S. MOHAN KUMAR & R. REGHUNATHAN v. CENTRAL BUREAU OF INVESTIGATION

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN FRIDAY, THE 23RD DAY OF MAY 2014/2ND JYAISHTA, 1936 OP(Crl.).No. 91 of 2014 (Q) -----------------------------------CRL.M.P.NO.95 OF 2014 IN C.C.NO.32 OF 2011 OF THE COURT OF SPECIAL JUDGE (CBI/SPE)-I, THIRUVANANTHAPURAM PETITIONER(S): --------------------- 1. S. MOHAN KUMAR, S/O.SANKARAN PILLA, USHUS, ADINAD SOUTH, KATTIKADAV P.O, KARUNAGAPALLY, KOLLAM DISTRICT, NOW WORKING AS SUB INSPECTOR OF POLICE, PARIPPALLY POLICE STATION. 2. R.REGHUNATHAN S/O.RAGHAVAN, KARTHIKA, MANAYIL, KULANGARA, THIRUMULLAVARAM, P.O. KOLLAM DISTRICT (RETIRED AS HEAD CONSTABLE, Q 3588). BY ADV. SRI.C.S.MANU RESPONDENT(S)/COMPLAINANT: -------------------------------------------- CENTRAL BUREAU OF INVESTIGATION, ECONOMIC OFFENCES WING, 3RD FLOOR, A WING, RAJAJI BHAVAN, BASANT NAGAR, CHENNAI 600 090 REPRESENTED BY THE INSPECTOR OF POLICE, (THROUGH THE PUBLIC PROSECUTOR, CBI, THIRUVANANTHAPURAM) BY SRI.P.CHANDRASEKHARA PILLAI, SC, C.B.I. THIS OP (CRIMINAL) HAVING COME UP FOR ADMISSION ON 23-05-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(Crl.).No. 91 of 2014 (Q) ------------------------------------ ## APPENDIX PETITIONERS’ EXHIBITS : ---------------------------------- EXHIBIT P1. COPY OF THE CHARGE SHEET IN CC NO.32 OF 2011 ON THE FILES OF THE COURT OF SPECIAL JUDGE CBI/SPE)-1, THIRUVANANTHAPURAM FILED BY THE RESPONDENT. EXHIBIT P2. COPY OF THE CRL.M.P NO.95 OF 2014 IN CC NO.32 OF 2011 ON THE FILES OF THE COURT OF SPECIAL JUDGE (CBI/SPE)- 1 AT THIRUVANANTHAPURAM FILED BY THE PETITIONER. EXHIBIT P3. COPY OF THE OBJECTION FILED BY THE RESPONDENT IN CC NO.32 OF 2011 ON THE FILES OF THE COURT OF SPECIAL JUDGE (CBI/SPE)- 1, THIRUVANANTHAPURAM. EXHIBIT P4. COPY OF THE ORDER DATED 5.5.14 IN CRL.M.P. NO.95 OF 2014 IN CC NO.32 OF 2011 ON THE FILES OF THE COURT OF SPECIAL JUDGE (CBI/SPE)-1, THIRUVANANTHAPURAM. RESPONDENT’S EXHIBITS : -------------------------------------- NIL // True Copy // P.A. To Judge DSV/26/05 ## K. RAMAKRISHNAN, J. ---------------------------------------- O.P.(Crl).No. 91 of 2014 ---------------------------------------Dated this the 23[rd] day of May, 2014 **==> picture [101 x 13] intentionally omitted <==** This O.P.(Crl.) is filed by the petitioners, who are accused Nos.3 and 4 before the Special Judge (CBI/SPE)-1 at Thiruvananthapuram in C.C.No.32 of 2011 to set aside the order in Crl.M.P.No.95 of 2014 passed by the Special Judge under Article 227 of the Constitution of India. 2. It is alleged in the petition that petitioners are accused Nos.3 and 4 respectively in C.C.No.32 of 2011 on the files of the Special Judge (CBI/SPE)-1 at Thiruvananthapuram. There are altogether 4 accused in the case. The case against the 1[st] accused has been split up as he is reported to be absconding. The accused No.2 and petitioners are facing trial. The respondent investigated the case and filed the charge sheet against the accused persons including the petitioners alleging commission of the offences under Sections 120B, 419, 420, 467, 468 and Section 471 of the Indian Penal Code and Section 13 (2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 and Section 12(1)(b) of the Passport Act, 1967. After completion of the prosecution evidence and examination of the accused under O.P.(Crl).No. 91 of 2014 2 Section 313 of the Code of Criminal Procedure and after adducing defence evidence, the petitioners filed Exhibit P2 application under Section 311 of the Code of Criminal Procedure to recall PW19 for further cross-examination and that was dismissed by the learned Special Judge as per Exhibit P4 order without assigning any proper reason. That order is being challenged by the petitioners by filing this petition. 3. Heard Sri. Manu, the learned counsel for the petitioners and Sri.P.Chandrasekhara Pillai, the Special Prosecutor appearing for the respondent. 4. The learned counsel for the petitioners submitted that the case of the prosecution was that the petitioners being the Writer and the Assistant Writer of Kollam Special Branch had prepared the passport verification reports and submitted before the Deputy Superintendent of Police for onward transmission to the Passport Office for necessary action for getting the passport for the 1[st] accused in the case and according to the prosecution, they have without conducting any verification falsely created the verification report with the connivance of the 1[st] accused for getting unlawful gain for him and thereby they have also along with the other accused persons committed the offences. When O.P.(Crl).No. 91 of 2014 3 PW19 was examined, the 3[rd] accused was in Assam and crossexamination of the witness was conducted in his absence. Only now certain facts were brought to the notice of the defence counsel which were omitted to be put and clarification is obtained from PW19 and for that purpose, he had filed the application under Section 311 of the Code of Criminal Procedure. The learned Special Judge, without appreciating the circumstances properly, dismissed the application by the impugned Exhibit P4 order. According to the learned counsel, this will cause prejudice to the accused. Further, he had relied on a decision in **P.Sanjeeva Rao v. State of Andhra Pradesh** reported in **(2012) 7 Supreme Court Cases 56** in support of his case. 5. On the other hand, Sri. Sri.P.Chandrasekhara Pillai, the Special Prosecutor appearing for the respondent CBI submitted that it is not a case where no opportunity was given to the accused to cross-examine the witness. But the defence counsel also had no case that no opportunity was given and the witness was not cross-examined. But in fact, he was cross-examined at length even in the absence of the accused. Further, no particular instances were mentioned in the petition which enables the accused to get the benefit under Section 311 of the Code of O.P.(Crl).No. 91 of 2014 4 Criminal Procedure to recall the witness. So under the circumstances, the order passed by the learned Special Judge does not call for any interference. 6. I have considered the rival contentions of both parties. 7. It is an admitted fact that the petitioners are accused Nos. 3 and 4 in C.C.No.32 of 2011 on the files of the Special Judge (CBI/SPE)-I, Thiruvananthapuram. It is also an admitted fact that the prosecution witnesses were examined and examination of the accused was completed. The defence also examined witnesses and it was posted for hearing of the case. It is also admitted by the learned counsel for the petitioners that the defence witnesses were examined and certain registers were marked through those witnesses. According to the counsel for the petitioners, certain facts which ought to have been put to the witness PW19 could not be put to him as the 3[rd] accused was not available at that time and certain documents were handed over to the counsel only later. So the filing of the application was necessitated. 8. Though such submissions were made by the counsel for the petitioners, in Exhibit P2 petition filed by the accused before the court below for recalling the witness, nothing has been mentioned about those aspects. Further, according to the learned O.P.(Crl).No. 91 of 2014 5 Special Prosecutor appearing for the respondent, the role of PW19 is only forwarding the verification report that has been sent by the accused persons to the passport authorities and nothing more. Further in this case, defence counsel has no case that no opportunity was given to the present petitioners to cross-examine the witness. The learned counsel for the petitioners submitted that in ground (c) it was mentioned that the reason for not explaining the circumstances which warranted the filing of the application. But it may be mentioned here, that is not a ground especially when an opportunity has already been availed by the accused to cross-examine the witness in a meticulous manner. 9. Further, Section 311 of the Cr.P.C. 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 person already examined; and the Court shall summon and examine or recall the reexamine any such person if his evidence appears to it to be essential to the just decision of the case.” Section 311 gives ample power for the court to recall any witness at any stage, if the court feels that the examination of that O.P.(Crl).No. 91 of 2014 6 witness is required in the interest of justice. But in this case no reason has been stated by the petitioners or no circumstances have been made out by the petitioners in the petition for recalling the witness who has already been examined and subjected to cross-examination by the counsel for the defence, to recall him later to elucidate things which the court feels necessary for proper adjudication of the case. Even now the petitioners have not produced any documents or shown any convincing circumstances which requires the recalling of the witness for further cross-examination as claimed by the counsel for the petitioners for the Court to invoke the special penal under Section 311 of the Code of Criminal Procedure. The learned Special Judge has considered all the aspects in the impugned order and rightly dismissed the application. 10. The dictum laid down in the decision reported in **P.Sanjeeva Rao's case (supra)** relied on by the counsel for the petitioners is not applicable to the facts of this case. That was a case where the witness was not cross-examined at all. The crossexamination of the witnesses were deferred to a later stage and the circumstance were explained by the counsel before the Honourable Supreme Court and considering the nature of the 7 O.P.(Crl).No. 91 of 2014 case, the Honourable Supreme Court accepted the affidavit of the counsel and allowed the prayer for recalling the witness. That is not a case in hand. 11. I do not find any reason to vary from the impugned Exhibit P4 order passed by the court below to grant an opportunity to the petitioners to recall the witness as claimed by them in the petition invoking the penal under Section 311 of the Code of Criminal Procedure. So the petition lacks merits and the same is liable to be dismissed. In the result, this original Petition (Criminal) is dismissed. Office is directed to communicate this order to the concerned court immediately. Sd/- K. RAMAKRISHNAN, JUDGE. DSV/24/05 O.P.(Crl).No. 91 of 2014 8