High Court of KeralaSingle Judge2020-06-24Common order quashed; prosecution permitted to ...

State of Kerala v. Sherif @ Kattarabi

Case / Petition Number:Crl.MC Nos. 739/2020, 740/2020, 741/2020

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: T. V. Anil Kumar
Judgment Date: 2020-06-24
Court Decision / Holding: The impugned common order dated 18.12.2019 is quashed; the prosecution is permitted to tender the additional document in evidence through the official witness cited in accordance with law, with opportunity for the accused to cross-examine and to rebut any incriminating evidence. All pending interlocutory applications are closed.
Final Disposition: Common order quashed; prosecution permitted to tender additional document through official witness; cross-examination allowed; interlocutory applications closed.

Parties to the Case

Appellants / Petitioners

State of Kerala represented by the Sub Inspector of Police, Guruvayoor Police Station

Respondents

Sherif @ Kattarabi

Legal Representation & Advocates

Counsels for Petitioners

• Adv. Saju., P.P.

Counsels for Respondents

• Adv. E.A. Haris

Case Synopsis & Summary

This matter arises from three Criminal Miscellaneous Cases (Crl.M.C. Nos. 739/2020, 740/2020 and 741/2020) filed by the State of Kerala challenging a common order dated 18.12.2019 of the Sessions Judge, Thrissur, in S.C.No.565/2014, rejecting prosecutions’ requests to reopen the case for evidence and to admit an additional document by examining an official witness. The state contends that Ext.P11, an ownership certificate, and linking door numbers XXVI/195 and 979-B, would connect the place of occurrence to the accused’s father’s name and thus clarify the prosecution's case on the murder charged in the SC case. The accused argues that reopening and admitting new evidence would prejudicially surprise him, as the document was not collected during investigation and the prosecutor cannot supplant the Investigating Officer. The High Court, per Justice T.V. Anil Kumar, reverses the Sessions Court’s order, holding that admission of the document through an official witness is within the court’s discretion under Cr.P.C. s.311, subject to cross-examination. It cites Shaduly P.A. @ Haris v. State to support the admissibility of witnesses summoned by the court and distinguishes earlier decisions (Aravindakashan Pillai v. State of Kerala and Mohanlal v. Union of India). The result is a reversal, allowing the prosecution to tender the document in evidence and proceed with defence rights intact.

Provisions of Law Cited

Cr.P.C. s.482Cr.P.C. s.311Cr.P.C. s.332Cr.P.C. s.313(5)Cr.P.C. s.91Cr.P.C. s.165Evidence Act s.165

Legal Doctrines & Maxims

Power to summon witnesses under Cr.P.C. 311 and Evidence Act 165
Discretion to admit additional evidence under Cr.P.C. s.311
Lacuna concept of filling gaps in evidence; prejudice to accused must be avoided; ability to recall witnesses and examine new evidence under statutory provisions

Submissions & Arguments

Contentions of Appellants / Petitioners

The State submission argues that the Sessions Court erred in refusing to reopen the case and admit Ext. P11 and to examine a Revenue Officer, as the ownership certificate would establish a link between the two door numbers and show the old numbering for the same building, which is crucial to prove the State’s theory that the building belonged to the accused’s father. The court has inherent power under Cr.P.C. s.311 to reopen the evidence and permit admission of relevant documents. The prosecution must not be prevented from clarifying ambiguities, especially where the evidence could impact the case’s outcome; cross-examination will protect the accused’s rights.

Contentions of Respondents

The defence contends that reopening would prejudice the accused, particularly since the document was not collected during investigation and the prosecutor cannot replace the Investigating Officer. Admitting a new ownership certificate would amount to filling a lacuna and could mislead the court; the 313(5) statement has already shaped the defence, and the accused should not be ambushed with new material. The defense cites decisions to resist admission, arguing that the court should not extend Cr.P.C. s.311 beyond its permissible limits.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
Aravindakashan Pillai v. State of Kerala	2016(3)KHC 474	Distinguished	The court distinguished this decision as not aligning with the present facts.
Mohanlal v. Union of India	1991 KHC 556	Distinguished	The court found it inapplicable due to factual differences.
Shaduly P.A. @ Haris v. State	2017(3) KHC 285	Positive	The court relied on this decision to support the principle that witnesses not questioned by the Investigating Officer may be summoned under Cr.P.C. 311 and Evidence Act 165.

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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 T.V.ANILKUMAR** **WEDNESDAY, THE 24TH DAY OF JUNE 2020 / 3RD ASHADHA, 1942** ## **Crl.MC.No.739 OF 2020(B)** **AGAINST ORDER IN CRL.MP.4088/2019 IN SC 565/2014 DTD 18.12.2019 OF SESSIONS COURT,THRISSUR** **CRIME NO.1458/2013 OF Guruvayoor Police Station , Thrissur** ## **PETITIONER/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY THE SUB INSPECTOR OF POLICE, GURUVAYOOR POLICE STATION.** **BY ADV. SRI. SAJU.,P.P.** ## **RESPONDENT/RESPONDENT/ACCUSED:** **SHERIF @ KATTARABI AGED 36/13, S/O. HAMSA, NALAKATH HOUSE, IRINGAPPURAM DESOM, POOKKODE VILLAGE, PIN CODE - 680 505.** **BY ADV. SRI.E.A.HARIS** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 22-06-2020, ALONG WITH Crl.MC.740/2020(B), Crl.MC.741/2020(C), THE COURT ON 24-06-2020 PASSED THE FOLLOWING:** **Crl.M.C.Nos.739, 740 and 741 of 2020** **:-2-:** **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR** **WEDNESDAY, THE 24TH DAY OF JUNE 2020 / 3RD ASHADHA, 1942 Crl.MC.No.740 OF 2020(B)** **AGAINST ORDER IN CRL.MP.4087/2019 IN SC 565/2014 DTD 18.12.2019 OF SESSIONS COURT,THRISSUR** **CRIME NO.1458/2013 OF Guruvayoor Police Station , Thrissur** ## **PETITIONER/COMPLAINANT:** **STATE OF KERALA, REPRESENTED BY THE SUB INSPECTOR OF POLICE, GURUVAYOOR POLICE STATION.** **BY ADV. SRI. SAJU.,P.P.** ## **RESPONDENT/RESPONDENT/ACCUSED:** **SHERIF @ KATTARABI, AGED 36/13, S/O.HAMSA, NALAKATH HOUSE, IRINGAPPURAM DESOM, POOKKODE VILLAGE, PIN CODE - 680 505.** **BY ADV. SRI.E.A.HARIS** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 22-06-2020, ALONG WITH Crl.MC.739/2020(B), Crl.MC.741/2020(C), THE COURT ON 24-06-2020 PASSED THE FOLLOWING:** **Crl.M.C.Nos.739, 740 and 741 of 2020** **:-3-:** **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR** **WEDNESDAY, THE 24TH DAY OF JUNE 2020 / 3RD ASHADHA, 1942** ## **Crl.MC.No.741 OF 2020(C)** **AGAINST ORDER IN CRL.MP.4089/2019 IN SC 565/2014 DTD 18.12.2019 OF SESSIONS COURT,THRISSUR** **CRIME NO.1458/2013 OF Guruvayoor Police Station , Thrissur** ## **PETITIONER/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY THE SUB INSPECTOR OF POLICE, GURUVAYOOR POLICE STATION.** **BY ADV. SRI. SAJU.,P.P.** ## **RESPONDENT/RESPONDENT/ACCUSED:** **SHERIF @ KATTARABI AGED 36/13, S/O. HAMSA, NALAKATH HOUSE, IRINGAPPURAM DESOM, POOKKODE VILLAGE, PIN CODE - 680 505.** **BY ADV. SRI.E.A.HARIS** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 22-06-2020, ALONG WITH Crl.MC.739/2020(B), Crl.MC.740/2020(B), THE COURT ON 24-06-2020 PASSED THE FOLLOWING:** **Crl.M.C.Nos.739, 740 and 741 of 2020** ## **:-4-:** ## **Dated this the 24[th] day of June, 2020** ## **C O M M O N O R D E R** A common order dated 18.12.2019 was passed by the learned Sessions Judge-Thrissur, in S.C.No.565/2014 rejecting the three applications submitted by the learned Public Prosecutor seeking to reopen the case for evidence and receive an additional document by examining an official witness cited on the side of the prosecution. Being aggrieved by the impugned order, the State has filed these Crl.M.Cs. under Section 482 of Cr.P.C. 2. The sole accused was tried on the charge of murder in S.C.No.565/2014. After closing the prosecution evidence and also recording the 313 statement given by the accused, the learned Sessions Judge posted the case for hearing under Section 332 of Cr.P.C. It is at this stage of the proceeding, the applications were filed seeking ## **Crl.M.C.Nos.739, 740 and 741 of 2020** **:-5-:** admission of additional document and examination of witness and the impugned order rejecting the applications followed. 3. As per the prosecution case, place of occurrence is a building bearing Door No.XXVI/195 of Guruvayur Municipality alleged to be in the occupancy of the accused. The place of occurrence was briefly described in Ext.P10 scene mahazar as well as in Ext.P12 sketch. In the mahazar, the building was shown to bear Door No.XXVI/195. 4. Ownership certificate as to Door No. XXVI/195 was not produced by the prosecution till date. It, on the other hand, produced Ext.P11 ownership certificate of a building bearing Door No.979-B of Guruvayur Municipality and this was proved through PW12, the Revenue Officer of the Municipality. This door number was assessed in the name of one Hamsa, who according to the ## **Crl.M.C.Nos.739, 740 and 741 of 2020** **:-6-:** prosecution, is the father of the accused. Ext.P11 document is silent as to how the door number therein is related to the place of occurrence. Prosecution alleges that Door No.979-B is the old number of Door No.XXVI/195. In order to prove this contention mutually connecting the door numbers, an ownership certificate dated 6.11.2019 issued by the Revenue officer of Guruvayur Municipality was produced. 5. The accused seriously opposed reception of additional document and examination of the Revenue Officer of Guruvayur Municipality taking the following serious contentions : i) Attempt of the prosecution is to fill up the lacuna which the court cannot permit in exercise of power under Section 311 of Cr.P.C. ii) The accused would be seriously prejudiced in as much as he has submitted a written ## **Crl.M.C.Nos.739, 740 and 741 of 2020** **:-7-:** statement under Section 313(5) of Cr.P.C. shaping a definite defence in the case. iii) The additional document not being collected in the course of the investigation, should not be allowed to be tendered in evidence by the learned Prosecutor who is not supposed to step into the shoes of the Investigating Officer. **==> picture [402 x 13] intentionally omitted <==** Sessions Judge accepted the contention of the accused that reopening of the case and admission of additional document will prejudice the accused. 7. I heard parties on either side and find my way to uphold the impugned order as legal and proper. The only attempt of the prosecution by tendering additional document in evidence is to prove the fact as to how both door numbers are inter related. Had Ext.P11 ownership certificate ## **Crl.M.C.Nos.739, 740 and 741 of 2020** **:-8-:** itself indicated that the door number therein is the old number of XXVI/195, there would have been no need for any additional evidence at all. I am satisfied that it was the result of an indeliberate omission on the part of the Investigating Officer. There is no basis for the contention of the accused that the attempt of the prosecution is to fill up a lacuna. Admission of the additional document in evidence is absolutely essential for the just decision of the case as to how both door numbers are connected each other and to prove the contention of the prosecution that Door No.979-B was assessed in the name of father of the accused. If the proposed evidence as to the connecting link of door numbers is shut out, it would only amount to causing prejudice to prosecution rather than to the accused. 8. The contention of the accused is that he ## **Crl.M.C.Nos.739, 740 and 741 of 2020** ## **:-9-:** has no connection whatsoever with any of these door numbers and the assessee, Hamsa is not his father also. The prosecution does not intend to prove any new fact but, on the other hand, it is meant to clarify a position which would otherwise remain ambiguous. I am at a loss to understand as to how the accused would be prejudiced by allowing the ownership certificate dated 6.11.2019 to be admitted in evidence through examination of the Revenue Officer of the Guruvayur Municipality. 9. The argument of the learned counsel for accused based on decisions reported in **Aravindakashan Pillai v. State of Kerala** **(2016(3)KHC 474)** and in **Mohanlal v. Union of India** **(1991 KHC 556)** has no force in as much as the facts of this case do not match those dealt with in the said decision. The ownership certificate sought to be tendered as additional evidence cannot be said ## **Crl.M.C.Nos.739, 740 and 741 of 2020** ## **:-10-:** to be an absolute strange and new document brought forth seeking to prove a new contention taking the accused by surprise. The purported nexus between the door numbers is a fact which remained to be a part of the assessment proceeding as to the door numbers in question. Therefore itself, for the mere reason that the ownership certificate was not collected during the course of investigation will not debar its admission in evidence. If at all the document is summoned under Section 91 of Cr.P.C. also, it would not make any difference since the Revenue Officer would be bound to produce the same document even then, in response to the summons. It is well nigh settled by law that even witnesses not questioned by Investigating Officer could be summoned and examined by court in exercise of power under Section 165 of the Evidence Act and Section 311 of the Cr.P.C. as held in the decision reported ## **Crl.M.C.Nos.739, 740 and 741 of 2020** ## **:-11-:** in **Shaduly P.A. @ Haris v. State (2017(3) KHC 285)** . On consideration of entire materials on record, I am satisfied that the court below ought to have allowed the prosecution to tender the additional document in evidence exercising its discretion within the parameters of Section 311. The impugned order therefore requires to be reversed. In the result, the impugned common order dated 18.12.2019 is quashed by allowing all the Crl.M.Cs. The prosecution is permitted to tender additional document in evidence through the official witness cited in accordance with law. Needless to say that the court below shall give opportunity to the accuse to cross-examine the witness and put forth his defence. If any incriminating evidence is brought in, the court below will question the accused with reference to the same and give him opportunity to rebut the evidence against him in **Crl.M.C.Nos.739, 740 and 741 of 2020** **:-12-:** accordance with law. All pending interlocutory applications are closed. Sd/- **T.V.ANILKUMAR JUDGE** ami/ **Crl.M.C.Nos.739, 740 and 741 of 2020** **:-13-:** ## **APPENDIX OF Crl.MC 739/2020** **PETITIONER'S EXHIBITS: ANNEXURE A THE TRUE COPY OF THE MAHAZAR DATED 23.8.2013 PREPARED BY THE INVESTIGATING OFFICER. ANNEXURE B THE TRUE COPY OF THE OWNERSHIP CERTIFICATE ISSUED BY THE SECRETARY GURUVAYOOR MUNICIPALITY. ANNEXURE C THE TRUE COPY OF THE PETITION FILED BY THE PROSECUTOR AS CRL. M. P. NO.4088/2019 IN S.C.NO.565/2014 BEFORE THE SESSIONS COURT. ANNEXURE D THE TRUE COPY OF THE OBJECTION FILED BY THE RESPONDENT/ACCUSED. ANNEXURE E THE CERTIFIED COPY OF THE ORDER DATED 18.12.2019 IN CRL.M.P.NO.4088/2019 IN S.C.NO.565/2014. RESPONDENTS' EXHIBITS: ANNEXURE-R1A TRUE COPY OF SEC.313(5) Cr.PC STATEMENT FILED BY THE RESPONDENT BEFORE THE COURT BELOW ON 31.10.2019** **Crl.M.C.Nos.739, 740 and 741 of 2020** **:-14-:** ## **APPENDIX OF Crl.MC 740/2020** |**PETITIONER'S **|**EXHIBITS:**| |---|---| |**ANNEXURE A**|**THE TRUE COPY OF THE MAHAZAR DATED**| ||**23/08/2013 PREPARED BY THE INVESTIGATING**| ||**OFFICER.**| |**ANNEXURE B**|**THE TRUE COPY OF THE OWNERSHIP CERTIFICATE**| ||**ISSUED BY THE SECRETARY GURUVAYOOR**| ||**MUNICIPALITY.**| |**ANNEXURE C**|**THE TRUE COPY OF THE PETITION FILED BY THE**| ||**PROSECUTOR AS CRL.MP.NO.4087/2019 IN**| ||**S.C.NO.565/2014 BEFORE THE SESSIONS COURT.**| |**ANNEXURE D**|**THE TRUE COPY OF THE OBJECTION FILED BY THE**| ||**RESPONDENT/ACCUSED.**| |**ANNEXURE E**|**THE CERTIFIED COPY OF THE ORDER DATED**| ||**18/12/2019 IN CRL.M.P.NO.4087/2019 IN**| ||**S.C.NO.565/2014.**| **Crl.M.C.Nos.739, 740 and 741 of 2020** **:-15-:** ## **APPENDIX OF Crl.MC 741/2020** |**PETITIONER'S **|**EXHIBITS:**| |---|---| |**ANNEXURE A**|**THE TRUE COPY OF THE MAHAZAR DATED**| ||**23.8.2013 PREPARED BY THE INVESTIGATING**| ||**OFFICER.**| |**ANNEXURE B**|**THE TRUE COPY OF THE OWNERSHIP CERTIFICATE**| ||**ISSUED BY THE SECRETARY GURUVAYOOR**| ||**MUNICIPALITY.**| |**ANNEXURE C**|**THE TRUE COPY OF THE PETITION FILED BY THE**| ||**PROSECUTOR AS CRL.M.P.NO.4089/2019 IN**| ||**S.C.NO.565/2014 BEFORE THE SESSIONS COURT.**| |**ANNEXURE D**|**THE TRUE COPY OF THE OBJECTION FILED BY THE**| ||**RESPONDENT/ACCUSED.**| |**ANNEXURE E**|**THE CERTIFIED COPY OF THE ORDER DATED**| ||**18.12.2019 IN CRL.M.P.NO.4089/2019 IN**| ||**S.C.NO.565/2014.**|