Andhra Pradesh High Court - Amravati

T.S. Ramesh vs The State Of Andhra Pradesh on 28 November, 2022

                                         1



      IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVATI
            THE HON'BLE SRI JUSTICE NINALA JAYASURYA
                   CRIMINAL PETITION NO.4224 of 2022
Between:-

1) T.S. Ramesh
2) B.Ramadevi                                .....              Petitioners/A.1 & A2

                                        And
The State of Andhra Pradesh,
represented by Public Prosecutor,
High Court of Andhra Pradesh,
Amaravati.                                   .....                     Respondent

Counsel for the Petitioner         : Mr.P.S.P.Suresh Kumar

Counsel for the Respondent         : Learned Assistant Public Prosecutor

ORDER:

The present Criminal Petition is filed seeking to quash the Order dated

13.06.2022 passed in Crl.M.P.No.497 of 2022 in S.C.No.398 of 2019 on the

file of the Court of the Principal Sessions Judge, Chittoor.

2. The petitioners herein are Accused Nos.1 & 2, facing Criminal Trial for

the offences punishable under Sections 120-B and 302

R/w Section 34 of Indian Penal Code (for short „IPC‟).

The Police, Bangarupalem Police Station, laid a Charge Sheet against the

petitioners, the contents of which, in brief are as follows:-

The deceased married A.2 about 12 years back and blessed with two sons. A.2 is running a Supplier Shop at Cherlopalli Village, Chittoor Mandal, in the name and style of „Srikrishna Suppliers‟, whereas, A.1 is running a Clinic in the Shop belongs to L.W.7, situated near to the Suppliers Shop of A.2. A.1 & A.2 developed illegal sexual

intimacy A.1 was using Mobile Nos.9395361267 & 9701873637 and A.2 was using Mobile No.7680041244. They frequently contact over Mobile and now and then visited Lodges by posing themselves as „husband‟ and „wife‟. They took a room in R.R Residency Hotel, Kattamanchi, Chittoor on 02.09.2017 and 28.02.2018 by posing themselves as „husband‟ and „wife‟ and gave their Adhar Cards as I.D proof to the Lodge Managers i.e., L.Ws 8 & 9. The deceased came to know the same through his mother (L.W.10), warned A.1 to discontinue his illegal relationship with A.2. When, A.1 not cared the warning of the deceased and continued his illegal intimacy with A.2, the deceased went to the house of A.1, informed to the wife of A.1 about the illegal intimacy between A.1 & A.2 and requested her to control A.1 and the same was witnessed by L.Ws 11 & 12. This lead the accused to bore grudge against the deceased, conspired together, hatched a plan to eliminate the deceased and waiting for an opportunity.

While so, on 11.05.2018, the deceased along with A.2 and their children went to the house of his younger sister at Beripalli Village of Bangarupalem Mandal, A.2 contacted A.1 over phone and asked to execute their plan to kill the deceased with a vehicle so as to create the death occurred in a road accident. In pursuance of their conspiracy, on 12.05.2018 A.1 took one Tata Sumo vehicle bearing registration No.AP 03 BB 6107 of L.W.6, on the pretext of test drive, purchased a water bottle from the petty shop of L.W.13, waited by parking the vehicle on Mittapalli-Nunegundlapalli road side, near Nunegundlu area, Bangarupalem Mandal, covering his face by wearing helmet and the same was witnessed by L.Ws 4 & 14. At about 1.00 p.m, the deceased alone left Beripalli Village on his Hero Honda Splendor Motor Cycle bearing registration No.AP 03 BB 6107 to go to Cherlopalli Village and A.2 passed the above information over phone to A.1 and alerted him. When the deceased alone was proceeding towards Cherlopalli Village on his motor cycle, A.1 moved Tata Sumo vehicle from the above

mentioned place, drove it in high speed on Mittapalli-Nunegundlapalli road and dashed the motor cycle of the deceased near Noonegundu Area, Noonegundlapalle Village, Bangaruplame Mandal, with an intention to kill him, though the deceased was passing on the extreme left side of the road, dragged him to a distance of about 40 feet on the road and killed him on the spot.

Initially L.W.29 conducted the investigation, which was later on taken up by L.W.30, who recorded the statements of L.Ws 8 & 9 i.e., Managers of R.R. Residency/Lodge, seized blood stained clothes of the deceased in Bangarupalem Police Station, seized the Arrival Registers of the Lodge etc, recorded the statements of independent witnesses i.e., L.Ws 10 to 14 and the Nodal Officer, Bharathi Airtel Limited, Hyderabad (L.W.26) furnished the Call Data Record (CDR) pertaining to the Mobile Numbers of A.1 i.e., 9395361267 & 9701873637 and A.2 i.e., 7680041244 and also Customer Application Forms of the above mobile numbers under Section 65-B(4)(c) of Indian Evidence Act, 1972, which disclosed that both the accused chatted frequently before and after the incident.

3. After committal of the case to the Sessions Court, the same was

numbered as S.C.No.398 of 2019 on the file of the Court of the Principal

Sessions Judge, Chittoor. On the Prosecution side, P.Ws 1 to 20 were

examined, the evidence was closed on 11.04.2022 and thereafter on

completion of examination of the accused under Section 313 Cr.P.C, the

matter was posted for arguments on 12.05.2022. At that juncture, the

Prosecution filed a petition in Crl.M.P.No.497 of 2022 under Section

311 Cr.P.C to receive the Call Data Record (CDR) and recall P.W.20 to mark

the same and give evidence in that regard. The petitioners/accused opposed

the said petition, by filing separate Counters. The Principal Sessions Judge,

Chittoor, after detailed consideration of the matter, by an Order dated

13.06.2022, allowed the above said Miscellaneous Petition. Aggrieved by

which, the present Criminal Petition came to be filed.

4. Heard Mr.P.S.P. Suresh Kumar, learned counsel for the petitioners

and the learned Assistant Public Prosecutor for the respondent-State.

5. The learned counsel for the petitioners, inter alia, strenuously

contended that the order under challenge is un-sustainable and liable to be

set aside for more than one reason. Stating that the impugned order was

passed without considering the several contentions raised by the petitioners,

the learned counsel would submit that the Miscellaneous Petition as is filed

under Section 311 Cr.P.C to recall the witness without filing a separate

application to receive the documents is not maintainable and the Learned

Sessions Judge ought to have dismissed the petition in question solely on

that ground. He further contends that the reason, as sought to be assigned

in the petition that the CDR was misplaced and mixed with some records,

therefore the same could not be traced out and that as it was traced out

recently, the same is sought to be filed by recalling the Investigating

Officer/P.W.20 cannot be appreciated. He submits that the Prosecution filed

the Miscellaneous Petition in question at a belated stage after completion of

the evidence and examination of the accused under Section 313 Cr.P.C, only

with a view to fill up the lacuna in the Prosecution evidence. While

contending that the CDR, which is sought to be filed, is fabricated and as

seen from the material on record, it contains the date as 29.04.2022, which

would go to show that it is not forming part of the original investigation and

therefore the same cannot be received as evidence.

6. In elaboration, he submits that that the Charge Sheet was filed on

13.02.2019 and in terms of Section 173(5) Cr.P.C, all the documents have to

be filed along with the Charge Sheet and as contemplated under Section

207 Cr.P.C, have to be supplied to the petitioners/accused, that the CDR

dated 29.04.2022 is not a document forming part of the investigation and

the same cannot be received in evidence. He contends that if at all it is

really available, the same should not contain the date as 29.04.2022. He

submits that Police can conduct further investigation with the leave of the

Court under Section 173(8) Cr.P.C and file material/documents, but no such

procedure was followed which goes to the root of the matter. He contends

that if the Prosecution is allowed to file the said CDR as evidence that too

when the matter is posted for arguments, the petitioners/accused will not

have an opportunity to question the genuineness of CDR and as a result of

the same, the petitioners/accused would be deprived of fair Trial. He

submits that the learned Sessions Judge failed to appreciate all the relevant

aspects in a proper perspective and therefore the order under challenge is

liable to be set aside, in exercise of powers under Section 482 Cr.P.C.

Else, the rights of the petitioners would be jeopardized. Making the said

submissions, the learned counsel seeks to set aside the order of the Learned

Sessions Judge. In support of his contentions, he places reliance on the

decisions reported in Rajesh Talwar and Another vs. Central Bureau of

Investigation and Another1, State (NCT of Delhi) vs. Shiv Kumar

Yadav and Another2 and Gogula Ramanaiah vs. State of Andhra

Pradesh3.

7. The learned Assistant Public Prosecutor on the other hand contends

that the order passed by the Learned Principal Sessions Judge contains

cogent reasons and is in exercise of the discretionary powers under Section

311 Cr.P.C. He submits that the Learned Sessions Judge after considering

the matter at length recorded categorical finding that the evidence/CDR

sought to be filed by the Prosecution is not only essential to prove the case

of the Prosecution, but also essential to arrive at a just decision of the case

and in such circumstances, more particularly, in the factual background of

the case, the order under challenge warrants no interference by this Court.

Contradicting the contentions with regard to date of the Call Data and

drawing the attention of this Court to the relevant dates in the CDR,

he points out that the Data pertains to the Mobile Phones used by A.1 & A.2

during the relevant period i.e., 2017 and 2018, which was obtained from the

concerned Nodal Agency, and submits that the contention that the same is

fabricated merits no consideration. He further submits that the contention

2014 1 SCC 628

2016 2 SCC 402

2017 LawSuit(Hyd)907

that the CDR is dated 29.04.2022 and it was obtained after completion of

investigation is misconceived and as is evident from the Charge Sheet, the

Call Data was furnished by the concerned Nodal Officer, but the same could

not be filed due to the reasons set out in the Miscellaneous Petition. He

further submits that as the matter is still at the stage of arguments, a

separate application is not required to be filed. He also submits that for

prosecuting the case more effectively, the CDR is required and by mere filing

of the document/CDR, no prejudice would be caused to the petitioners, as

the Prosecution witnesses can be cross-examined and the admissibility,

relevancy etc., of the document/material sought to be filed would be

considered as observed by the Learned Sessions Judge, at the appropriate

stage. Resting his arguments, the learned Assistant Public Prosecutor urges

for dismissal of the Criminal Petition.

8. Considering the submissions made and perusing the material on

record, the point that falls for adjudication by this Court is „Whether the

order under challenge is not sustainable, in the facts and circumstances of

case‟?

9. Before adverting to the rival contentions, it would be appropriate to

refer to the relevant provision of Law, under which, the application in

question was filed. Section 311 Cr.P.C deals with the powers of the Court to

summon material witness or examine person present, in the following

terms:-

"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."

10. The above provision of Law confers wide powers on the Court with

regard to summoning a witness, recall and re-examine any witness already

examined. The Hon‟ble Supreme Court on number of occasions had

interpreted the said provision of Law and the relevant decisions would be

referred to at the appropriate stage. Suffice to state that the invocation of

the said provision and its application in a particular case can be appreciated

by the Court keeping in view the object and purport of the said provision

i.e., achieving a just decision of the case. It is also settled Law that the

power under Section 311 Cr.P.C can be invoked by the Prosecution or by the

accused persons or by the Court itself.

11. In the present case, the Prosecution invoked the said provision of Law

through the petition in question and sought to file the CDR by recalling

P.W.20/Investigating Officer on the premise that the same could not be filed

as it was misplaced. In the petition, it was specifically stated that the Call

Data Conversation between A.1‟s mobile and A.2‟s mobile on the date of the

offence i.e., on 12.05.2018 is an important and material document to prove

the Prosecution case and therefore P.W.20, the Investigating Officer, who

deposed about the Call Data and about the calls between A.1 & A.2 was

sought to be recalled. As seen from the petition in question, the CDR is in

respect of the calls between Mobile No.7680041244, Mobile

Nos.9395361267 and 9701873637 from 01.10.2017 to 13.05.2018. Even as

per the Charge Sheet, the Nodal Officer, Bharati Airtel Limited., Hyderabad

(L.W.26) furnished the Call Data pertaining to the said Mobile numbers.

In such circumstances, the contention that the Call Data was fabricated to

fill up the lacuna in the Prosecution evidence, merits no acceptance, merely

because the message forwarding the same contains the data as 29.04.2022

and more particularly in the light of the Certificate dated 29.10.2018 under

Section 65-B(4) of the Indian Evidence Act certifying the retrieval of

information from the records pertaining to the above referred mobiles.

Further, in the considered opinion of this Court, no prejudice would be

caused, as the said data relates to the relevant period, and the

petitioners/accused as contended by the learned counsel for the State,

would have an opportunity to cross examine the Prosecution witnesses.

In so far as the admissibility of the document/material is concerned,

the same would have to be considered, subject to proof and relevancy and

mere filing of the material/CDR, would not establish the case of the

Prosecution. In the present case, the Learned Sessions Judge opined that

the said material is essential to arrive at a just decision of the case while

observing that the admissibility and reliability of the document would be

decided at the time of Full Trial. Therefore, the contentions advanced by the

learned counsel for the petitioners in this regard are rejected.

12. In Gogula Ramanaiah‟s case, a Learned Division Bench of the

erstwhile Common High Court for the State of Telangana and the State of

Andhra Pradesh was inter alia dealing with an issue as to whether non-

furnishing of statement of witness recorded under Section

164 Cr.P.C which was forwarded to the concerned Court by the officer who

recorded the statement, caused any prejudice to the accused and whether

the accused have summoned the statement from the concerned Court when

he was aware about the existence of such statement? Looking to the facts

and circumstances of the case, the Hon‟ble Division Bench, while opining

that non-furnishing of such statement recorded under Section 164 Cr.P.C

during the course of investigation would definitely cause prejudice to the

accused, held that an adverse inference has to be drawn for non-supply of

crucial material to the accused and set aside the order of conviction under

Section 302 IPC.

13. State (NCT of Delhi) referred to above is a matter where the

Hon‟ble Supreme Court was examining an issue as to whether recall of

witnesses, at the stage when the statement of accused under Section 313 of

the Cr.P.C has been recorded, could be allowed on the plea that the defence

counsel was not competent and had not effectively cross-examined the

witnesses. In the said case, the evidence of the prosecution witnesses was

closed after due cross-examination by the counsel for the accused and the

statement of accused under Section 313 Cr.P.C was recorded. Thereafter,

the accused engaged another counsel who filed an application under Section

311 Cr.P.C for recall of all the 28 prosecution witnesses. The said application

was dismissed by the Learned Sessions Judge, and the order was set aside

by the High Court. The Hon‟ble Supreme Court was inclined to interfere with

the order passed by the High Court holding that not a single specific reason

has been assigned by the High Court as to how recall of as many as

13 witnesses was necessary as directed under the order under challenge.

14. In Rajesh Talwar referred to supra, the Hon‟ble Supreme Court was

dealing with a Special Leave Petition filed against the order of High Court.

Before the Trial Court, when statements of accused are being recorded

under Section 313 Cr.P.C, an application was filed on behalf of the accused

under Section 311 Cr.P.C, along with another application under Section 233

Cr.P.C R/w Section 91 Cr.P.C seeking certain documents i.e., Narco-analysis

reports etc., The said applications were partly allowed by the Trial Court and

on appeal the same was confirmed. The Hon‟ble Supreme Court was pleased

to dismiss the S.L.P inter alia holding that the Criminal Courts are not

obliged to accede to the request made by any party to entertain and allow

application for additional evidence and are bound in terms of Section 233(3)

Cr.P.C to refuse such request, if it appears that they are made in order to

vex the proceedings or delay the same.

15. There is no dispute with regard to the expression of the Hon‟ble

Supreme Court in the attending facts and circumstances of the cases

referred to above. The said decisions in the opinion of this Court, would be

of no much aid to the case on hand.

16. One of the contentions advanced by the learned counsel for the

petitioners is with regard to filing of the Miscellaneous Petition under Section

311 Cr.P.C without filing a separate application to receive the document also

needs to be considered. As per Section 173(5) Cr.P.C in respect of a case to

which Section 170 Cr.P.C applies, the Police Officer shall forward to the

Magistrate along with the record; (a) All documents or relevant extracts

thereof on which the Prosecution proposes to rely other than those already

sent to the Magistrate during the investigation and (b) The statements

recorded under Section 161 Cr.P.C of all the persons to whom, the

Prosecution proposes to examine as witnesses.

17. Placing reliance on the said provision, the learned counsel submitted

that as the CDR has not been forwarded to the Magistrate, in terms of the

said provision of Law, the same cannot be received as evidence. The said

submission of the learned counsel, though appears to be tenable at the first

blush, however, mere non-filing of a separate application is not fatal or

preclude the Court to receive any document, in exercise of its powers under

Section 311 Cr.P.C, if, in the opinion of the Court, some material is essential

to meet the ends of justice. In this regard, it is appropriate to refer to the

principles laid down by the Hon‟ble Supreme Court in Rajaram Prasad

Yadav vs. State of Bihar and Another [(2013) 14 SCC 469] relied on

by the Learned Sessions Judge, while allowing the application in question,

which, inter alia, reads thus:

"a) Whether the Court is right in thinking that the new evidence is needed by it? Whether the evidence sought to be led in under Section 311 is noted by the Court for a just decision of a case?

b) The exercise of the widest discretionary power under Section 311 Cr.P.C. should ensure that the judgment should not be rendered on inchoate, inconclusive speculative presentation of facts, as thereby the ends of justice would be defeated.

c) If evidence of any witness appears to the Court to be essential to the just decision of the case, it is the power of the Court to summon and examine or recall and re-examine any such person.

d) The exercise of power under Section 311 Cr.P.C. should be resorted to only with the object of finding out the truth or obtaining proper proof for such facts, which will lead to a just and correct decision of the case. ..............................................".

18. Even in the latest Judgment, the Hon‟ble Supreme Court in

V.N. Patil vs. K.Niranjan Kumar and Others [(2021) 3 SCC 661]

while dealing with the said provision of Law viz., Section 311 Cr.P.C, inter

alia, held as follows:-

"Para 14: The object underlying Section 311 CrPC 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 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 the discretionary power conferred

under Section 311 CrPC has to be exercised judiciously, as it is always said "wider the power, greater is the necessity of caution while exercise of judicious discretion.

Para 17: The aim of every Court is to discover the truth. Section 311 CrPC is one of many such provisions which strengthen the arms of a court in its effort to unearth the truth by procedure sanctioned by law. At the same time, the discretionary power vested under Section 311 CrPC has to be exercised judiciously for strong and valid reasons and with caution and circumspection to meet the ends of justice. Para 21: In the instant case, although the application was filed by the Ld. Additional Special Public Prosecutor under Section 173(5) read with Section 311 CrPC but it was open for the Ld. Trial Judge as well to exercise suo motu powers in summoning the witnesses whose statements ought to be recorded to subserve the cause of justice, with the object of getting the evidence in aid of a just decision and to uphold the truth."

19. It is also well settled Law that the powers under Section 482 Cr.P.C

have to be exercised sparingly only when there is patent error or gross

injustice in the view taken by the Subordinate Courts.

20. In the present case, the Learned Sessions Judge after referring to the

factual matrix and after detailed discussion referring to the relevant case

Law had come to a conclusion that the material/CDR, which is sought to be

filed is essential for arriving at a just decision and the discretion, as

exercised by the Learned Sessions Judge, cannot be treated as perverse or

irregular. This Court finds no reasons to interfere with the order under

challenge.

21. In the light of the conclusions arrived at supra, the Criminal Petition is

dismissed. As a sequel, all pending applications shall stand closed.