Kondru Simhachalam vs The State Of Andhra Pradesh
2021 Latest Caselaw 51 AP

Citation : 2021 Latest Caselaw 51 AP
Judgement Date : 7 January, 2021

Andhra Pradesh High Court - Amravati

Kondru Simhachalam vs The State Of Andhra Pradesh on 7 January, 2021

Bench: M.Satyanarayana Murthy

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THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY

              CRIMINAL PETITION NO.94 OF 2021

ORDER:

This Criminal Petition is filed under Section 482 Cr.P.C to

quash the Order in Crl.M.P.No.111 of 2019 in Sessions Case No.39

of 2018 dated 06.02.2020 in the Court of II Additional District &

Sessions Judge, Parvathipuram, Vizianagaram District and direct

the Court below to permit the petitioner to recall the PW2.

The petitioner filed Crl.M.P.No.111 of 2019 in Sessions Case

No.39/2018, dated 06.02.2020 on the Court of II Additional

District and Sessions Judge, Parvathipuram, Vizianagram District

to recall P.W.2 for the purpose of cross examination regarding the

alleged injuries sustained by her. P.W.2 was examined and during

her cross-examination, she was not cross examined with regard to

the injuries said to have sustained by her in the alleged incident

and it will cause prejudice to the accused. Therefore, requested to

recall witness.

But the trial Court passed an elaborate order declining to

exercise jurisdiction under Section 311 of Cr.P.C and dismissed

the petition. Aggrieved by the Order, the petition under Section 482

of Cr.P.C is filed on various grounds.

The main ground urged by the petitioner is that dismissal of

application filed under Section 311 of Cr.P.C amounts to denial of

opportunity to cross examine the witness to elicit the truth and

that unless the witness is cross examined with regard to the

injuries sustained by her, it is difficult for the petitioner to prove

his innocence. But the trial Court erroneously dismissed the

petition setting aside the order recalling of P.W.2 for further cross

examination with regard to the injuries sustained by her in the

incident.

During hearing, learned counsel for the petitioner reiterated

the contentions urged in the petition, whereas the learned Special

Assistant Public Prosecutor submitted the order impugned in the

present petition.

The only ground urged in the petition before this Court is

that by mistake counsel could not cross examine P.W.2 for the

reasons beyond his control with reference to the injuries sustained

by her in the incident.

Section 311 of Cr.P.C states that any Court may, at any

stage of any inquiry, trial or other proceeding under this 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.

Section 311 Cr.P.C contains two limbs. The first limb is

discretion of the Court and the second limb does not confer any

discretion and it is obligatory for the Court to summon, recall and

re-examine a witness, if the Court finds that the evidence of the

proposed witness is necessary to decide the real controversy

between the parties, effectively.

But the Trail Court denied the opportunity to cross-examine

the witness and it is against the principles of fair trail, since, fair

trail is a fundamental right guaranteed under Article 21 of the

Constitution of India.

In "AG Vs. Shiv Kumar Yadav and others", the Apex

Court culled out following principles to be bore in mind for

exercising power under Section 311 Cr.P.C. The guidelines 10,11

and 14 read as follows.

10. Exigency of the situation, fair play and good sense should be the safeguard, while exercising the discretion. The Court should bear in mind that no party in a trial can be foreclosed from correcting errors and that 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.

11. The Court should be conscious of the position that after all the trial is basically for the prisoners and the Court should afford an opportunity to them in the fairest manner possible. In that parity of reasoning, it would be safe to err in favour of the accused getting an opportunity rather that protecting the prosecution against possible prejudice at the cost of the accused. The court should bear in mind that improper or capricious exercise of such a discretionary power, may lead to undesirable results.

14. The power under Section 311 Cr.P.C must therefore, be invoked by the Court only in order to meet the ends of justice for strong and valid reasons and the same must be exercised with care, caution and circumspection. The court should bear in mind that fair trial entails the interest of the accused, the victim and the society and, therefore, the grant of fair and proper opportunities to the person concerned, must be ensured being a constitutional goal, as well as a human right".

In view of the principles laid down in the Judgment referred

supra, it is appropriate to bring entire evidence on record to have

fair trial. Therefore, the order of the trial Court is liable to be

quashed.

In view of the law declared by the Apex Court in various

Judgments referred above, I find that it is a fit case to set aside the

order in Crl.M.P.No.111 of 2019 in Sessions Case No.39 of 2018

dated 06.02.2020 passed by the learned II Additional District and

Sessions, Judge, Parvathipuram, Vizianagaram District, since the

order of the Trial Court is irregular and it impedes the

fundamental right guaranteed to the petitioner i.e., fair trial under

Article 21 of the Constitution of India.