Sujith T. v. Sub Inspector of Police, Town Police Station, Kozhikode & State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **FRIDAY, THE 25TH DAY OF OCTOBER 2019 / 3RD KARTHIKA, 1941** ## **Crl.MC.No.3227 OF 2019(C)** **CMP 100/2019 IN CC 5/2017 OF CHIEF JUDICIAL MAGISTRATE, KOZHIKODE** **CRIME NO.550/2016 OF Town Police Station , Kozhikode** ## **PETITIONER/ACCUSED:** **SUJITH.T., AGED 39 YEARS S/O. CHANDRAN, KAILAS, THAITHOTTATHIL VEEDU, KOVOOR, MEDICAL COLLEGE P.O., KOZHIKODE-673 571** **BY ADVS. SRI.T.G.RAJENDRAN SRI.T.R.TARIN** ## **RESPONDENT/COMPLAINANT/STATE:** **1 THE SUB INSPECTOR OF POLICE TOWN POLICE STATION, KOZHIKODE-673 571** **2 THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ENRAKULAM-682 031** ## **SRI E C BINEESH -PP** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 15.10.2019, THE COURT ON 25.10.2019 PASSED THE FOLLOWING:** Crl.M.C.No.3227/2019 2 ## **“CR”** ## **R.NARAYANA PISHARADI, J** ************************ Crl.M.C.No.3227 of 2019 --------------------------------------------Dated this the 25[th] day of October, 2019 ## **O R D E R** This petition is filed under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code') challenging Annexure-VI order passed by the Chief Judicial Magistrate, Kozhikode. 2. The petitioner is the sole accused in the case C.C.No.5/2017 pending in the court below. The offence alleged against him is punishable under Section 420 I.P.C. 3. The prosecution case is as follows: On 01.06.2012, the petitioner made application for availing loan from the Calicut Cooperative Urban Bank. At that time, he concealed the fact that he had sold a portion of the property on 31.05.2012 which he had offered as security for the loan. He availed a loan of Rs.4,75,000/- from the bank on 19.06.2012, on the basis of the Crl.M.C.No.3227/2019 3 equitable mortgage created in respect of the property. The aforesaid property included the property which was already sold by him. Thus, he cheated the bank. 4. When the case was posted for final hearing, after closing the evidence of the prosecution and the defence, the prosecutor filed two applications in the court below. The application Crl.M.P.No.100/19 was filed under Section 311 of the Code to recall the Manager of the bank, who was examined as PW1. The other application, Crl.M.P.No.143/2019, was filed under Section 91 of the Code to direct PW1 to produce before the court the memorandum of equitable mortgage allegedly executed by the petitioner and submitted to the bank. 5. Inspite of vehement objection raised by the petitioner, learned Magistrate allowed both applications, as per AnnexureVI order. Aggrieved by the aforesaid order, the petitioner has approached this Court with this petition under Section 482 of the Code. 6. Heard learned counsel for the petitioner and the learned Public Prosecutor. Crl.M.C.No.3227/2019 4 7. Learned counsel for the petitioner has challenged Annexure-VI order mainly on three grounds: (1) The prosecution cannot be permitted to produce and prove a document which was not seized by the police during the investigation of the case. (2) The prosecution cannot be permitted to fill up the lacuna in the evidence by adducing additional evidence. (3) At any rate, the application filed for recalling the witness should not have been allowed by the learned Magistrate when the case was posted for final hearing. 8. There is no merit in the contention that the prosecution cannot be permitted to produce, during the trial of the case, a document which was not seized by the police during the investigation of the case. Further investigation of a case, even after filing charge sheet or even after commencement of the trial of a case, is not prohibited. If that be so, it cannot be found that the prosecution has no right to produce a document, which was not seized by the police during the investigation conducted before filing the charge sheet. Crl.M.C.No.3227/2019 5 ## 9. In **Central Bureau of Investigation v. R.S.Pai :** ## **AIR 2002 SC 1644** , the Supreme Court has held as follows: _“Normally the investigating officer is required to produce all the relevant documents at the time of submitting the charge sheet. At the same time, as there is no specific prohibition, it cannot be held that the additional documents cannot be produced subsequently. If some mistake is committed in not producing the relevant documents at the time of submitting the report of charge sheet, it is always open to the investigation officer to produce the same with the permission of the Court. ....... Normally, the documents gathered during the investigation upon which the prosecution wants to rely are required to be forwarded to the Magistrate but if there is some omission, it would not mean that the remaining documents cannot be produced subsequently. .... Further, the scheme of subsection (8) of Section 173 also makes it abundantly clear that even after the charge sheet is submitted, further investigation, if called for, is not precluded. If further investigation is not precluded then there is no question of not permitting the prosecution to produce additional documents which were gathered prior to or subsequent to investigation. In such cases, there cannot be any prejudice to the_ Crl.M.C.No.3227/2019 6 _accused”._ ## 10. **R.S. Pai** (supra), was followed in **State v. M. Subrahmanyam : AIR 2019 SC 3232** and it was held by the Apex Court as follows: _“The rights of an accused are undoubtedly important, but so is the rule of law and societal interest in ensuring that an alleged offender be subjected to the laws of the land in the larger public interest. To put the rights of an accused at a higher pedestal and to make the rule of law and societal interest in prevention of crime, subservient to the same cannot be considered as dispensation of justice. A balance therefore has to be struck. A procedural lapse cannot be placed at par with what is or may be substantive violation of the law”._ ## 11. In **Rajalakshmi v. State of Kerala : 2007 (3) KLT** ## **347** , this Court has held as follows: _“It is by now trite that the expression of "all such evidence as may be produced in support of the prosecution" is not limited or circumscribed by the stipulations in Section 173 of the Cr.P.C. In an appropriate case, the prosecutor is certainly justified in relying on the documents which have not been seized by the police in the course of_ Crl.M.C.No.3227/2019 7 _investigation and copies of which have not been furnished under Section 173(5) of the Cr.P.C.”_ 12. The plea of the petitioner that the attempt of the prosecution is to fill up the lacuna in evidence by adducing additional evidence also cannot be countenanced. In **Rajendra** **Prasad v. Narcotic Cell : AIR 1999 SC 2292** , the Apex Court has observed as follows: _“It is a common experience in criminal courts that defence counsel would raise objections whenever courts exercise powers under Section 311 of the Code or under Section 165 of the Evidence Act by saying that the Court could not 'fill the lacuna in the prosecution case'. A lacuna in prosecution is not to be equated with the fallout of an oversight committed by a public prosecutor during trial, either in producing relevant materials or in eliciting relevant answers from witnesses. The adage 'to err is human' is the recognition of the possibility of making mistakes to which humans are proned. A corollary of any such laches or mistakes during the conducting of a case cannot be understood as the lacuna which a court cannot fill up. Lacuna in the prosecution must be understood as the inherent weakness or a latent wedge in the matrix of the_ Crl.M.C.No.3227/2019 8 _prosecution case. The advantage of it should normally go to the accused in the trial of the case, but an over sight in the management of the prosecution cannot be treated as irreparable lacuna. No party in a trial can be foreclosed from correcting errors. If proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the court should be magnanimous in permitting such mistakes to be rectified. After all, function of the criminal court is administration of criminal justice and not to count errors committed by the parties or to find out and declare who among the parties performed better”._ 13. The document sought to be produced by the prosecution is only the memorandum of deposit of title deeds allegedly executed by the petitioner and submitted by him to the bank. The investigating officer had already seized the other documents relating to the equitable mortgage and produced them before the court. There is already evidence adduced by the prosecution regarding the creation of equitable mortgage by the petitioner. Therefore, it cannot be found that the attempt of the prosecution in producing the memorandum of deposit of title Crl.M.C.No.3227/2019 9 deeds executed by the petitioner amounts to filling up the lacuna in prosecution case. 14. Rather than seeking invocation of the power of the court under Section 91 of the Code, it would have been more proper for the prosecutor to get the document from the de facto complainant and to produce it in the court with an application to receive the same. But, it cannot be disputed that, what the prosecutor wanted was to produce the document in court and to receive it in evidence. Technical impropriety, if any, in the procedure adopted by the prosecutor, is not sufficient to justify the invocation of the power of this Court under Section 482 of the Code in favour of the petitioner. 15. The plea that it is not proper or permissible to recall a prosecution witness at the time of final hearing of the case also does not merit acceptance. 16. In **Rajendra Prasad** (supra), the Apex Court has held as follows: _“We cannot therefore accept the contention of the appellant as a legal proposition that the Court cannot exercise power of resummoning any_ Crl.M.C.No.3227/2019 10 _witness if once that power was exercised, nor can the power be whittled down merely on the ground that prosecution discovered laches only when the defence highlighted them during final arguments. The power of the court is plenary to summon or even recall any witness at any stage of the case if the Court considers it necessary for a just decision”._ 17. Section 311 of the Code states that any Court may, at any stage of any inquiry, trial or other proceeding under the Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case. 18. The first part of Section 311 of the Code is permissive and it gives purely discretionary authority to the Court and enables it at any stage of inquiry, trial or other proceedings under the Code to act in one of the three ways, namely, (i) to summon any person as a witness; or (ii) to examine any person in Crl.M.C.No.3227/2019 11 attendance, though not summoned as a witness; or (iii) to recall and re-examine any person already examined. The second part, which is mandatory, imposes an obligation on the Court (i) to summon and examine or (ii) to recall and re-examine any such person if his evidence appears to be essential to the just decision of the case. 19. It is well settled that the power conferred under Section 311 of the Code should be invoked by the Court only to meet the ends of justice. The power is to be exercised only for strong and valid reasons and it should be exercised with great caution and circumspection. The Court has wide power under this provision to even recall witnesses for re-examination or further examination, necessary in the interest of justice, but the same has to be exercised after taking into consideration the facts and circumstances of each case. The power under this provision shall not be exercised if the Court is of the view that the application has been filed as an abuse of the process of law. 20. There is no illegality in summoning or re-calling a witness after the closure of the evidence in the case. The criminal Crl.M.C.No.3227/2019 12 court has ample power to summon any person as a witness or recall and re-examine any such person even if the evidence on both sides is closed and the jurisdiction of the Court must obviously be dictated by exigency of the situation, and fair play and good sense appear to be the only safe guides and only the requirements of justice command the examination of any person which would depend on the facts and circumstances of each case (See **Mohanlal Shamji Soni v. Union of India : AIR 1991 SC 1346** ). 21. In the aforesaid circumstances, the challenge against Annexure-VI order passed by the learned Magistrate fails. The petition is liable to be dismissed. Consequently, the petition is dismissed. (sd/-) ## **R.NARAYANA PISHARADI, JUDGE** jsr/24/10/2019 Crl.M.C.No.3227/2019 13 ## **APPENDIX** **PETITIONER'S EXHIBITS:** **ANNEXURE-1 COPY OF THE APPLICATION IN CMP 100/2019 ANNEXURE-II COPY OF THE COUNTER DATED 2.2.2019 ANNEXURE-III COPY OF THE APPLICATION IN CMP 143/19 ANNEXURE-IV COPY OF THE COUNTER DATED 21.1.2019 ANNEXURE-V COPY OF THE FIR & FINAL REPORT IN CR NO.550/2016** **ANNEXURE-VI COPY OF THE COMMON ORDER IN CMP 100/2019 AND CMP 143/2019 DATED 22.2.2019 OF THE CHIEF JUDICIAL MAGISTRATE COURT, KOZHIKODE** **RESPONDENTS' EXHIBITS: NIL** **TRUE COPY** **PS TO JUDGE**