Padmanabhan v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR TUESDAY, THE 31ST DAY OF JULY 2018 / 9TH SRAVANA, 1940 Crl.MC.No. 1902 of 2018 C.C.NO.30/2016 OF COURT OF ENQUIRY COMMISSIONER AND SPECIAL JUDGE (VIGILANCE) MUVATTUPUZHA (DISTRICT) ## PETITIONER/ACCUSED NO:1 PADHMANABHAN, S/O. KESAVAMENON, AGED:-78 YEARS 33/A1,SREELAKSMI, OLD KAKKANADU ROAD,KOCHI. BY ADVS.SRI.B.RAMAN PILLAI (SR.) SRI.R.ANIL SRI.M.SUNILKUMAR SRI.SUJESH MENON V.B. SRI.T.ANIL KUMAR SRI.THOMAS ABRAHAM (NILACKAPPILLIL) SRI.E.VIJIN KARTHIK ## RESPONDENT/COMPLAINANT:: STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-682031. BY SHRI SURESH BABU THOMAS, ADDITIONAL DIRECTOR GENERAL OF PROSECUTION. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 31-07-2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.MC.No. 1902 of 2018 () ## APPENDIX ## PETITIONER(S)' EXHIBITS ANNEXURE A: A TRUE PHOTOCOPY OF MEMO FILED BY VENUGOPAL K.NAMBIAR. ANNEXURE B: TRUE PHOTOCOPY OF CMP 159/2018 IN C.C.NO.30/2016 OF COURT OF ENQUIRY COMMISSIONER & SPECIAL JUDGE (VIGILANCE), MUVATTUPUZHA. ANNEXURE C: TRUE PHOTOCOPY OF OBJECTION IN CMP 159/2018 IN C.C.MP.30/2016 OF COURT OF ENQUIRY COMMISSIONER & SPECIAL JUDGE (VIGILANCE), MUVATTUPUZHA. ANNEXURE D: CERTIFIED COPY OF ORDER DTD.22/2/2018 IN CMP NO.159/2018 IN C.C NO.30/2016 OF COURT OF ENQUIRY COMMISSIONER & SPECIAL JUDGE (VIGILANCE), MUVATTUPUZHA. ## RESPONDENTS EXHIBITS : NIL // True copy // PA to Judge ## **B. SUDHEENDRA KUMAR, J.** -------------------------------------- Crl.M.C. No.1902 of 2018 -------------------------------------Dated this the 31[st] day of July, 2018 ## **ORDER** The petitioner is the first accused in C.C.No.30 of 2016 on the files of the Court of the Enquiry Commissioner and Special Judge (Vigilance), Muvattupuzha. The offences alleged are offences under Sections 13 (1) (c) and (d) r/w Section 13 (2) of the Prevention of Corruption Act and Sections 409, 468, 471 and 477 A r/w Section 120 B IPC. 2. After closing the prosecution evidence, the accused was examined under Section 313 of Cr.P.C. Thereafter, the accused was called upon to enter on Crl.M.C. No.1902 of 2018 -2- defence. However, no evidence was adduced on the side of the accused. During the course of final argument, the prosecution filed C.M.P.No.159 of 2018, praying for recalling PW6 stating that there was no identification of the accused by the witness. The court below as per Annexure D order, allowed the said petition, against which this Crl.M.C. has been filed. 3. Heard both sides. 4. The learned counsel for the petitioner relied on the decision of this Court in Vijayadas K.V. v. State of Kerala [2017 (4) KHC 91] and argued that the recalling and the re-examination of a witness cannot be done to fill up the lacuna or to cover up the defect or to rectify the mistake crept in the evidence and in the said circumstances, the court below was not justified in Crl.M.C. No.1902 of 2018 -3- recalling PW6 for the purpose of identification of the witnesses. In Vijayadas K.V.(supra), the trial court had re-opened the evidence _suo motu_ after the final hearing and examined some witnesses who were already given up by the prosecution. Thereafter, the accused was examined under Section 313 of Cr.P.C. After legal formalities, the case was posted for judgment. At that time, the court re-opened the case again _suo motu_ by order under challenge in that case. In Vijayadas K.V. (supra), the court observed thus: “Of course, the trial court has to play an active role during the trial of the case and the court is not a mere spectator or an umpire during the trial of the case, but certainly not to this extent as the case was re-opened twice when posted for judgment.” Crl.M.C. No.1902 of 2018 -4- 5. In Vijayadas (supra), the case was re-opened twice suo motu by the court after posting the case for judgment. The facts in the present case are different from the facts in Vijayadas (supra). In this case, during the course of argument itself, the above C.M.P. was filed by the learned legal advisor. The Apex Court in Rejendra Prasad v. Narcotic Cell [1999 KHC 417] considered the term lacuna and held thus in paragraph 8: “Lacuna in the prosecution must be understood as the inherent weakness or a latent wedge in the matrix of the prosecution case. The advantage of it should normally go to the accused in the trial of the case, but an over sight in the management of the prosecution cannot be treated as irreparable lacuna. No party in a trial can be foreclosed from correcting errors. If proper evidence was not adduced or a relevant material was not brought on record due to any Crl.M.C. No.1902 of 2018 -5- inadvertence, the court should be magnanimous in permitting such mistakes to be rectified. After all, function of the criminal court is administration of criminal justice and not to count errors committed by the parties or to find out and declare who among the parties performed better.” 6. The Apex Court in Mannan Sk and others v. State of West Bengal and another [2014 KHC 4441] followed the above said ratio in Rejendra Prasad (supra). The Apex Court in Zahira Habibulla H.Sheikh and another v. State of Gujarat and others [AIR 2004 SC 3114] considered the scope of Section 311 and held thus: “Object of the Section is to enable the Court to arrive at the truth irrespective of the fact that the prosecution or the defence has failed to produce some evidence which is necessary for a Crl.M.C. No.1902 of 2018 -6- just and proper disposal of the case. The power is exercised and the evidence is examined neither to help the prosecution nor the defence, if the Court feels that there is necessity to act in terms of S.311 but only to sub-serve the cause of justice and public interest. It is done with an object of getting the evidence in aid of a just decision and to uphold the truth.” 7. In this case, the court below was convinced that the recalling of PW6 was essential for the just decision of the case. It appears that the evidence with regard to the identification could not be brought on record due to an inadvertence. Therefore, the court must be magnanimous in permitting such mistakes to be rectified, as the function of the criminal court is administration of criminal justice and not to count errors Crl.M.C. No.1902 of 2018 -7- committed by the parties. No party in a criminal trial can be foreclosed from correcting errors. Since the omission in the matter of identification occurred only due to an oversight, the said oversight in the of cannot be treated as management prosecution irreparable lacuna. The object of Section 311 Cr.P.C. is to enable the court to arrive at the truth, irrespective of the fact that the prosecution or the defence has failed to produce some evidence, which is necessary for a just and proper disposal of the case. Since the application for recalling the witness was necessitated only to rectify an inadvertent mistake on the part of the learned Public Prosecutor, it is the duty of the court to permit such mistake to be rectified. Permitting to rectify such mistakes cannot be equated with filling up of a lacuna in Crl.M.C. No.1902 of 2018 -8- the prosecution case. In view of the above reason, I am of the view that the court below was perfectly correct in permitting the prosecution to rectify the inadvertent mistake. In view of the above reason, I am of the view that the discretion exercised by the court below in this case under Section 311 of Cr.P.C cannot be said to be arbitrary or unreasonable, warranting interference by this Court. In the result, this Crl.M.C stands dismissed. **sd** **B. SUDHEENDRA KUMAR JUDGE** Scl/dl/31.07.18