State of Kerala represented by Station House Officer, Thrissur West Police Station, through the Public Prosecutor, High Court of Kerala v. Rasheed

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE K.HARIPAL** **TUESDAY, THE 9[TH] DAY OF NOVEMBER 2021 / 18TH KARTHIKA, 1943** **CRL.MC NO. 5713 OF 2020** **CRL.M.P. NO. 4695/2020 IN C.C. NO. 1427/2018 OF THE JUDICIAL** **FIRST CLASS MAGISTRATE COURT – II, THRISSUR CRIME NO. 836/2016 OF THRISSUR WEST POLICE STATION** ## **PETITIONER/PETITIONER:** **THE STATE OF KERALA REPRESENTED BY STATION HOUSE OFFICR, THRISSUR WEST POLICE STATION, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA.** **BY SRI. HRITHWIK C.S., SENIOR PUBLIC PROSECUTOR** ## **RESPONDENT/RESPONDENT/ACCUSED 1:** **RASHEED AGED 38 YEARS S/O. ASSIS, VETTUKKAL HOUSE, VASAPURAM, MATTATHUR, KODAKARA, THRISSUR, PIN-680 684** **BY ADVS.B.RAMAN PILLAI (SR.) R.ANIL M.SUNILKUMAR SUJESH MENON V.B. T.ANIL KUMAR THOMAS ABRAHAM (NILACKAPPILLIL) THOMAS SABU VADAKEKUT MAHESH BHANU S. S.LAKSHMI SANKAR RESSIL LONAN** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 11.10.2021, ALONG WITH Crl.M.C.NO. 5716/2020, THE COURT ON 09.11.2021 PASSED THE FOLLOWING:** Crl.M.C.Nos.5713 & 5716 OF 2020 2 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR. JUSTICE K.HARIPAL** **TUESDAY, THE 9[TH] DAY OF NOVEMBER 2021 / 18TH KARTHIKA, 1943 CRL.MC NO. 5716 OF 2020** **CRL.M. P. NO. 4968/2020 IN C.C. NO. 1427/2018 OF JUDICIAL FIRST CLASS MAGISTRATE COURT – II, THRISSUR CRIME NO. 836/2016 OF THRISSUR WEST POLICE STATION** ## **PETITIONER/PETITIONER:** **THE STATE OF KERALA REPRESENTED BY STATION HOUSE OFFICER, THRISSUR WEST POLICE STATION, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA.** **BY SRI. HRITHWIK C.S., SENIOR PUBLIC PROSECUTOR** ## **RESPONDENT/RESPONDENT/ACCUSED 1:** **RASHEED AGED 38 YEARS S/O. ASSIS, VETTUKKAL HOIUSE, VASAPURAM, MATTATHUR, KODAKARA, THRISSUR, PIN-680 684** **BY ADVS.SRI.R.ANIL SRI.M.SUNILKUMAR SRI.SUJESH MENON V.B. SRI.T.ANIL KUMAR SRI.THOMAS ABRAHAM (NILACKAPPILLIL) SRI.THOMAS SABU VADAKEKUT SRI.MAHESH BHANU S. SMT.S.LAKSHMI SANKAR SHRI.RESSIL LONAN** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 11.10.2021, ALONG WITH Crl.M.C.NO. 5713/2020, THE COURT ON 09.11.2021 PASSED THE FOLLOWING:** Crl.M.C.Nos.5713 & 5716 OF 2020 3 ## **ORDER** These are petitions filed under Section 482 of the Code of Criminal Procedure moved by the State. Crl.M.C. No. 5713/2020 is filed seeking to quash the order dated 09.11.2020 in Crl.M.P. Nos. 4695/2020 in C.C. No. 1427/2018 of the Judicial First Class Magistrate – II, Thrissur whereby the court declined an application filed under Section 311 of the Cr.P.C. for recalling a witness, PW5. Similarly, Crl. M.C. No. 5716/2020 is challenging the correctness of the order passed by the Judicial First Class Magistrate Court – II, Thrissur in Crl. M.P. No. 4968/2020 in the same case, C.C. No. 1427/2018, whereby the court dismissed an application filed under Section 311 of the Cr.P.C for recalling PW3 and mark the arrest memo in Crime No. 553/2016. 2. The facts can be stated first. The respondent faces allegations under Sections 25(1)(a) of the Arms Act, 1959 alleging that he was found in possession of a country made gun, four bullets etc., in an apartment in the ownership of his wife. In order to prove the sale deed executed in favour of the wife of the respondent, the vendor of the apartment was examined as PW5. Crl.M.C.Nos.5713 & 5716 OF 2020 4 He deposed that he had sold the apartment to the wife of the respondent in 2016; even though a copy of the sale deed was reportedly handed over to the Investigating Officer, that was not among the case records and it could not be marked through PW5. Thus, the Assistant Public Prosecutor moved an application under Section 311 of the Cr.P.C. for recalling the witness and also to issue summons under Section 90(1) of the Cr.P.C. to produce a certified copy of the sale deed. That application was strongly opposed by the respondent/accused and by the impugned order dated 09.11.2020, the learned Magistrate dismissed the application. According to the learned Magistrate, it is an attempt to fill up the lacuna created by the prosecution which is bad. 3. I heard the learned Senior Public Prosecutor representing the petitioner and also the learned counsel for the respondent. According to the learned Senior Public Prosecutor, the gun was seized by the Investigating Officer, while the respondent was taken into custody in connection with Crime No. 553/2016 of Thrissur West police station. The respondent was Crl.M.C.Nos.5713 & 5716 OF 2020 5 arrested for the case on 23.03.2016 and was taken into custody on 28.03.2016. During the course of interrogation, he confessed having obtained a country made gun which was reportedly concealed in the kitchen of Flat No. 603, which was purchased by him in the name of his wife Shyama from PW5. But when PW5 was examined for the case, the certified copy of the sale deed was not available. According to the learned Public Prosecutor it is a very material piece of evidence. Unless it is marked, the prosecution would not be able to say that the apartment was in his own possession. According to learned Public Prosecutor, it was the respondent who purchased the property in the name of his wife and the gun and bullets were recovered under Section 27 of the Evidence Act on the basis of the information supplied by the appellant while he was interrogated in custody and therefore, marking of such a document is absolutely essential and it has to be marked through the vendor itself. 4. The respondent has opposed the M.C. According to the learned counsel, such a sale deed is a fabricated document. Crl.M.C.Nos.5713 & 5716 OF 2020 6 No such document was seized during investigation, no reference has been made about such a document in the charge sheet. Even though, PW5 had handed over a certified copy of the document to the Investigating Officer that does not form part of the prosecution records. The statement of PW5 stands discredited in cross examination. He did not have any idea about the location of the said apartment, he could not even name the building, he does not know the road leading to the apartment etc. Therefore, it is clearly an attempt to fill up the lacuna. 5. The respondent is a life convict. He is the accused in Crime No. 553/2016 of Thrissur West police station whereunder faced allegations under Sections 302, 202, 120B, 118, 204 and 109 read with 34 of the Indian Penal Code. He was arrested for the case on 23.03.2016 and the police had taken him into custody on 28.03.2016. During the course of interrogation, he had reportedly confessed to the police that he owns a country made gun which is concealed in Flat No. 603 which was in Pinackel Residency Apartment at Panchickel. That apartment was purchased two months prior to his arrest in the name of his wife. Crl.M.C.Nos.5713 & 5716 OF 2020 7 Thus after taking the key of the said apartment from his own flat No. 102 at Pinackel Residency Apartment at Panchickel, they proceeded to Flat No. 603 and as led by him, the police proceeded to the kitchen and from the cupboard, a loaded country made revolver with four live bullets having the capacity of six rounds and a brown coloured blanket cover were seized from the cupboard which were produced for the case. Crime No. 836/2016 of Thrissur West police station was registered suo motu on the basis of such a recovery alleging offence under Section 25(1)(a) of the Arms Act. On conclusion of investigation charge sheet was laid which is pending as C.C. No. 1427/2018 before the Judicial First Class Magistrate Court - II, Thrissur. Incidentally, it must be stated that in Crime No. 553/2016, the respondent was found guilty, convicted and undergoing life sentence in prison. While so, C.C. No. 1427/2018 was taken up for trial, and Biju, who is the vendor of Flat No. 603 was examined as PW5. When he was examined, he said that he had sold Flat No. 603 to the wife of the respondent, but the copy of the sale deed was not available to be marked and thus, later on, Crl.M.C.Nos.5713 & 5716 OF 2020 8 the Assistant Public Prosecutor filed an application under Section 311 of the Cr.P.C. as well as under Section 91 of the Cr.P.C. first for recalling PW5 and the second one for issuing summons to him to produce certified copy of the sale deed. 6. When heard, the Court pointed out the impropriety of directing the vendor to produce a certified copy of the sale deed. In fact the original sale deed must be in the possession and power of the vendee, after parting ownership and possession of a property, normally vendor may not be retaining a copy of the sale deed. If the vendor is directed to procure and produce a certified copy of the sale deed that would cause unnecessary burden on him. Of course, he may be able to produce it but that is unwholesome and it is only appropriate that the Investigating Officer himself procure a certified copy of the same and if necessary to mark it through PW5 or the vendee, who is also a witness in the charge sheet. The learned Senior Public Prosecutor has submitted that the certified copy of the sale deed is now available with the Investigating Officer and therefore, PW5, if allowed to be recalled, need not be troubled with the production Crl.M.C.Nos.5713 & 5716 OF 2020 9 of the certified copy of sale deed. 7. Now turning to the question as to whether there is justification in recalling PW5. I have no doubt that in the nature of the allegations the ownership of the building has real bearing. As adverted to earlier the specific case of the prosecution is that, when interrogated in custody the respondent had confessed having possessed a country made gun which is concealed in his new apartment purchased in 2016 from PW5 and as guided by the respondent, the police party proceeded to Flat No. 603 and found the said gun, bullets etc., concealed in the cupboard of the kitchen. If such a country made gun was in his possession that is an act attracting provisions under the Arms Act. Therefore, ownership and possession of the building is very important in the proof of the charge. The marking of the sale deed is very important and therefore, it is absolutely necessary in the point of view of the prosecution that the document is marked. 8. It was pointed out that the said Shyama is a witness who is yet to be examined and if necessary, the document can be marked through her. But one cannot say what is the stand going Crl.M.C.Nos.5713 & 5716 OF 2020 10 to be taken by Shyama even if the document is put to her. Therefore, it is only appropriate that the copy of the sale deed be put to the vendor himself, who has already admitted having executed a sale deed in favour of the wife of the respondent. 9. The most vital aspect for consideration in an application under Section 311 of the Cr.P.C. seeking recalling of witness is whether such a recalling is necessary for the just decision of the case. From the discussion above, I have no doubt in my mind that the marking of such a document is very essential and inevitable for the prosecution. 10. It may be true that PW5 might have been stated that he has no idea about the road or the location of the building etc., but that has no bearing at all. Annexure A application suggests that the purport of recalling PW5 is only to prove the copy of the sale deed. Therefore, the learned Magistrate has gone estray in rejecting the application. 11. The next aspect is whether intention is to fill up the lacuna. As stated earlier, the most vital question is whether such a recalling of witness and marking document is for the just Crl.M.C.Nos.5713 & 5716 OF 2020 11 decision of the case. I have already hinted the answer in the affirmative. In the decision in **U.T. of Dadra and Nagar** ## **Haveli and another v. Fatehsinh Mohansinh Chauhan [(2006)** **7 SCC 529]** , the Hon'ble Supreme Court has stated thus:- “15. A conspectus of authorities referred to above would show that the principle is well settled that the exercise of power under Section 311 Cr.P.C. should be resorted to only with the object of finding out the truth or obtaining proper proof of such facts which lead to a just and correct decision of the case, this being the primary duty of a criminal court. Calling a witness or reexamining a witness already examined for the purpose of finding out the truth in order to enable the court to arrive at a just decision of the case cannot be dubbed as “filling in a lacuna in the prosecution case” unless the facts and circumstances of the case make it apparent that the exercise of power by the court would result in causing serious prejudice to the accused resulting in miscarriage of justice.” 12. As mentioned earlier, the vital question to be proved by the prosecution in the nature of the allegations is whether the said country made gun was found in the possession of the respondent. In the process of trying such a question, the ownership of the building from where it was allegedly concealed or recovered is very important. Prosecution has clear case that even though the building, as per the Corporation records, still Crl.M.C.Nos.5713 & 5716 OF 2020 12 remains in the ownership of the vendor, the sale deed would indicate that title and possession of it had already been transferred to the wife of the respondent/accused. At the time when PW5 was examined that document could not be put to him for proof. In fact, he was cited to prove this aspect alone. It is a vital document which requires to be marked for the just decision of the case. That means the learned Magistrate did not consider the application in proper perspective and therefore, the order dated 09.11.2020 requires interference under Section 482 of the Cr.P.C. and I quash the same and allow the prosecution to recall PW5 for the purpose of marking the certified copy of the sale deed. 12. Turning to Crl. M.C. No. 5716/2020, here PW3, the Circle Inspector who conducted the investigation was sought to be recalled. Here, the arrest memo of the respondent as accused in Crime No. 553/2016 was put to him and contending that it has no bearing in the case, the defence opposed its marking. The court upheld the objection and that was not marked. On a later point of time, the said application, Crl.M.P. No. 4968/2020 was Crl.M.C.Nos.5713 & 5716 OF 2020 13 filed by the Assistant Public Prosecutor for recalling the Circle Inspector for marking the arrest memo. From the order dated 03.12.2020, it sounds that even though the court was also convinced that it was liable to be marked, it was disallowed on the consideration that allowing an application under Section 311 would amount to review of the earlier order, for which the court has no power. In other words, it is not that the arrest memo which is an important piece of material for proving the arrest of the respondent for Crime No. 553/2016 is not relevant but considering that, that would amount to review of the order for which a criminal court has no power, the application under Section 311 of the Cr.P.C. was dismissed by the trial court. 13. From the sequence of events, it is evident that Crime No. 836/2016 was registered suo motu by the Investigating Officer in Crime No. 553/2016 when he was under interrogation in the latter crime, which is a murder case. At that time, the respondent allegedly confessed that he is in possession of a country made gun which is under concealment in the kitchen of Flat No. 603. So the prosecution wanted to mark the arrest memo Crl.M.C.Nos.5713 & 5716 OF 2020 14 in Crime No. 553/2016. It does not know as to why marking of such a document was opposed by the defence. More strange is that the learned Magistrate had improperly upheld such an objection and marking was disallowed. From the order under challenge it seems that the court is also convinced that such a document is an important document, should have been marked, but fearing that, that would amount to review of the order the court rejected the application. I have no doubt that marking of the arrest memo in Crime No. 553/2016 is very relevant in the proof of the charge. Marking of that document should not have been disallowed. Anyhow, the Circle Inspector is sought to be recalled for the purpose. Of course, there is point in the order of the learned Magistrate that the criminal court has no power of review but still in appropriate case, the criminal court has auxiliary powers to review orders to pass equitable orders. Whatever it may be, I find that, the order is also wrong and the court should have invoked its auxiliary powers for recalling the witness. Therefore, the order dated 03.12.2020 in Crl.M.P. No. 4968/2020 also is liable to be interfered with and PW3 shall be Crl.M.C.Nos.5713 & 5716 OF 2020 15 recalled. Both the Crl.M.C.s are allowed. **SD/-** **K.HARIPAL** **JUDGE** **DCS/07.11.2021** Crl.M.C.Nos.5713 & 5716 OF 2020 16 ## **APPENDIX OF CRL.M.C. NO. 5713/2020** ## **PETITIONER'S ANNEXURE** **ANNEXURE A TRUE COPY OF THE PETITION FILED BY THE PROSECUTION U/S. 311 CR.PC DATED 20.10.2020.** **ANNEXURE B CERTIFIED COPY OF THE COMMON ORDER DATED 09.11.2020 IN CRL.M.P. NO. 4695/2020 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT-II, THRISSUR.** Crl.M.C.Nos.5713 & 5716 OF 2020 17 ## **APPENDIX OF CRL.M.C. NO. 5716/2020** ## **PETITIONER'S ANNEXURE** **ANNEXURE A TRUE COPY OF THE PETITION FILED BY THE PROSECUTION U/S. 311 OF CR.PC DATED 17.11.2020. ANNEXURE B CERTIFIED COPY OF THE ORDER DATED 03.12.2020 IN CRL.M.P. NO. 4968/2020 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT II, THRISSUR.**