Sreelatha v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE M.C.HARI RANI TUESDAY, THE 31ST MARCH 2009/10TH CHAITHRA 1931 ------------------------AGAINST THE ORDER DATED 10/08/2006 IN CRMP. 19/2006 IN SC.83/1999 of ASSISTANT SESSIONS COURT, KOTTAYAM .................... **PETITIONER:** SREELATHA, D/O.SIVAN CHETTIYAR, MATTATHIL HOUSE, OLASSA, OLASSA VILLAGE, KOTTAYAM. BY ADV. SRI.S.RAJEEV ## **RESPONDENTS** : 1. STATE OF KERALA, REPRESENTED BY SPECIAL PUBLIC PROSECUTOR, KOTTAYAM. 2. T.K.VISWANATHAN, S/O.KRISHNAN CHETTIYAR, THYPPARAMBIL, LAKATTOOR KARA, KOODOOPPADAM. R1 BY PUBLIC PROSECUTOR MR. THOMAS JOHN AMBOOKKEN SRI.P.VIJAYA BHANU FOR R2 SMT.P.MAYA FOR R2 SRI.RINNY STEPHEN FOR R2 THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 19/03/2009, THE COURT ON THE 31/03/2009 PASSED THE FOLLOWING: ORDER ON CRL.M.A. NO. 5184/2006 IN CRL.M.C. NO. 2972 OF 2006 DISMISSED. 31-3-2009 SD/-M.C. HARI RANI, JUDGE TRUE COPY P.S.TO JUDGE ks. ## **M.C. HARI RANI, J.** ## **======================** ## **CRL.M.C.NO.2972 of 2006** ## **=======================** ## **Dated this the 31[st] day of March 2009** ## **ORDER** This petition is filed by the petitioner herein under Section 482 of the Code of Criminal Procedure challenging Annexure-IV order dated 10-8-2006 in Crl.M.P.No.19/2006 filed under Sections 311 of the Cr.P.C.and under Section 165 of the Evidence Act in S.C.83/1999 pending before the Assistant Sessions Court, Kottayam. 2. The prayer in Crl.M.P.No.19/2006 in S.C.No.83/1999 filed by the petitioner herein, a copy of which is produced as Annexure-I, is as follows: “To issue summons to the petitioner to examine her as a witness in the case and the documents produced along with the petition may be marked as Exhibits in the case” CRMC. 2972/2006 -2- 3. As per the averments in that petition, the petitioner is the second wife of the second counter petitioner, who is the accused in the above Sessions Case, wherein trial is already started. It is stated in that petition that she is in custody of some of the documents which is produced as document Nos.1 to 5 as listed therein, including suicide note written by the deceased who is the first wife of the accused and the letter written by one Aswathi Varma already examined on the prosecution side as PW12 in this case. The petitioner has asserted that the proof of those documents is highly necessary for the just decision of the case and she is ready to depose the matter, if she is examined as a court witness in the above case. 4. The offence alleged against the accused in the above case are under Sections 498A and 306 of Indian Penal Code. The allegation of the prosecution against the accused is that the first wife of the accused committed suicide due to harassment for dowry and he abetted suicide of the deceased. The trial of that case is already started and prosecution witnesses were already CRMC. 2972/2006 -3- examined and 313 examination of the accused is also completed. The case is posted for defence evidence. At that time this petition is filed by the petitioner under Section 311 of Cr.P.C.with the prayer to issue summons to her to examine as a witness on the side of the prosecution. That petition was dismissed by the learned Assistant Sessions Judge, Kottayam as per order dated 10-8-2006. Thereafter, this petition is filed on 22-9-2006 under Section 482 of Cr.P.C. and this Court granted interim stay of all further proceedings in S.C.No.83/1999 on 25-9-2006. Subsequently, interim stay was extended until further orders as per order dated 7-12-2006. 5. Heard the learned counsel appearing for the petitioner and the second respondent. 6. It is submitted by the learned counsel for the petitioner that the petitioner in this petition is in possession of some documents which are listed along with the petition filed by her under Section 311 of Cr.P.C. and under Section 165 of the Evidence Act. Those documents produced along with Annexure-I CRMC. 2972/2006 -4- petition include the suicide note written by the deceased first wife of the accused, copy of which is produced as Annexure-II and also the letter written by one Aswathi Varma, who had illicit relationship with the second respondent, to the mother of the second respondent, a copy of which is marked as Annexure-III. According to the counsel for the petitioner, those documents are absolutely essential for the just decision of the case alleged by the prosecution which would reveal about the illicit relationship of the second respondent with Aswathi Varma. 7. It is submitted by the learned counsel for the 2[nd] respondent that those documents are not at all relevant and necessary for the just decision of this case which were procured by the petitioner herein who is a total stranger and had no connection with the second respondent/accused at the time of filing the final report in the present case. 8. The learned Assistant Sessions Judge, Kottayam as per order dated 10-8-2006 dismissed the petition filed by the petitioner herein for the reason that Aswathi Varma, the person CRMC. 2972/2006 -5- who wrote the letter was already examined before the court as PW12 who denied the suggestion and stated that she never wrote such a letter to the mother of the accused. Thus according to the learned Assistant Sessions Judge, the genuineness of the documents produced by the petitioner was in dispute. It is also found that Exts.P1 and P1(a) are the diary written by the deceased at the time of committing suicide which contained suicide note of the deceased. Therefore, the evidence of the petitioner is not essential for the just decision of the case. Further, there is a strained relationship between the petitioner and the second respondent/accused and the examination of the petitioner at this stage is not essential to decide the dispute. With those observations, the petition filed by the petitioner has been dismissed by the trial court. ## 9. In the decision in **Manuel Augustine v. State of Kerala, 1984 K.L.T.859,** this Court held as follows: “ _But when the public interested individual, comes straight to court alleging that he has evidence in support of the prosecution, evidence which he has not_ CRMC. 2972/2006 -6- _so far disclosed to any authority, that evidence may be suspect but cannot be rejected on that ground alone. It is at that stage that there is relevance to the provision of S.311 of the Code. S.311 of the Code provides that the court may, at any stage, of any enquiry or trial or other proceeding, summon any person as a witness. The authority of the court as an instrument of justice has statutory recognition in S.311 and the court can always decide, and in fact has a duty to decide, whether the evidence offered in court, as in this case, should be allowed in support of the prosecution. The court has vast powers to oversee the functioning of the criminal judicial system and guard against possible abuse of such right. The section clothes the court with a judicial discretion to admit or refuse fresh evidence in support of the prosecution. This section therefore guarantees the right of an individual to adduce evidence in court in support of the prosecution but statutorily restricts it by a judicial determination of its propriety and necessity.”_ 10. The discretion vested in the court under Section 311 is to be exercised judiciously and the court has been empowered to CRMC. 2972/2006 -7- summon any person as a witness at any stage of inquiry, trial or other proceedings and that power is not confined to any particular class of person. It is the settled law that the court can call a witness not only on the motion of either the prosecution or the defence but also it can do so suo motu. In the present case the case is posted for defence evidence. The present petition is filed by the petitioner with the prayer to summon her to produce some documents which is material for the just decision of the case. It is true that the prosecution has to examine the witnesses shown in the list produced by it in support of its case. After that the accused will have the right to cross examine and the matter will be decided by the trial Judge after considering the evidence adduced on the side of the prosecution and also the defence evidence if any. Before the matter is decided and during the pendency of the trial, if any, additional evidence in support of the case on the side of the prosecution is brought out to the notice of the trial Judge, it is the duty of the court to issue summons to that witness directing him/her to attend or to CRMC. 2972/2006 -8- produce any documents or other things and take all such evidence as may be produced in support of the prosecution for the just decision if it advances the cause of justice. Section 311 is wide enough to give power to a trial court to accept a supplemental or additional list of witnesses given by the prosecution and to issue summons to them and record their evidence. The petitioner herein sought permission of the court to examine her as an additional witness with the allegation that she has got some material evidence which will lead to a just decision in the case. 11. Considering the allegations in the petition and also the reasoning made by the learned Assistant Sessions Judge, I find that interests of justice warrant the examination of the petitioner and to prove the documents listed along with the petition. It will not cause any prejudice to the accused who has right to cross examine the petitioner and otherwise would actually lead to grave injustice. In the circumstances, I cannot agree with the reasoning of the learned Assistant Sessions Judge in the CRMC. 2972/2006 -9- impugned order dated 10-8-2006. As a result the view taken by the learned Assistant Sessions Judge cannot be sustained and consequentially this petition is allowed and the order passed by the learned Assistant Sessions Judge, Kottayam is set aside. The court below is directed to issue summons to the petitioner in Crl.M.P.19/2006 in S.C.No.83/1999 to examine her as an additional witness on the side of the prosecution and then to proceed according to law. The Crl.M.C.is allowed accordingly. **M.C. HARI RANI JUDGE** **ks.**