Varghese Varghese @ Baiju v State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE GOPINATH P. ``` ``` WEDNESDAY, THE 13[TH] DAY OF DECEMBER 2023 / 22ND AGRAHAYANA, 1945 CRL.MC NO. 10775 OF 2023 ``` ``` CRIME NO.829/2019 OF Erumeli Police Station, Kottayam AGAINST THE ORDER/JUDGMENT SC 127/2020 OF FAST TRACK SPECIAL ``` ## **`COURT, CHANGANASSERY`** ## **`PETITIONER/ACCUSED:`** ``` VARGHESE VARGHESE @ BAIJU AGED 42 YEARS S/O VARGHESE, KOLLAMALAKAROTTU HOUSE, ANGALMELY BHAGHOM, ERUMELY SOUTH VILLAGE, KOTTAYAM DISTRICT ., PIN - 686509 BY ADVS. K.SHAJ BEENA N.KARTHA C.IJLAL POORNIMA RAJAN BHARAT VIJAY P. ARUN CHAND MAJID MUHAMMED K. MINU VITTORRIA PAULSON GOPIKA GOPAL ARCHANA SURESH MEERA NAIR.I.P ``` ## **`RESPONDENT/STATE:`** ``` 1STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM., PIN - 682031 2THE STATION HOUSE OFFICER ERUMELY POLICE STATION, KOTTAYAM DISTRICT, KERALA ., PIN - 686509 ``` ``` SRI. G. SUDHEER (PP) ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 13.12.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` ``` CRL.MC NO. 10775 OF 2023 2 ``` ## **`ORDER`** The petitioner has approached this Court, challenging Annexure A3 order in Crl.M.P. No.191/2023 in S.C. No.127/2020 (arising out of Crime No.829/2019 of Erumeli police station) on the file of the Fast Track Special Court, Changanassery. Crl.M.P. No.191/2023 is an application filed under Section 311 Cr.P.C, seeking to issue summons to one Seena.P.R, the Births and Deaths Registrar, Kanjirappally Grama Panchayat to produce original Births and Deaths Register of the year 2003 along with the certified copy of the relevant page pertaining the details of the date of birth of the survivor and to adduce evidence. There was a further prayer to issue summons to one Sunil P.R, CPO-6479 of Erumeli police station, who accompanied the accused to Government Hospital on 20.06.2019 for conducting potency test. The reasons mentioned for summoning the police official was that the blood sample collected from the accused for DNA profiling by the medical practitioner and the potency certificate issued by the medical practitioner were handed over to the said CPO and he had produced the same before the investigating officer. The said CPO was not cited as a witness in the charge sheet and was therefore not examined. The learned Special Judge, on ``` CRL.MC NO. 10775 OF 2023 3 ``` ## consideration of the application, held as follows:- ‘’6. On perusing the case records it seen that earlier CW18, Shahul Hameed, the Secretary, Registrar of Births and Deaths, Kanjirappally who has issued the birth certificate of the survivor was examined as PW16. The said birth certificate was marked through him as Ext.P16. Marking of the said document was objected on the ground that it lacks certification as required under Section 65(4)B of the Evidence Act. At the time of marking Ext.P116 it’s evidentiary admissibility was deferred to be decided at the time of final hearing by my learned predecessor in office. Thereafter the prosecution has filed petition to issue summons to five more witnesses. PW16 was one among those witnesses. Though that petition was allowed the said witness is not seen re-summoned. 7. During the course of final hearing the prosecution has filed the present petition. According to prosecution so as to prove Ext.P16 birth certificate which was marked subject to objection the original register wherein the entries with respect to the date of birth of PW1 was noted has to be produced. 8. By producing the original birth register that contains the birth details of the survivor and examining the Registrar of Births and Deaths and also the CPO-6479, Erumeli police station no prejudice would be caused to the accused. Since it is felt that the evidence of those two witnesses are essential for the just decision of the case, I am inclined to allow this petition. Accordingly this petition is allowed.’’ 2. Learned counsel appearing for the petitioner would submit that the order passed by the learned Special Judge in Crl.M.P. No.191/2023 in S.C. No.127/2020, is illegal and unsustainable in law. It is submitted that, a petition under Section 311 Cr.P.C, cannot be filed by the prosecution at the fag end of trial to fill up any lacuna in the prosecution case. It is submitted that, after the defence evidence had also been closed and arguments were addressed before the court and ``` CRL.MC NO. 10775 OF 2023 4 ``` detailed argument notes were filed before the court, it was improper on the part of the court to allow the application filed under Section 311 Cr.P.C. It is submitted that the order causes severe prejudice to the petitioner/accused and therefore, the order is liable to be set aside. 3. Learned Public Prosecutor refers to Annexure A3 order and states that sufficient reasons are given in Annexure A3 order as to why the application filed by the prosecution under Section 311 Cr.P.C has to be allowed. It is submitted that this question was considered by the Supreme Court in its recent decision in **Varsha Garg V. State of Madhya Pradesh [2022 SCC OnLine SC 986]** , where the Supreme Court considered the scope of the power exercised by the court under Section 311 Cr.P.C. It is submitted that the matter was again considered by the Supreme Court in a recent judgment in **Satbir Singh V. State of Haryana and Ors. [2023 SCC OnLine SC 1086]** , where also the parametres of exercise of jurisdiction under Section 311 Cr.P.C had been considered by the Supreme Court. 4. Having heard the learned counsel appearing for the petitioner and the learned Public Prosecutor, I am of the ``` CRL.MC NO. 10775 OF 2023 5 ``` opinion that the petitioner has not made out any case for interference with Annexure A3 order. It is seen from Annexure A3 order that one Shahul Hameed, Secretary/ Registrar of Births and Deaths Kanjirappally, had been examined by the court as PW16 and the birth certificate of the survivor/victim was marked through him as Ext.P16. The marking of Ext.P16 document appears to have been objected by the defence stating that it lacks necessary certification under Section 65(4)B of the Evidence Act. The Special Court has observed that since objection was raised as above by the learned defence counsel, the question of admissibility of that document was deferred to be decided at the final hearing by the predecessor officer. It was noted that prosecution had filed a petition to issue summons to five more witnesses, including PW16, who had earlier been examined. It was also noted that though the said petition had been allowed, the witnesses in question were not re-examined. It is noted in Paragraph No.7 of Annexure A3 order that since marking of the birth certificate was earlier objected to, it is necessary to produce the original register and for that purpose, the Registrar of Births and Deaths, Kanjirappally Grama Panchayat, has to be summoned to give evidence along with the originals of the Register pertaining to ``` CRL.MC NO. 10775 OF 2023 6 ``` the year 2003. Regarding the other witness who was sought to be summoned and examined, the said police officer was sought to be examined on account of the fact that it was the said officer, who accompanied the accused to the medical practitioner from where the blood sample of the petitioner was taken for the purposes of DNA profiling. It is also stated before the court that the said officer had received the potency certificate and handed it over to the investigating officer and this police officer had not been cited as a witness in the charge sheet. It was in such circumstances that the Special Court had allowed the application filed by the prosecution under Section 311 Cr.P.C. ## 5. In **Satbir Singh (supra)** , it was held as follows:- ‘’9. Section 311 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the “CrPC”) has engaged this Court’s attention before. We will advert to a few decisions of recent vintage. While overturning an order of the High Court allowing an application for recall of a witness, which was rejected by the trial Court, this Court held as under, in Ratanlal v Prahlad Jat, (2017) 9 SCC 340: ‘ 17.In order to enable the court to find out the truth and render a just decision, the salutary provisions of Section 311 are enacted whereunder any court by exercising its discretionary authority at any stage of inquiry, trial or other proceeding can summon any person as witness or examine any person in attendance though not summoned as a witness or recall or reexamine any person already examined who are expected to be able to throw light upon the matter in dispute. The object of the provision as a whole is to do justice not only from the point of view of the accused and the prosecution but also from the point of view of an orderly society. This power is to be exercised only for strong and valid reasons and it ``` CRL.MC NO. 10775 OF 2023 7 ``` should be exercised with caution and circumspection. Recall is not a matter of course and the discretion given to the court has to be exercised judicially to prevent failure of justice. Therefore, the reasons for exercising this power should be spelt out in the order. 18. In Vijay Kumar v.State of U.P.[Vijay Kumar v.State of U.P., (2011) 8 SCC 136 : (2011) 3 SCC (Cri) 371 : (2012) 1 SCC (L&S) 240], this Court while explaining scope and ambit of Section 311 has held as under: (SCC p. 141, para 17) “17.Though Section 311 confers vast discretion upon the court and is expressed in the widest possible terms, the discretionary power under the said section can be invoked only for the ends of justice. Discretionary power should be exercised consistently with the provisions of [CrPC] and the principles of criminal law. The discretionary power conferred under Section 311 has to be exercised judicially for reasons stated by the court and not arbitrarily or capriciously.” 19.In Zahira Habibullah Sheikh (5) v. State of Gujarat [Zahira Habibullah Sheikh (5) v.State of Gujarat, (2006) 3 SCC 374 : (2006) 2 SCC (Cri) 8] , this Court has considered the concept underlying under Section 311 as under: (SCC p. 392, para 27) “27.The object underlying Section 311 of the Code is that there may not be failure of justice on account of mistake of either party in bringing the valuable evidence on record or leaving ambiguity in the statements of the witnesses examined from either side. The determinative factor is whether it is essential to the just decision of the case. The section is not limited only for the benefit of the accused, and it will not be an improper exercise of the powers of the court to summon a witness under the section merely because the evidence supports the case of the prosecution and not that of the accused. The section is a general section which applies to all proceedings, enquiries and trials under the Code and empowers the Magistrate to issue summons to any witness at any stage of such proceedings, trial or enquiry. In Section 311 the significant expression that occurs is “at any stage of any inquiry or trial or other proceeding under this Code”. It is, however, to be borne in mind that whereas the section confers a very wide power on the court on summoning witnesses, the discretion conferred is to be exercised judiciously, as the wider the power the greater is the necessity for application of judicial mind.” 20.In State (NCT of Delhi) v. Shiv Kumar Yadav [State (NCT of Delhi) v. Shiv Kumar Yadav, (2016) 2 SCC 402 : (2016) 1 SCC (Cri) 510], it was held thus: (SCC pp. 404g-405a) “… Certainly, recall could be permitted if essential for the just decision, but not on such consideration as has been adopted in the present case. Mere observation that recall was necessary “for ensuring fair trial” is not enough unless there are tangible reasons to show ``` CRL.MC NO. 10775 OF 2023 8 ``` how the fair trial suffered without recall. Recall is not a matter of course and the discretion given to the court has to be exercised judiciously to prevent failure of justice and not arbitrarily. While the party is even permitted to correct its bona fide error and may be entitled to further opportunity even when such opportunity may be sought without any fault on the part of the opposite party, plea for recall for advancing justice has to be bona fide and has to be balanced carefully with the other relevant considerations including uncalled for hardship to the witnesses and uncalled for delay in the trial. Having regard to these considerations, there is no ground to justify the recall of witnesses already examined.” 21. The delay in filing the application is one of the important factors which has to be explained in the application. In Umar Mohammad v. State of Rajasthan [Umar Mohammad v.State of Rajasthan, (2007) 14 SCC 711 : (2009) 3 SCC (Cri) 244] , this Court has held as under: (SCC p. 719, para 38) “38. Before parting, however, we may notice that a contention has been raised by the learned counsel for the appellant that PW 1 who was examined in Court on 5-7-1994 purported to have filed an application on 1-5-1995 stating that five accused persons named therein were innocent. An application filed by him purported to be under Section 311 of the Code of Criminal Procedure was rejected by the learned trial Judge by order dated 13-5-1995. A revision petition was filed thereagainst and the High Court also rejected the said contention. It is not a case where stricto sensu the provisions of Section 311 of the Code of Criminal Procedure could have been invoked. The very fact that such an application was got filed by PW 1 nine months after his deposition is itself a pointer to the fact that he had been won over. It is absurd to contend that he, after a period of four years and that too after his examinationin-chief and crossexamination was complete, would file an application on his own will and volition. The said application was, therefore, rightly dismissed. 10. In Manju Devi v State of Rajasthan, (2019) 6 SCC 203, this Court emphasized that a discretionary power like Section 311, CrPC is to enable the Court to keep the record straight and to clear any ambiguity regarding the evidence, whilst also ensuring no prejudice is caused to anyone. A note of caution was sounded in Swapan Kumar Chatterjee v Central Bureau of Investigation, (2019) 14 SCC 328 as under: '10.The first part of this section which is permissive gives purely discretionary authority to the criminal 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 attendance, though not summoned as a witness; or (iii) to recall and re-examine any person already examined. The ``` CRL.MC NO. 10775 OF 2023 9 ``` 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. 11. It is well settled that the power conferred under Section 311 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 vide power under this section 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. ## In **Varsha Garg (supra)** , it was held as follows:- ‘’28. Having clarified that the bar under Section 301 is inapplicable and that the appellant is well placed to pursue this appeal, we now examine Section 311 of CrPC. Section 311 provides that the Court, ’’may’’: (i) Summon any person as a witness or to examine any person in attendance, though not summoned as a witness; and (ii) Recall and re-examine any person who has already been examined. This power can be exercised at any stage of any inquiry, trial or other proceeding under the CrPC. The latter part of Section 311 states that the Court ‘’shall’’ summon and examine or recall and reexamine any such person ‘’if his evidence appears to the Court to be essential to the just decision of the case’’. Section 311 contains a power upon the Court in broad terms. The statutory provision must be read purposively, to achieve the intent of the statute to aid in the discovery of truth. 29. The first part of the statutory provision which uses the expression ‘’may’’ postulates that the power can be exercised at any stage of an inquiry, trial or other proceeding. The latter part of the provision mandates the recall of a witness by the Court as it uses the expression ‘’shall summon and examine or recall and reexamine any such person if his evidence appears to it to be essential to the just decision of the case.’’ Essentiality of the evidence of the person who is to be examined coupled with the need for the just decision of the case constitute the touchstone which must guide the decision of the Court. The first part of the statutory provision is discretionary ``` CRL.MC NO. 10775 OF 2023 10 ``` ## while the latter part is obligatory. 32. 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. 42. The Court is vested with a broad and wholesome power, in terms of Section 311 of the CrPC, to summon and examine or recall and re-examine any material witness at any stage and the closing of prosecution evidence is not an absolute bar. This Court in Zahira Habibulla H. Sheikh (supra) while dealing with the prayers for adducing additional evidence under Section 391 CrPC at the appellate stage, along with a prayer for examination of witnesses under Section 311 CrPC explained the role of the court, in the following terms: 43. The courts have to take a participatory role in a trial. They are not expected to be tape recorders to record whatever is being stated by the witnesses. Section 311 of the Code and Section 165 of the Evidence Act confer vast and wide powers on presiding officers of court to elicit all necessary materials by playing an active role in the evidence collecting process. They have to monitor the proceedings in aid of justice in a manner that something, which is not relevant, is not unnecessarily brought into record. Even if the prosecutor is remiss in some ways, it can control the proceedings effectively so that the ultimate objective i.e. truth is arrived at. This becomes more necessary where the court has reasons to believe that the prosecuting agency or the prosecutor is not acting in the requisite manner. The court cannot afford to be wishfully or pretend to be blissfully ignorant or oblivious to such serious pitfalls or dereliction of duty on the part of the prosecuting agency. The prosecutor who does not act fairly and acts more like a counsel for the defence is a liability to the fair judicial system, and courts could not also play into the hands of such prosecuting agency showing indifference or adopting an attitude of total aloofness.’’ (emphasis supplied) Further, in Zahira Habibullah Sheikh (supra), the Court reiterated the extent of powers under Section 311 and held that: 27. The object underlying Section 311 of the Code is that there may not be failure of justice on account of mistake of either party in bringing the valuable evidence on record or leaving ambiguity in the ``` CRL.MC NO. 10775 OF 2023 11 ``` statements of the witnesses examined from either side. The determinative factor is whether it is essential to the just decision of the case. The section is not limited only for the benefit of the accused, and it will not be an improper exercise of the powers of the court to summon a witness under the section merely because the evidence supports the case of the prosecution and not that of the accused. The section is a general section which applies to all proceedings, enquiries and trials under the Code and empowers the Magistrate to issue summons to any witness at any stage of such proceedings, trial or enquiry. In Section 311 the significant expression that occurs is “at any stage of any inquiry or trial or other proceeding under this Code”. It is, however, to be borne in mind that whereas the section confers a very wide power on the court on summoning witnesses, the discretion conferred is to be exercised judiciously, as the wider the power the greater is the necessity for application of judicial mind. ## (emphasis supplied) 43. The Court while reiterating the principle enunciated in Mohanlal Shamji Soni (supra) stressed upon the wide ambit of Section 311 which allows the power to be exercised at any stage and held that: 44. The power of the court under Section 165 of the Evidence Act is in a way complementary to its power under Section 311 of the Code. The section consists of two parts i.e.: (i) giving a discretion to the court to examine the witness at any stage, and (ii) the mandatory portion which compels the court to examine a witness if his evidence appears to be essential to the just decision of the court. Though the discretion given to the court is very wide, the very width requires a corresponding caution. In Mohanlal v. Union of India this Court has observed, while considering the scope and ambit of Section 311, that the very usage of the words such as, ‘’any court, at any stage, or any enquiry or trial or other proceedings, any person and any such person’’ clearly spells out that the section has expressed in the widest possible terms and do not limit the discretion of the court in any way. However, as noted above, the very width requires a corresponding caution that the discretionary powers should be invoked as the exigencies of justice require and exercised judicially with circumspection and consistently with the provisions of the Code. The second part of the section does not allow any discretion but obligates and binds the court to take necessary steps if the fresh evidence to be obtained is essential to the just decision of the case, “essential” to an active and alert mind and not to one which is bent to abandon or abdicate. Object of the section is to enable the court to arrive at the truth ``` CRL.MC NO. 10775 OF 2023 12 ``` irrespective of the fact that the prosecution or the defence has failed to produce some evidence which is necessary for a just and proper disposal of the case. The power is exercised and the evidence is examined neither to help the prosecution nor the defence, if the court feels that there is necessity to act in terms of Section 311 but only to subserve the cause of justice and public interest. It is done with an object of getting the evidence in aid of a just decision and to uphold the truth. (emphasis supplied) 6. In the above circumstances, I am clear in my mind that the contention raised by the learned counsel appearing for the petitioner that the attempt of the prosecution is to fill up lacuna in the prosecution evidence, cannot be accepted. It is clear from the judgment of the Supreme Court in **Varsha Garg** **(supra)** that Section 311 Cr.P.C is to be interpreted purposively, to aid in the discovery of truth. The court is not shackled by procedural limitations to issue summons and examining witnesses where sufficient cause has been made out for issuance of such summons to a witness sought to be examined. In that view of the matter, I am of the opinion that the petitioner has not made out any case for interference. This Crl.M.C will stand dismissed in limine. . ``` Sd/- ``` ``` GOPINATH P. JUDGE ``` ajt ``` CRL.MC NO. 10775 OF 2023 13 ``` ## **`APPENDIX OF CRL.MC 10775/2023`** ``` PETITIONER ANNEXURES Annexure A1. A TRUE COPY OF THE PETITION FILED BY THE SPECIAL PUBLIC PROSECUTOR UNDER SECTION 311 OF CR. P.C. Annexure A2A TRUE COPY OF THE REJOINDER TO THE PETITION FILED BY THE SPECIAL PUBLIC PROSECUTOR UNDER SECTION 311 OF CR. P.C. Annexure A3THE CERTIFIED COPY OF THE ORDER DATED 11/12/2023 IN CRL. M. P. NO. 191/2023 IN S.C. NO. 127/2020 BEFORE THE HON'BLE FAST TRACK SPECIAL JUDGE, CHANGANACHERRY . ```