High Court of KeralaSingle Judge2017-02-16Dismissed

Saheel and MujeeB v. State of Kerala

Case / Petition Number:OP(Crl.) No. 90 of 2017 (Q)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Raja Vijayaraghavan V
Judgment Date: 2017-02-16
Court Decision / Holding: This petition will stand dismissed. The court held that the order of the Magistrate rejecting the Section 311 Cr.P.C. recall petition is not liable to be interfered with, and the recall of PW7 was not necessary for a just decision.
Final Disposition: Dismissed

Parties to the Case

Appellants / Petitioners

Saheel
MujeeB

Respondents

State of Kerala, represented by Public Prosecutor, High Court of Kerala, Ernakulam

Legal Representation & Advocates

Counsels for Petitioners

• T. N. Suresh
• V. S. Anu Mon
• A. S. Chinju Duth
• Dhanuja Vettathu

Counsels for Respondents

• M. K. Pushpalatha

Case Synopsis & Summary

This is a High Court of Kerala judgment under OP(Crl.) No. 90 of 2017 (Q) arising from C.C. No. 563 of 2015 before the Judicial Magistrate of First Class, Njarakkal. Accused Nos. 1 and 2 (Saheel and MujeeB) challenge a Magistrate’s order rejecting their Section 311 Cr.P.C. application to recall PW7 for further cross-examination in the trial concerning charges under IPC sections 354, 427, 294(b), 448, 323 and 506(i) read with 34 of the IPC. The petition contends that material omissions and contradictions surfaced in the cross-examination of PWs 1 and 2, which were not adequately brought out earlier due to inadvertence by the defence, thereby risking failure of justice if PW7 is not recalled to clarify these points. The State/Prosecution counters that there are no substantial grounds to invoke 311 Cr.P.C. and cites authorities including Ravinder v. State of Haryana, Parkson Estate & Industries v. Trinity Trading, and relevant Kerala decisions to argue against routine recall. The court stresses that Section 311 must be exercised with circumspection and only when essential to a just decision, not to fill lacunae or to prejudge the defense. It concludes that PW7’s recall is not necessary, upholds the lower court’s denial of the application, and dismisses the petition. The decision reinforces cautions on the ends of justice and the limited, judicious use of 311 Cr.P.C.

Provisions of Law Cited

IPC: 354, 427, 294(b), 448, 323, 506(i) read with 34CrPC: Section 311CrPC: Section 161CrPC: Section 162

Legal Doctrines & Maxims

Ends of justice
Circumspection in the exercise of Section 311 CrPC
Power under Section 311 CrPC must not be used to fill lacunae or to cause prejudice to the defense
Untrammelled and arbitrary exercise of power is impermissible
Competence of counsel is a subjective factor and cannot easily justify recalling a witness

Submissions & Arguments

Contentions of Appellants / Petitioners

The petition argues that, although PW1 and PW2 were extensively cross-examined, material omissions and contradictions surfaced later in the proceedings and were not properly highlighted to the investigating officer when PW7 was examined. It contends that insufficient cross-examination and inadvertent omissions warrant recall under Section 311 Cr.P.C. to ensure a just decision and to prevent failure of justice by depriving the defense of full testing of the witnesses’ credibility. The applicants rely on established jurisprudence (including Tahsildar Singh guidance on Section 162, and cases emphasizing circumspection) to argue that the recall power should be exercised only to secure justice, not to tilt the trial in their favor or to coerce retrial. They highlight the need to reconcile fairness with procedural efficiency and stress that the attempt is not to reopen the entire case but to clarify material points essential to the just resolution of the matter.

Contentions of Respondents

The State contends that there are no substantial grounds to exercise the discretionary power under Section 311 Cr.P.C., arguing that recalling PW7 would amount to retrial or unfairly prejudice the prosecution’s case. It argues that the defense had ample opportunities to cross-examine and that there is no missing or new material that would alter the essential issues in the case. The State relies on Supreme Court and Kerala decisions to emphasize that recall should be an exceptional measure, used only to meet ends of justice for strong, valid reasons and not as a routine remedy to fill gaps. It also notes that many of the alleged omissions in PWs 1 and 2 were not demonstrated in a way that would affect the core issues, and that invoking 311 Cr.P.C. in these circumstances could disrupt the trial and prejudice the accused already facing serious charges. The respondents urge adherence to the principle of circumspection and the protection of the trial’s integrity.

Cited Precedents (5)

Case Name	Citation	Treatment	Explanation
Ravinder v. State of Haryana	2011 Crl.L.J 1705	Mentioned Only	Cited to illustrate a point in argument about recall, but the court did not rely on its holdings to decide the case.
Parkson Estate & Industries v. Trinity Trading, Cochin & Another	2016(1) KHC 278	Mentioned Only	Cited by counsel to support the opposing argument; the court does not base its decision on this case.
AG v. Shiv Kumar Yadav and Another	AIR 2015 SC 3501	Positive	Apex Court held that the prayer to recall already examined witnesses cannot be countenanced as a matter of course; the Kerala High Court uses this to emphasize cautions in invoking 311 Cr.P.C.
State of Haryana v. Ram Meher and Others	2016 (2) KLD 547	Positive	Authority cited to support that Section 311 should be invoked only to meet ends of justice with strong reasons and exercised with care.
Tahsildar Singh v. State of U.P.	AIR 1959 SC 1012	Mentioned Only	Cited regarding restrictions on questions under Section 162 Cr.P.C.; used as background authority rather than central to the decision.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **THURSDAY, THE 16TH DAY OF FEBRUARY 2017/27TH MAGHA, 1938** **OP(Crl.).No. 90 of 2017 (Q) ----------------------------** ## **AGAINST CC 563/2015 of TEMPORARY JUDL. FIRST CLASS MAGISTRATE COURT, NJARAKKAL** **PETITIONERS/ACCUSED: ---------------------** **1. SAHEEL, AGED 43 YEARS, S/O. ABDUL KAREEM, AADIL MANZIL, NCC JUNCTION, THURAVUR, KUTHIYATHODE VILLAGE, ALAPPUZHA DISTRICT.** **2. MUJEEB, AGED 39 YEARS, S/O. ABDUL KAREEM, AADIL MANZIL, NCC JUNCTION, THURAVUR, KUTHIYATHODE VILLAGE, ALAPPUZHA DISTRICT.** **BY ADVS.SRI.T.N.SURESH SRI.V.S.ANU MON SMT.A.S.CHINJU DUTH SMT.DHANUJA VETTATHU** **RESPONDENT/STATE: --------------------** **STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY GOVERNMENT PLEADER SMT.M.K.PUSHPALATHA** **THIS OP (CRIMINAL) HAVING COME UP FOR ADMISSION ON 16-022017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **OP(Crl.).No. 90 of 2017 (Q) ----------------------------** ## **APPENDIX** |**PETITIONER(S)' EXHIBITS**|**PETITIONER(S)' EXHIBITS**| |---|---| |**-----------------------**|| |**EXT.P1**|**TRUE COPY OF THE DEPOSITION OF PW7 DATED 13/05/2016**| |**EXT.P2**|**TRUE COPY OF THE DEPOSITION OF PW6**| |**EXT.P3**|**TRUE COPY OFTHE CRL.M.P 49/2017 DATED 11/01/2017**| |**EXT.P4**|**TRUE COPY OF THE ORDER DATED 20/01/2017 IN CRL.M.P.**| ||**49/2017 OF THE JFCM COURT, NJARAKKAL**| |**EXT.P5**|**TRUE COPY OF THE FIS STATEMENT DATED 19.2.2010**| |**EXT.P6**|**TRUE COPY OF THE DEPOSITION OF PW1**| |**EXT.P7**|**TRUE COPY OF THE 161 STATEMENT OF PW2**| |**EXT.P8**|**TRUE COPY OF THE DEPOSITION OF PW2**| |**RESPONDENT(S)' EXHIBITS**|| |**-----------------------**|| ## **NIL** **/TRUE COPY/** **VPS PS TO JUDGE** ## **RAJA VIJAYARAGHAVAN.V, J ---------------------------------------O.P.(Crl.) No.90 of 2017** ## **----------------------------------------Dated this the 16[th] day of February, 2017** ## **JUDGMENT** - 1.The petitioners herein are the accused Nos.1 and 2 in C.C. No.563 of 2015 on the file of the Judicial Magistrate of First Class, Njarakkal. They face indictment under sections 354, 427, 294(b), 448, 323, 506(i) read with 34 of the IPC. - 2.In the course of proceedings, a petition under Section 311 of the Code of Criminal Procedure was filed by the petitioners to recall PW7 for the purpose of subjecting him to further cross examination. By the impugned order, the learned Magistrate has rejected the prayer. - 3.Heard the learned counsel appearing for the petitioners and the learned Public Prosecutor. - 4.Essentially, the contention advanced by the learned O.P.(Crl) 90/2017 2 counsel is that several material omissions and contradictions were brought out while cross examining PWs 1 and 2. However, due to inadvertence, the counsel appearing for the petitioners omitted to bring these aspects to the notice of the investigating officer while he was examined as PW7. According to the learned counsel, failure of justice would be the result if an opportunity is not granted to them. 5.The contentions of the learned counsel appearing for the petitioners were countered by the learned Public Prosecutor. It was submitted that sufficient grounds have not been made out to enable the court to exercise the powers under Section 311 of the Code. Referring to the case of **Ravinder v. State of Haryana** (2011 Crl.L.J 1705), it was contended that recalling of a prosecution witness on the ground that the earlier counsel could not cross-examine the witness on certain points cannot be O.P.(Crl) 90/2017 3 sustained. Reliance is also placed on a decision of this Court in **Parkson Estate & Industries, Cochin and Another** v. **M/s.Trinity Trading, Kochi and Another** [2016(1) KHC 278] to bring home his point. - 6.I have considered the rival submissions and have gone through the materials on record. 7. Section 311 of the Code empowers the Court at any stage of any inquiry, trial or other proceedings under the Code to summon any person as a witness or examine any person in attendance, though not summoned as witness or recall and re-examine already examined witness. The second part of the Section uses the word 'shall'. It says that the Court shall summon and examine or recall or reexamine any such person if his evidence appears to it to be essential to the just decision of the case. The words 'essential to the just decision of the case' are the key words. The Court must form an opinion that for the just O.P.(Crl) 90/2017 4 decision of the case recall or re-examination of the witness is necessary. Since the power is wide, it's exercise has to be done with circumspection. It is trite that wider the power greater is the responsibility on the Courts which exercise it. The exercise of this power cannot be untrammelled and arbitrary but must be only guided by the object of arriving at a just decision of the case. Power must be exercised judiciously and not capriciously or arbitrarily, as any improper or capricious exercise of such power may lead to undesirable results. An application under Section 311 of Cr.P.C. must not be allowed only to fill up a lacuna in the case of the prosecution, or of the defence, or to the disadvantage of the accused, or to cause serious prejudice to the defence of the accused, or to give an unfair advantage to the opposite party. Further, the additional evidence must not be received as a disguise for retrial, or to change the nature of the case against O.P.(Crl) 90/2017 5 either of the parties. Such a power must be exercised, provided that the evidence that is likely to be tendered by a witness, is germane to the issue involved. 8.In the case on hand, PW7 is sought to be recalled on the ground that the counsel who had cross-examined, the said officer had omitted to put omissions and contradictions brought out in the evidence of PWs 1 and 2. I have gone through the depositions of PWs 1 and 2 and it is pellucid that despite extensive and searching cross examination, the defence was not able to bring out any omission or contradiction in their evidence. On the other hand, it appears from the evidence that certain questions barred under Section 162 of the Code has been put to the witnesses. (See **Tahsildar Singh v. State of U.P.** [AIR 1959 SC 1012]) 9.In **AG v. Shiv Kumar Yadav and Another** [AIR 2015 SC 3501], wherein it was held that the prayer to recall the O.P.(Crl) 90/2017 6 witnesses already examined on the plea that the defence counsel was not competent and had not effectively crossexamined the witness cannot be countenanced. After elaborately dealing with this aspect, the Apex Court had held that the competence of a counsel was a subjective matter and the plea of incompetence cannot be easily accepted. It was held that recall of witnesses is not a matter of course and the discretion given to the court has to be exercised judiciously to prevent failure of justice and not arbitrarily. Same view was taken by the Apex Court in **State of Haryana v. Ram Meher and Others** (2016 (2) KLD 547) wherein also it was held that the power under section 311 of the Code must be invoked 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. O.P.(Crl) 90/2017 7 10.Having regard to the above settled position, I am of the considered view that the order of the court below rejecting the application filed under section 311 of the Code is unexceptionable. I find no reason to interfere. This petition will stand dismissed. **Sd/RAJA VIJAYARAGHAVAN.V. JUDGE** vps