Sunil Kumar v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V TUESDAY, THE 13[TH] DAY OF JUNE 2023 / 23RD JYAISHTA, 1945`** ## **`CRL.MC NO. 7682 OF 2019`** ``` CRLRP42/2019OFDISTRICTCOURT&SESSIONSCOURT,PALAKKAD CMP2887(A)/2019INC.CNO.246/2008OFJUDICIALMAGISTRATEOF FIRSTCLASS,MANNARKAD ``` ## **`PETITIONER/1ST ACCUSED:`** ``` SUNILKUMAR, AGED52YEARS S/O.PAVITHRAN,NIKARTHILHOUSE,EDAKOCHI, ERNAKULAMDISTRICT. ``` ``` BYADVS. P.JAYARAM SRI.SARATHCHANDRANK.B. ``` ## **`RESPONDENT/STATE:`** ``` STATEOFKERALA, REPRESENTEDBYPUBLICPROSECUTOR,HIGHCOURTOF - KERALA,ERNAKULAM682031. ``` ``` SRIVIPINNARAYAN,SRPUBLICPROSECUTOR ``` ``` THISCRIMINALMISC.CASEHAVINGCOMEUPFORADMISSIONON 13.06.2023,THECOURTONTHESAMEDAYPASSEDTHEFOLLOWING: ``` Crl.M.C No.7682 of 2019 2 ## **ORDER** This petition is filed challenging the order dated 9.7.2019 in CMP No.2887(A) of 2019 in C.C No.246 of 2008 on the file of the Judicial Magistrate of the First Class, Mannarkad. By the said order, the learned Magistrate allowed the application filed by the Public Prosecutor under Section 311 of the Code of Criminal Procedure to recall and re-examine PW4 and to accept the certified copy of the Bail Application. The short facts of the case are as under: 2. The petitioner herein is the accused in Crime No.3/2007 of the Chittur Excise Range. Seeking regular Bail, he filed an application before the learned Magistrate, Chittur. His application for bail was rejected, and he was remanded to judicial custody. Immediately thereafter, he took to his heels and attempted to escape from custody. It is alleged that the accused Nos.2 and 3 in the Crime, who had come as sureties, conspired with him and facilitated his escape. 3. In the course of the trial, directions were given by the learned Magistrate to produce the certified copy of the Bail Application dated 13.04.2007 in Crime No.3 of 2007 of Chittur Police Station. However, the Crl.M.C No.7682 of 2019 3 SHO did not produce that document. In the said circumstances, an application was filed by the learned Public Prosecutor, a copy of which is produced as Annexure A3 detailing the entire circumstances, and requested that PW4, the Bench Clerk in the Court of the Judicial Magistrate of the First Class, Chittur be recalled and re-examined and to mark the certified copy of the Bail Application in CR No.3 of 2007 of the Chittoor Excise Range. The learned Magistrate, after considering the contentions advanced by both sides, took the view that the Bail Application was a crucial document that was not seized by the Investigating Officer and not produced before the court. The learned Magistrate was of the view that the Bail Application was a material document, and the production of the same would assist the court in resolving the controversy. The above order was challenged by the petitioner by preferring a revision petition before the Court of Session. However, by Annexure A1 order, the revision petition was dismissed by the learned Sessions Judge. The said order is under challenge. 4. The learned counsel appearing for the petitioner submitted that the application was filed at the fag end of the trial, and the order, if allowed to stand, would result in serious prejudice to the accused. It is further submitted that it was after the closure of prosecution evidence on 31.1.2018 and when the case was posted for examination of the accused under Section Crl.M.C No.7682 of 2019 4 313 that the prosecution had ventured to file the above application. It is further submitted that the intention of the prosecution is to fill up the lacuna in the prosecution case. 5. The learned Public Prosecutor, relying on the judgment of the Apex Court in **Varsha Garg v State of Madhya Pradesh** [2022 SCC Online SC 986] submitted that the criminal 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 the exigency of the situation. The trial Court as well as the Revisional Court, having come to the conclusion that the recalling of the witness and summoning of the document was necessary to advance the course of justice, no interference is warranted. 6. I have considered the submissions advanced. 7. I have detailed the circumstances in which the learned Public Prosecutor filed an application to summon the Bench clerk and produce the certified copy of the bail application. The prosecution alleges that accused Nos.2 and 3 appeared before the Court along with the petitioner to offer themselves as sureties, and that it was with their connivance that the petitioner escaped from custody. The learned Magistrate felt that the copy of the bail application was a vital piece of evidence that needed to be brought Crl.M.C No.7682 of 2019 5 on record. As held by the learned Sessions Court, the belated production of the certified copy of the document cannot be viewed as an attempt by the prosecution to fill a lacuna. The Supreme Court has laid down in **Varsha** (Supra) that the object underlying Section 311 of the Code is to ensure that there is no failure of justice due to a mistake by either party in bringing valuable evidence to record or leaving ambiguities in the statements of witnesses examined from either side. The determinative factor is whether it is essential to the just decision of the case. Section 311 is not limited to the benefit of the accused, and it would not be an improper exercise of the court's powers to summon a witness under the section merely because the evidence supports the case of the prosecution and not that of the accused. Section 311 is a general section that applies to all proceedings, inquiries, and trials under the Code, and it empowers the Magistrate to issue summons to any witness at any stage of such proceedings, trial, or inquiry. The significant expression in Section 311 is "at any stage of any inquiry or trial or other proceeding under this Code." However, it is important to remember that while the section confers a very broad power on the court to summon witnesses, the discretion conferred must be exercised judiciously, as the wider the power, the greater is the need for the application of judicial mind. 8. In paragraph Nos. 36 and 37 of Varsha (supra), it was observed Crl.M.C No.7682 of 2019 6 ## as under 36. Summing up the position as it obtained from various decisions of this Court, namely Rameshwar Dayal v. State of U.P. (1978 (2) SCC 518], State of W.B. v. Tulsidas Mundhra [1963 Supp (1) SCR 1], Jamatraj Kewalji Govani v. State of Maharashtra [AIR 1968 SC 178, Masalti v. State of U.P [AIR 1965 SC 202] Rajeswar Prosad Misra v. State of W.B.[AIR 1965 SC 1887] and R.B. Mithani v. State of Maharashtra [1971 (1) SCC 523], the Court held: “27. The principle of law that emerges from the views expressed by this Court in the above decisions is that the criminal 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 that only the requirements of justice command the examination of any person which would depend on the facts and circumstances of each case.” 37. The power of the court is not constrained by the closure of evidence. Therefore, it is amply clear from the above discussion that the broad powers under Section 311 are to be governed by the requirement of justice. The power must be exercised wherever the court finds that any evidence is essential for the just decision of the case. The statutory provision goes to emphasise that the court is not a hapless bystander in the derailment of justice. Quite to the contrary, the court has a vital role to discharge in ensuring that the cause of discovering truth as an aid in the realization of justice is manifest. Having considered the order passed by the learned Magistrate, I find Crl.M.C No.7682 of 2019 7 that the learned Magistrate has exercised his discretion in a proper manner. In that view of the matter, the order does not warrant any interference. This petition will stand dismissed. Sd/- **RAJA VIJAYARAGHAVAN V, JUDGE** IAP Crl.M.C No.7682 of 2019 8 ## **`APPENDIX OF CRL.MC 7682/2019`** ``` PETITIONER’SANNEXURES: ``` ``` ANNEXUREA1COPYOFTHEORDERDATED26/8/2019IN CRL.R.P.NO.42/2019ONTHEFILESOFCOURT OFSESSIONS,PALAKKAD. ANNEXUREA2COPYOFTHEORDERDATED9/7/2019IN C.M.P.NO.2887(A)/2019INC.C.NO.246/2008 ONTHEFILESOFJUDICIAL1STCLASS MAGISTRATE,MANNARKAD. ANNEXUREA3COPYOFTHEAPPLICATIONIN C.M.P.NO.2887(A)/2019INC.C.NO.246/2008 ONTHEFILESOFJUDICIAL1STCLASS MAGISTRATE,MANNARKAD. ``` ``` ANNEXUREA4COPYOFTHEFINALREPORTINCRIME NO.84/2007OFCHITTURPOLICESTATION, PALAKKAD. ``` ``` ANNEXUREA5COPYOFTHEDEPOSITIONDATED21/2/2017AND 20/2/2018TESTIFIEDBYPW.4IN C.C.NO.246/2008ONTHEFILESOFJUDICIAL 1STCLASSMAGISTRATE,MANNARKAD. ```