Sebastian P John v. Sub Inspector of Police, CBI ACB Kochi Unit, Ernakulam

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: P. V. Kunhikrishnan
Judgment Date: 2023-10-03
Court Decision / Holding: The Criminal Miscellaneous Case is allowed; CMP No.950/2023 is allowed; the learned Magistrate is directed to summon PW9, PW10, PW17, PW18, PW35, PW38 for further cross-examination; the petitioner shall pay batta for witnesses’ appearance; if any witness is abroad, the Magistrate shall arrange for examination via video conference.
Final Disposition: Petition Allowed; directions issued to recall witnesses and permit cross-examination; CMP No.950/2023 allowed; batta payable; video conferencing for abroad witnesses.

Parties to the Case

Appellants / Petitioners

Sebastian P John

Respondents

Sub Inspector of Police, CBI ACB Kochi Unit, Kathrikadavu, Kaloor, Ernakulam

Legal Representation & Advocates

Counsels for Petitioners

• S. Rajeev
• V. Vinay
• M.S. Aneer
• Sarath K.P.
• Prerith Philip Joseph

Counsels for Respondents

• Standing Counsel of CBI, High Court of Kerala

Case Synopsis & Summary

This is a Criminal Miscellaneous Case filed by Sebastian P John, the 1st accused in CC No. 69/2012, challenging Annexure-A2 order of the Chief Judicial Magistrate, Ernakulam. The petitioner contends that during the trial he was represented by a lawyer who was later replaced; after his release on bail he engaged a new advocate, and as a result several vital questions were not put to PW9, PW10, PW17, PW18, PW35 and PW38. An application under Section 311 Cr.P.C. to recall those witnesses was dismissed by the Magistrate, relying on the Supreme Court’s dictum in Shiv Kumar Yadav v. GNCT (2016) that change of counsel is not a ground to recall witnesses. The petitioner argues that inadvertent mistakes occurred due to the change in counsel and pendency of new engagement, and seeks recall to rectify the record. The State/CBI counters that recall under Section 311 must be exercised with caution and that the Shiv Kumar Yadav principle governs. The Kerala High Court notes conflicting authorities: while Shiv Kumar Yadav is sound, Hoffman Andreas v. Inspector of Customs, Amritsar (2000) (10) SCC 430 urges a liberal approach to ensure a fair trial when counsel changes or is unavailable. Ultimately, the court allows the Criminal Miscellaneous Case and directs the Magistrate to summon PW9, PW10, PW17, PW18, PW35, PW38 for further cross-examination, permitting video conferencing for witnesses abroad and to pay batta for their appearance.

Provisions of Law Cited

Section 311 Cr.P.C.

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that inadvertent omissions occurred during cross-examination due to a change of counsel after release on bail and seeks recall of PW9, PW10, PW17, PW18, PW35 and PW38 under Section 311 Cr.P.C. Emphasizes the need to ensure a fair trial. Relies on liberal interpretation of retroactive recall in exceptional circumstances, citing the need to correct trial records and prevent prejudice.

Contentions of Respondents

The State/CBI counters that Section 311 Cr.P.C. must be used sparingly and that a change of counsel alone is not a sufficient ground to recall witnesses; relies on Shiv Kumar Yadav v. GNCT to justify not recalling witnesses without a strong showing of prejudice.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Shiv Kumar Yadav v. GNCT	2016 (2) SCC 402	Partly Overruled / Limited	The court acknowledges this dictum but follows Hoffman Andreas to allow recall in requisite circumstances, thereby limiting the blanket application of Shiv Kumar Yadav.
Hoffman Andreas v. Inspector of Customs, Amritsar	2000 (10) SCC 430	Positive	Used to justify a liberal, justice-centered approach to recall witnesses when defence counsel is deceased or unavailable, guiding the present relief.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN TUESDAY, THE 3[RD] DAY OF OCTOBER 2023 / 11TH ASWINA, 1945 ``` ``` CRL.MC NO. 5319 OF 2023 AGAINST THE ORDER/JUDGMENT CC 69/2023 OF CHIEF JUDL.MAGISTRATE, ERNAKULAM ``` ## **`PETITIONER/ACCUSED NO.1:`** ``` SEBASTIAN P JOHN AGED 48 YEARS S/O P.D. JOHN, PLATHOTTATHIL (H), PAZHAYARIKANDAM, KANJIKUZHI, THODUPUZHA, IDUKKI, PIN - 685606 BY ADVS. S.RAJEEV V.VINAY M.S.ANEER SARATH K.P. PRERITH PHILIP JOSEPH ``` ## **`RESPONDENT/STATE/COMPLAINANT:`** ``` SUB INSPECTOR OF POLICE CBI ACB KOCHI UNIT, KATHRIKADAVU, KALOOR, ERNAKULAM REPRESENTED BY STANDING COUNSEL OF CBI, HIGH COURT OF KERALA (CRIME NO RC26(S)/2011/CBI/ACB/COCHIN), PIN - 682017 ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 03.10.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` ``` CRL. M.C. NO.5319 OF 2023 ``` 2 **P.V.KUNHIKRISHNAN, J. -------------------------------Crl.M.C. No. 5319 of 2023 ---------------------------------------------Dated this the 03[rd] day of October, 2023** ## **O R D E R** This Criminal Miscellaneous Case is filed challenging Annexure-A2 order passed by the Chief Judicial Magistrate, Ernakulam. 2. The petitioner is the 1st accused in C.C. No.69/2012 on the file of Chief Judicial Magistrate Court, Ernakulam. According to the petitioner, the 1st accused was in detention and he was defended by a lawyer at that time. Subsequently, when he was released on bail, he engaged a new lawyer and it is found that several vital questions were omitted to be put to the witnesses who were 3 ``` CRL. M.C. NO.5319 OF 2023 ``` examined as PW9, 10, 17, 18, 35 and 38. It is the case of the petitioner that some inadvertent mistakes were committed while cross examining the witnesses. Therefore, an application under Section 311 Cr.P.C was filed. The learned Magistrate dismissed the same based on the dictum laid down by the Apex Court in **Shiv Kumar Yadav v. GNCT [2016 (2) SCC 402]** , in which it is stated that the change of counsel is not a reason to recall the witnesses. Aggrieved by the same, this Criminal Miscellaneous Case is filed. 3. Heard the learned counsel appearing for the petitioner and the learned Public Prosecutor. 4. It is true that the findings in Annexure-A2 order based on the dictum laid down in **Shiv Kumar Yahav's case** (supra) is correct. But, the 4 ``` CRL. M.C. NO.5319 OF 2023 ``` # Apex Court in **[2000 (10) SCC 430] Hoffman Andreas v. Inspector of Customs, Amritsar** ## observed like this; “6. Normally, at this late stage, we would be disinclined to open up a closed trial once again. But we are persuaded to consider it in this case on acount of the unfortunate development that took place during trial i.e. the passing away of the defence Counsel midway of the trial. The Counsel who was engaged for defending the appellant had cross-examined the witnesses but he could not complete the trial because of his death. When the new Counsel took up the matter he would certainly be under the disadvantage that he could not ascertain from the erstwhile counsel as to the scheme of the defence strategy which the predeceased advocate had in mind or as to why he had not put further questions on certain aspects. In such circumstances, if the new Counsel thought to have the material witnesses further examined, the court could adopt latitude and a liberal view in the interest of justice, particularly when the court has unbridled powers in the matter as enshrined in Section 311 ``` CRL. M.C. NO.5319 OF 2023 ``` 5 ## of the Code. After all the trial is basically for the prisoners and courts would afford the opportunity to them in the fairest manner possible. 7. We think that the plea of the defence that a further opportunity to put more questions to the three prosecution witnesses can be permitted on account of the unfortunate death of the defence Counsel pendente lite, and a new Counsel has to evolve his defence strategy afresh.”(Emphasis supplied) 5. The learned counsel for the petitioner submitted that great prejudice will be caused if the witnesses were not cross examined further. But, the learned Public Prosecutor submitted that one of the witnesses is at abroad and it is not possible to get him for further cross examination. That alone is not a ground to reject an application under Section 311 of Cr.P.C. The Court below can takes steps to cross examine that witness through 6 ``` CRL. M.C. NO.5319 OF 2023 ``` video conference also, for which the counsel for the petitioner submitted that the he is ready to bear the expenses. In such circumstances, the petition can be allowed and the petitioner can be allowed to cross examine the witnesses once again. Therefore, this Criminal Miscellaneous Case is allowed in the following manner; 1. CMP No.950/2023 is allowed. 2. The learned Magistrate will take necessary steps to summon PW9, 10, 17, 18, 35 and 38 for further cross examination. 3. The petitioner will pay batta to these witnesses as fixed by the learned Magistrate for appearing before the court, once again. 4. If any of the witness is at abroad, the ``` CRL. M.C. NO.5319 OF 2023 ``` 7 learned Magistrate will take necessary steps to examine him through video conference. Sd/- nvj **P.V.KUNHIKRISHNAN JUDGE** ``` CRL. M.C. NO.5319 OF 2023 ``` 8 ## **`APPENDIX OF CRL.MC 5319/2023`** ## `PETITIONER ANNEXURES` ``` ANNEXURE-IA COPY OF THE PETITION SUBMITTED BY THE COUNSEL FOR THE PETITIONER WHICH IS NUMBERED AS CMP NO 950/2023 IN CC NO 69/2012 ANNEXURE-IIA CERTIFIED COPY OF THE ORDER DATED 09.06.2023 IN CMP NO 950/2023 IN CC NO 69/2012 PASSED BY THE CHIEF JUDICIALMAGISTRATECOURT, ERNAKULAM ANNEXURE-IIITHE TRUE COPY OF THE VAKALAT OF VIJIN KARTHIK DATED 04.09.2015 ANNEXURE-IVTHE VAKALAT RELINQUISHMENT OF VIJIN KARTHIK DATED 11.05.2017 ANNEXURE-VTRUE COPY OF THE VAKALAT DATED 26.05.2017 FILED BY ADV MANJU ANTONY ANNEXURE-VIA TRUE COPY OF THE VAKALAT RELINQUISHMENT OF MANJU ANTONY DATED 14.11.2022 ANNEXURE-VIITHE NEW VAKALAT FILED BY ADV. VIJIN KARTHIK DATED 15.11.2022 ``` RESPONDENTS EXHIBITS :NIL //TRUE COPY// PA TO JUDGE