass her, is the definite contention of the second respondent and it appears so, from the sequence of events. 12. Whether her statement before the Family Court CRL MC 2365/2017 10 could be used as her previous statement and confront her with her evidence in this case by recalling her after a long delay is the point mooted for consideration. Of-course Section 145 of the Evidence Act empowers to put questions to contradict the witness as to previous statements made in writing. But whether adequate and specific reasons are made out by the petitioner to recall her at this stage though the power under Section 311 Cr.P.C permits the court to exercise its discretion at any stage of its proceedings, is the crux of the dispute here. 13. It is well settled that the discretionary power available under Section 311 Cr.P.C cannot be used to fill up the lacuna, but has to be used to bring valuable piece of evidence on record to ensure that there is no failure of justice. Recalling a witness is the discretion of the court which has to be exercised judiciously with the object to find out the truth involved in the issue to render a just decision, but definitely it should not cause undue delay in the trial of CRL MC 2365/2017 11 the case resulting in miscarriage of justice. Here, the examination of the second respondent was over on 27.08.2011. The copy application for her deposition before the Family Court was filed only on 02.01.2012 that is after her examination before the Magistrate Court. The application to recall her was filed in the year 2014. The request is to recall the witness, a lady who had to file a complaint against her husband and in laws even within a period of one year of her marriage. Of course the truth of the allegation can be arrived at only after a proper trial; but the trial has to be completed without inordinate delay in the fairest manner possible. The existence of valid and strong reasons to meet the ends of justice, are essential to invoke this discretionary power. Again recalling her at this distance of time will no doubt cause undue hardship to her especially when it appears that no sufficient ground is made out by this petitioner to point out that if the witness is not recalled and further cross examined, it would result in absolute CRL MC 2365/2017 12 injustice and prejudice to him as well to the co-indictees. The contention of the learned counsel for the petitioner that he could not cross examine the witness on certain points especially in view of her deposition before the Family Court cannot be construed as a valid or sufficient reason to re-call her on the presumption that fair adjudication of the case will be achieved only by recalling her before the court again for further cross examination. Certainly, no court can shut down the opportunity to adduce evidence for the just decision of the case resulting miscarriage of justice for the sole reason of delay in disposing of the matter, but needless to say that the wide power vested under the said provision has to be exercised with utmost care and caution. If only the court is convinced that to find out the truth involved in the case further examination of the witness (second respondent) is absolutely essential, the said power can be exercised. Therefore, no doubt the paramount requirement is that 'it is essential to just decision of the case'. Here the facts CRL MC 2365/2017 13 involved indicate that the court below has evaluated the situation correctly and exercised his discretion properly and hence it warrants no interference by this Court. The case is of the year 2007. The second respondent has already suffered the delay and further delay has to be avoided to do justice to all the parties concerned. More over, the impugned order is dated 23.02.2015, but the order has been challenged only on 20.03.2017. It cannot be lost sight of the fact that the accused were questioned under 313 Cr.P.C and the defence evidence was also over and at that stage, this petition was filed. Though fair trial is the foremost object of criminal procedure, the power under 311 Cr.P.C can be exercised judiciously to render a just decision but, before taking such a decision in favour of the party who moved it by adopting a liberal approach, the court has to make sure that it will not cause injustice to the victim. Here, the petitioner failed to convince the court that recalling of the second respondent is absolutely necessary to meet the ends CRL MC 2365/2017 14 of justice as well for the proper and correct adjudication of the case. Therefore, this petition deserves a dismissal. Accordingly, the petition stands dismissed. The trial court shall take all endeavor to dispose of the case without further delay. Sd/- ## **SHIRCY V., JUDGE** **ks** CRL MC 2365/2017 15 ## **APPENDIX** ## **PETITIONER'S/S' EXHIBITS:** ## **ANNEXURE A-** **TRUE COPY OF THE PETITION (CMP.NO.4240/14) IN C.C.NO.387/2007 OF THE JUDICIAL 1ST CLASS MAGISTRATE COURT-I, CHANGANACHERRY.** ## **ANNEXURE B-** **ORDER DATED 23/02/2015 IN CMP.NO.4240/2014 IN C.C.NO.387/2007 OF THE JUDICIAL 1ST CLASS MAGISTRATE COURT-I, CHANGANACHERRY.**