Saleesh and Balan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE K.HARIPAL** **THURSDAY, THE 20[TH] DAY OF JANUARY 2022 / 30TH POUSHA, 1943** **CRL.MC NO. 5748 OF 2021** **CRMP 1463/2019 IN SC 6/2016 OF ADDITIONAL SESSIONS COURT,** ## **IRINJALAKUDA** ## **PETITIONER/ACCUSED 1 AND 2:** **1 SALEESH AGED 45 YEARS S/O.BALAN, RESIDING AT KOTTIKKAL HOUSE, MULANGU DESOM, THOTTIPAL VILLAGE, THOTTIPAL P.O., THRISSUR - 680 310.** **2 BALAN AGED 76 YEARS S/O.RAMAN, RESIDING AT KOTTIKKAL HOUSE, MULANGU DESOM, THOTTIPAL VILLAGE, THOTTIPAL P.O., THRISSUR - 680 310. BY ADVS. P.G.JAYASHANKAR P.K.RESHMA (KALARICKAL) REVATHY P. MANOHARAN N.K.SANATH KUMAR** ## **RESPONDENT/STATE:** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA.** **PP - SRI. M.C.ASHI** ## **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON** **01.12.2021, THE COURT ON 20.01.2022 PASSED THE FOLLOWING:** Crl.M.C.5748/2021 2 ## **O R D E R** Petitioners are the accused in S.C.6/2016 pending before the Additional Assistant Sessions Court, Irinjalakuda, where both of them face allegations under Sections 286, 337, 338 and 304 read with 34 of the IPC besides under Section 9(B)(1)(b) of the Explosives Act, 1884. The mishap had happened at 14:50 hours on 17.03.2014 at the upstairs of the residence of the 2[nd] petitioner bearing No.1/169 of Parappookara grama panchayat where they were running a smithy unauthorisedly using LPG, engaging workers, doing works in gold. It is stated that for the previous five years they were doing the unauthorised acts. That day a gas cylinder burst and in the consequent fire occurrence, eight employees lost their lives and ten others sustained severe burn injuries. The trial is under progress. Twenty witnesses have been examined and Exts.P1 to P55 were marked. While so, the Public Prosecutor moved Annexure-A2 application under Sections 91 and 311 of the Cr.P.C. seeking leave of the Court to produce additional documents and also to incorporate certain additional witnesses whose names were omitted to be incorporated in the original witness list. The witnesses included Station House Officer, Fire Station, Puthukkad, Sub Crl.M.C.5748/2021 3 Divisional Magistrate, Thrissur, Tahsildar, Inspector of Factories and Boilers, Secretary of the panchayat and four private individuals. Examination of official witnesses was sought to produce files relating to the reports prepared by the the respective departments touching the mishap occurred in the building of the 2[nd] petitioner. The application was opposed stating that it was an exercise for rectifying the mistake and to fill up the lacuna. By a cryptic order dated 22.11.2019 the Additional Assistant Sessions Judge allowed the application which was called in question before this Court in Crl.M.C.8781/2019. By Annexure-A5 order dated 24.02.2020 the learned Judge of this Court set aside that order and remanded the matter for fresh consideration. The Court noticed that when that order was passed, reasons were not noted for examination of additional witnesses, it also could not be inferred whether statement of such witnesses were recorded under Section 161 of the Cr.P.C. and reasons for not including them in the original witness list. So the Court observed that the learned Sessions Judge should bear in mind the dictum laid down in **K.V. Vijayadas v. State of Kerala [2018 Crl.L.J. 529]** and **Mannan S.K. and others v. State of West Bengal and another [AIR [2014 SC 2950].** Crl.M.C.5748/2021 4 2. According to the petitioners, pursuant to the said order the Public Prosecutor filed similar petitions under Sections 91 and 311 of the Cr.P.C. which are the verbatim reproduction of the earlier petition. Similarly, in Annexure-A9 order dated 26.10.2021 the Additional Assistant Sessions Judge did not advert to the specific directions issued by this Court on 24.02.2020. Therefore, according to the learned counsel, Annexure-A9 order also cannot stand judicial scrutiny. 3. According to the learned counsel, it is quite patent that the applications under Sections 91 and 311 of the Cr.P.C. were filed merely to fill up the lacuna, which cannot be approved. On the other hand, according to the learned Public Prosecutor, the Court has to consider the seriousness of the matter, the trial of the case is not completed and by examining such witnesses, no prejudice is going to cause to the petitioners. 4. Even though Annexure-A9 order dated 26.10.2021 did not advert to all the points referred to by this Court in the order dated 24.02.2020, I am of the definite opinion that having regard to the scope and purport of the provisions, there is absolutely nothing to interfere with the order under challenge. Crl.M.C.5748/2021 5 5. It is the accepted principle of law that the scope and object of the provisions under Section 311 of the Cr.P.C. is to enable the Court to find out the truth and to render a just decision after adverting to all relevant facts. Section 311 gives the Court very wide powers; it is a discretionary jurisdiction. No doubt such a discretion has to be exercised carefully and judiciously. Fair trial is the paramount object of criminal trial and it is the look out of the Court to ensure that such fairness is not hampered or threatened in any manner. Such fairness should be shown to the accused as well as to the prosecution. 6. The underlying object of Section 311 of the Cr.P.C. is that there may not be failure of justice on account of mistake of either party in bringing valuable evidence on record. The most determining factor is whether it is essential to render a just decision in the case. 7. Applications filed under Sections 91 and 311 of the Cr.P.C. have to be considered in the above setting. As rightly noticed by the learned Additional Assistant Sessions Judge, the petitioners are aware that after the mishap, various departments like Fire and Security, Factories and Boilers, Panchayat and Revenue had inspected the scene of occurrence and Crl.M.C.5748/2021 6 taken stock of the situation and made reports. Such reports have bearing in the facts in issue. Merely for the reason that witnesses were not included in the original witness list or they were not questioned under Section 161 of the Cr.P.C., it cannot be stated that it is an exercise to fill up the lacuna. Inadvertent mistakes crept in the prosecution evidence can be corrected at any time. Power to summon material witnesses for rendering just decision of the case can be exercised even when the case is posted for judgment. 8. As rightly pointed out by the learned Public Prosecutor, we cannot ignore the gravity of the offence alleged against the petitioners also. A huge explosion had taken place in the work site of the petitioners following which eight valuable lives were lost and serious injuries were caused to numerous other labourers. Trial is still in progress. The petitioners were not heard to say that summoning such additional witnesses or considering the reports produced by the officials would cause prejudice to them. No one has a case that such reports sought to be produced by the officials were created after the commencement of the proceedings. Therefore, in the quest for ascertaining the truth, summoning such witnesses and documents and examining them are not out of place. Crl.M.C.5748/2021 7 9. With due respect I may say that the facts of the decisions in **Vijayadas** and **Mannan** , quoted supra, are not similar to the facts in issue; those cases were rendered on different factual situations. 10. After hearing counsel on both sides, I do not find valid reasons to interfere with the order under challenge. The Criminal M.C. lacks merits and is dismissed. Sd/- **K.HARIPAL JUDGE** okb/18.1.22 //True copy// P.S. to Judge Crl.M.C.5748/2021 8 ## **APPENDIX OF CRL.MC 5748/2021** |PETITIONER ANNEXURES|| |---|---| |Annexure A1|TRUE COPY OF THE FINAL REPORT IN CRIME| ||NO.561/2014 OF PUTHUKKADU POLICE STATION,| ||TAKEN ON FILES BY THE ADDITIONAL ASSISTANT| ||SESSIONS JUDGE, IRINJALAKUDA AS SC NO.6/2016.| |Annexure A2|TRUE COPY OF THE PETITION FILED AS| ||CRL.M.P.NO.1463/2019, ALONG WITH THE LIST OF| ||WITNESS.| |Annexure A3|TRUE COPY OF THE OBJECTION FILED BY THE| ||PETITIONERS.| |Annexure A4|TRUE COPY OF THE ORDER DATED 22/11/2019 IN| ||CRL.M.P.NO.1463/2019 IN SC NO.6/2016.| |Annexure A5|TRUE COPY OF THE ORDER DATED 24/02/2020 IN| ||CRL.M.C.NO.8781/2019.| |Annexure A6|TRUE COPY OF THE PROCEEDINGS DATED 28/01/2021| ||IN SC NO.6/2016.| |Annexure A7|TRUE COPY OF THE PROCEEDINGS DATED 01/10/2021| ||IN SC NO.6/2016.| |Annexure A8|TRUE COPY OF THE PETITION DATED 06/10/2021| ||ALONG WITH THE LIST OF WITNESS DATED| ||05/10/2021.| |Annexure A9|CERTIFIED COPY OF THE ORDER DATED 26/10/2021| ||IN CRL.M.P.1463/2019 IN SC NO.6/2016.|