Raveena K v. State of Kerala and Others

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR. JUSTICE GOPINATH P. ``` ``` THURSDAY, THE 30[TH] DAY OF NOVEMBER 2023 / 9TH AGRAHAYANA, 1945 ``` ``` CRL.MC NO. 222 OF 2023 ``` ``` CRIME NO.444/2021 OF Kalpakanchery Police Station, Malappuram AGAINST THE ORDER/JUDGMENT CC 1200/2021 OF JUDICIAL MAGISTRATE OF FIRST CLASS ,TIRUR ``` ## `PETITIONER/DEFACTO COMPLAINANT:` ``` RAVEENA K AGED 25 YEARS D/O. VENUGOPALAN, KANJEERI HOUSE, KURUMBATHOOR P.O., THIRUR TALUK, MALAPPURAM DISTRICT, PIN: 676 301, PIN - 676301 BY ADVS. K.R.VINOD M.S.LETHA NABIL KHADER CHITHRA C.EDADAN ``` ## `RESPONDENTS/ACCUSED 1 TO 3:` ``` 1STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 2MANIKANDAN AGED 31 YEARS S/O. NARAYANAN, ANIMANGALAM, POOKATTIRI, VALANCHERY, MALAPPURAM DISTRICT PIN- 676552, PIN - 676552 3SARASWATHI AGED 55 YEARS W/O NARAYANAN, ANIMANGALAM, POOKATTIRI, VALANCHERY, MALAPPURAM DISTRICT PIN- 676552, PIN - 676552 4NIDHIN AGED 28 YEARS S/O NARAYANAN ANIMANGALAM, POOKATTIRI, VALANCHERY, MALAPPURAM DISTRICT PIN- 676552, PIN - 676552 BY ADVS. K.P. SUDHEER ADVOCATE J.RAMKUMAR(K/376/2013) ``` ## `SRI VIPIN NARAYAN (SR PP)` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 30.11.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` ``` Crl.M.C. NO.222 OF 2023 ``` ``` 2 ``` ## **ORDER** Petitioner is the defacto complainant in Crime No.444/2021 of Kalpakanchery Police Station, Malappuram which is now pending as C.C.No.1200 of 2021 on the file of the Judicial First Class Magistrate Court No.1, Tirur. The petitioner has approached this Court being aggrieved by the fact that Annexure A5 application filed by the accused under Section 311 Cr.P.C. has been allowed by the learned Magistrate casually and without giving any reasons for allowing that application. 2. The learned counsel referred to Annexure A5 application and pointed out that the only reason mentioned in Annexure A5 is that certain relevant questions were not put to the defacto complainant, who was one of the witnesses sought to be recalled for further examination. It is submitted that in almost identical circumstances this Court in _**Parkson Estate and Industries, Cochin and Another vs. M/s. Trinity Trading, Kochi and Another**_ ``` Crl.M.C. NO.222 OF 2023 ``` ``` 3 ``` ## [2016 (1) KHC 278] held as follows: “9. There is no dispute regarding the power of the Court under S.311 of Code of Criminal Procedure to recall any witness who has already been examined or summon further witnesses if the Court is satisfied that recalling and examining the witnesses are necessary for the purpose of proper adjudication of the case. This power can even be exercised by the Court suo moto if such power has to be exercised by the Court to arrive at a just conclusion of the allegations made and to find out the truth of the allegations made by both parties. Further in the decision reported in Rajaram Prasad Yadav v State of Bihar and Others, 2013 KHC 4513: AIR 2013 SC 3081: 2013 (2) KLD 329: 2013 (8) SCALE 316: 2013 (3) KLT SN 49: 2013 CriLJ 3777: 2013 (14) SCC 461: 2013 (128) AIC 29, relying on several decisions of the Apex Court as well as various Courts, the Apex Court has formed certain guidelines under what circumstances Court can invoke S.311 of Code of Criminal Procedure in paragraph 23 of the judgment which read as follows: "From a conspectus consideration of the above decisions, while dealing with an application under S.311 CrPC read along with S.138 of the Evidence Act, we feel the following principles will have to be borne in mind by the Courts: a. Whether the Court is right in thinking that the new evidence is needed by it? Whether the evidence sought to be led in under S.311 is noted by the Court for a just ``` Crl.M.C. NO.222 OF 2023 ``` ``` 4 ``` ## decision of a case? b. The exercise of the widest discretionary power under S.311, CrPC should ensure that the judgment should not be rendered on inchoate, inconclusive speculative presentation of facts, as thereby the ends of justice would be defeated. c. If evidence of any witness appears to the Court to be essential to the just decision of the case, it is the power of the Court to summon and examine or recall and re-examine any such person. d. The exercise of power under S.311 CrPC should be resorted to only with the object of finding out the truth or obtaining proper proof for such facts, which will lead to a just and correct decision of the case. e. The exercise of the said power cannot be dubbed as filling in a lacuna in a prosecution case, unless the facts and circumstances of the case make it apparent that the exercise of power by the Court would result in causing serious prejudice to the accused, resulting in miscarriage of justice. f. The wide discretionary power should be exercised judiciously and not arbitrarily. g. 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. h. The object of S.311 CrPC simultaneously imposes a duty on the Court to determine the truth and to render a just decision. ``` Crl.M.C. NO.222 OF 2023 ``` ``` 5 ``` i. The Court arrives at the conclusion that additional evidence is necessary, not because it would be impossible to pronounce the judgment without it, but because there would be a failure of justice without such evidence being considered. j. Exigency of the situation, fair play and 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 materials was not brought on record due to any inadvertence, the Court should be magnanimous in permitting such mistakes to be rectified. k. 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 sage to err in favour of the accused getting an opportunity rather than protecting at the cost of the accused. The Court should bear in mind that improper or capricious exercise of such a discretionary power, may led to undesirable results. l. The additional evidence must not be received as a disguise or to change the nature of the case against any of the party. m. The power must be exercised keeping in mind that the evidence that is likely to be tendered, would be germane to the issue involved and also ensure that an opportunity of rebuttal is given to the other party. n. The power under S.311, CrPC must therefore, be invoked by the Court only in order to meet the ends of justice for ``` Crl.M.C. NO.222 OF 2023 ``` ``` 6 ``` 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 goal, as well as a human right." 10. In all the decisions relied on by both the counsel the same principle has been reiterated. Further in the decision reported in Natasha Singh v. Central Bureau of Investigation, 2013 KHC 4386: 2013 (5) SCC 741: 2013 (2) KLD 152: 2013 (6) SCALE 676: 2013 CriLJ 3346: 2013 (126) AIC 35, the Apex Court also held that the power under S.311 of the Code of Criminal Procedure is to be exercised judicially and not arbitrarily so as to enable the Court to determine the truth and to render a just decision. Further in the decisions relied on by both the sides cited supra, the Courts have held that merely because certain questions were not put to the witness by an earlier counsel and the subsequent counsel found that as a lacuna in the conduct of the case which according to him is likely to affect the defence is also not a ground for recalling the witnesses already examined. Further it is also settled in these decision that mere filing of the application without making a sufficient foundation for filing such application to recall the witness, the application should not be allowed for mere asking only on the ground that liberal view has to be taken under S.311 of the Code of Criminal Procedure which practice has been deprecated by the Supreme Court of ``` Crl.M.C. NO.222 OF 2023 ``` ``` 7 ``` allowing the application under S.311 of the Code for mere asking on the ground of change of counsel failure to put relevant questions by previous counsel without proving any specific injustice caused, if such a prayer cannot allowed in the latest decision reported in Ali v. Shivkumar Yadav and Others, 2015 KHC 4602 : 2015 (9) SCALE 649: 2015 (5) KHC SN 3: 2015(2)KLD 662: 2015(4)KLTSN56: AIR 2015 SC 3501: 2015 CriLJ 4640.” It is submitted that apart from the fact that the reasons mentioned in Annexure A5 are not sufficient reasons to exercise the power under Section 311 Cr.P.C., the learned Magistrate has in an extremely casual manner endorsed on the reverse side of Annexure A5 application that “ _**petition allowed**_ ”. 3. Heard the learned Public Prosecutor and the learned counsel appearing for respondents 2 to 4. Though the learned counsel appearing for respondents 2 to 4 made a valiant effort to sustain the order passed by the learned Magistrate on Annexure A5, I must necessarily set aside the order passed by the learned Magistrate on Annexure A5 ``` Crl.M.C. NO.222 OF 2023 ``` ``` 8 ``` on the short ground that the order does not reflect any application of mind to the relevant principles upon which the power under Section 311 Cr.P.C. must be exercised by the Court. The learned Magistrate has very casually and without being guided by any principle casually recorded that the petition is allowed. I must observed that this is least expected in a judicial proceeding where the court was considering whether an application filed under Section 311 Cr.P.C ought to have been allowed or not. As observed by this court in _**Parkson Estate and Industries**_ (supra) the power is to be exercised judiciously and not capriciously. Also see the judgment of the Honourable Supreme Court in _**Mohanlal Shamji Soni v. Union Of India**_ [1991 Supp (1) SCC 271]. Therefore I have no hesitation to set aside the order passed by the learned Magistrate on Annexure A5 application. In the light of the above discussion the order passed on Annexure A5 application will stand set aside. Annexure A5 application shall stand restored to the file of the Judicial First Class Magistrate Court -I, Tirur. The ``` Crl.M.C. NO.222 OF 2023 ``` ``` 9 ``` learned Magistrate shall reconsider Annexure A5 application after hearing the defacto complainant/petitioner as well as the accused and take a decision on whether the application under Section 311 Cr.P.C. should be allowed or not. I make it clear that I have not expressed any opinion on the merits of the matter. It is for the learned Magistrate to pass fresh orders in accordance with law. **Sd/GOPINATH P. JUDGE** SSK/30/11 ``` Crl.M.C. NO.222 OF 2023 ``` ``` 10 ``` ## `APPENDIX OF CRL.MC 222/2023` ## `PETITIONER ANNEXURES` - `Annexure A1 THE COPY OF THE FINAL REPORT IN CC NO. 1200/2021 IN THE FILES OF JUDICIAL FIRST CLASS MAGISTRATE COURT NO.I, TIRUR` - `Annexure A2 THE COPY OF THE ORDER IN O.P(CRL) NO. 85/2022 DATED 17.03.2022` - `Annexure A3 THE COPY OF THE EXTENSION ORDER IN O.P(CRL) NO. 85/2022 DATED 10.11.2022` - `Annexure A4 THE CERTIFIED COPY OF THE DEPOSITION OF THE PETITIONER AS PW1 IN CC NO. 1200/2021 IN THE FILES OF JUDICIAL FIRST CLASS MAGISTRATE COURT NO.I, TIRUR DATED 04.07.2022 AND 13.07.2022` - `Annexure A5 THE CERTIFIED COPY OF CMP NO. 11835/2022 FILED BY THE RESPONDENTS NO. 2 TO 4 PRAYING TO RECALL PW1 AND OTHER WITNESSES AND THE ORDER SEEN WRITTEN BY THE LEARNED MAGISTRATE ON THE BACKSIDE OF THE PETITION` - `Annexure A5 THE COPY OF ORDER SEEN WRITTEN BY THE LEARNED A MAGISTRATE ON THE BACKSIDE OF CMP NO.11835/2022 FILED BY THE RESPONDENTS 2 TO 4 DATED 28-12-2022` - `Annexure A6 THE ORIGINAL OF THE SUMMONS ISSUED TO THE PETITIONER ASKING HER TO APPEAR BEFORE THE COURT TO ADDUCE EVIDENCE ON 10.01.2023` - `Annexure A7 THE COPY OF THE JUDGMENT IN PARKSON ESTATE AND INDUSTRIES, COCHIN & ANOTHER VS TRINITY TRADING, COCHIN AND ANOTHER [ 2016(1) KHC 278]`