Mogili Ajay And Others vs The State Of Andhra Pradesh ...
2022 Latest Caselaw 6626 AP

      IN THE HIGH COURT OF ANDHRA PRADESH ::
                    AMARAVATHI

     HONOURABLE SRI JUSTICE NINALA JAYASURYA

         CRIMINAL PETITION No.4381 of 2022

Mogili Ajay and others                           ....Petitioners

       Versus
The State of Andhra Pradesh represented by
its Public Prosecutor                            ...Respondent

Counsel for the petitioners : Mr. V.Mallik

Counsel for the respondent : The Assistant Public Prosecutor

ORDER:-

The present Criminal Petition is filed seeking to quash

the Order dated 29.04.2022 passed in Criminal Miscellaneous

Petition No.1010 of 2022 in C.C.No.3042 of 2021 on the file

of the Court of Special Judicial Magistrate of First Class

(P&E)-cum-VIII Additional Metropolitan Magistrate & VIII

Additional Junior Civil Judge, Visakhapatnam.

2. The petitioners herein are accused 4 to 6 in the above

referred Calendar Case, which was registered for the offence

under Section 34(a) of A.P.Excise(Amendment) Act, 2020.

They filed the above mentioned Miscellaneous Petition

seeking to recall P.Ws.1 to 4 as the counsel for the

petitioners could not cross examine the said witnesses. The

respondent-State opposed the said petition and by the

impugned Order, the same was dismissed. Hence, the

present quash petition.

3. The learned counsel for the petitioners submits that

the counsel for the petitioners/accused 4 to 6 appearing in

the Trial Court was suffering from ligament injuries and

therefore, he could not attend the Court, as a result of

which, cross examination of P.Ws.1 to 4 could not be

conducted. The learned counsel submits that in fact the

prosecution witnesses were not present on several dates,

though the petitioners' counsel was ready to examine them

and ignoring the said aspect, the learned Magistrate went

wrong in observing that no cross examination was done by

the petitioners. Be that as it may. The learned counsel

would submit that cross examination of the above said

witnesses is very much essential and the learned Trial Court

without appreciating the matter in a proper perspective,

went wrong in dismissing the petition by making certain

observations, contrary to the material on record. He submits

that the petitioners/accused are denied a fair opportunity to

establish their case by cross examining the witnesses and

unless the witnesses are cross examined, the petitioners

would not be in a position to establish their innocence.

4. Relying on the decisions of the Hon'ble Supreme Court

in P.Sanjeeva Rao v. State of Andhra Pradesh 1, State

represented by the Deputy Superintendent of Police

v. Tr. N.Seenivasagan2 and a decision of a learned Single

Judge of this Court in Criminal Petition No.6091 of 2020

dated 30.12.2020, the learned counsel submits that the

order under challenge is liable to be set aside.

5. The learned Assistant Public Prosecutor appearing for

the respondent-State, on the other hand, submits that the

Order passed by the learned Trial Court contains cogent

reasons, in accordance with Law and the same warrants no

interference by this Court. He accordingly prays to dismiss

the Criminal Petition.

6. This Court has considered the submissions made by

the learned counsel for both sides and perused the material

on record.

1 (2012) 7 SCC 56 2 2021 SCC OnLine SC 212

7. In P.Sanjeeva Rao's case referred to supra, the

Hon'ble Supreme Court was dealing with an appeal against

the order of High Court in a Criminal Revision Petition,

confirming the order passed by the Trial Judge. In the said

case, applications were filed under Sections 242 and 311

Cr.P.C., to recall prosecution witnesses for cross

examination. The prosecution opposed the said applications,

inter alia, contending that recall of P.Ws.1 and 2 for cross

examination more than 3 ½ years, after they had been

examined in relation to an incident that had taken place

seven years back was bound to cause prejudice to the

prosecution. The petitions were dismissed. While setting the

said order as confirmed by the High Court aside, the Hon'ble

Supreme Court at para No.12, referred to the observations

made in Hanuman Ram v. The State of Rajasthan &

Others, (2008) 15 SCC 652, the relevant portion of which,

may be extracted for ready reference:

"12..........

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, enquires 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 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."

8. In Tr.N.Seenivasagan's case referred to supra, the

Hon'ble Supreme Court was dealing with a matter wherein

the miscellaneous petition filed by the prosecution under

Section 311 of Cr.P.C., for recalling some witnesses

dismissed by the Trial Court was confirmed by the High

Court. The Hon'ble Supreme Court at para No.15, inter alia,

held as follows:

"15. The scope and object of the provision is to enable the court to determine the truth and to render a just decision after discovering all relevant facts and obtaining proper proof of such facts, to arrive at a just decision of the case. Power must be exercised judiciously and not capriciously or arbitrarily, as any improper or capricious exercise of such power may lead to undesirable results. An application under Section 311 Cr.P.C., must not be allowed only to fill up a lacuna in the case of the prosecution, or of the defence, or to the disadvantage of the accused, or to cause serious prejudice to the defence of the accused, or to give an unfair advantage to the opposite party..........."

9. Thus, it is clear from the expression of the Hon'ble

Supreme Court that while dealing with an application under

Section 311 Cr.P.C., the Court is required to exercise its

discretion judiciously and not capriciously or arbitrarily and

the said power must be invoked to meet the ends of justice.

10. As seen from the various docket proceedings, it would

appear that though the petitioners were present on several

occasions, the prosecution witnesses were not present to

enable their cross examination. In such circumstances, the

learned Trial Court is not justified in finding fault with the

petitioners, more particularly, when their counsel could not

attend the Court due to the reasons explained in the

petition. The Order of the learned Magistrate is therefore

liable to be set aside.

11. In Crl.Petition No.6091 of 2020 on which reliance is

placed, a learned Judge of this Court, set aside the order

passed by the Trial Court in rejecting an application filed

under Section 311 Cr.P.C., to recall the witnesses therein. In

the said case, as the Senior Counsel was held up before the

other Court and could not attend for cross examination of

the prosecution witnesses, the evidence was closed.

Seeking to recall the witnesses, a petition was filed and the

same was dismissed. The learned Judge quashed the said

order while holding, inter alia, as follows:

"Cross examination of a witness in a criminal case is an important part of trial and it is only means to elicit truth from the witness to prove the innocence of the accused. If, such right is denied, the petitioners/accused will be put to serious loss and it amounts to denial of fair trial. If, it is purely on

account of negligence of the accused, certainly such denial is justifiable. The witness was absent on several occasions as stated above and on account of absence of the witness P.W.17, cross examination could not be completed. Merely because he is an official witness, the Rules of the Court cannot be relaxed and he is on par with any other witness. Therefore, denial of an opportunity to cross-examine the witness would cause serious prejudice to the rights of the petitioners/accused.

According to Section 311 Cr.P.C., 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 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, here, the Trial Court denied the opportunity to cross-examine the witness and it is against the principles of fair trial, since, fair trial is a

fundamental right guaranteed under Article 21 of the Constitution of India."

12. At this juncture, it may be appropriate to refer to

some of the principles laid down by the Hon'ble Supreme

Court in AG v. Shiv Kumar Yadav and Others3 which are

to be kept in mind for exercising power under Section 311

Cr.P.C., and the relevant to the present context are:

a) The exercise of widest discretionary power Under Section 311 Code of Criminal Procedure should ensure that the judgment should not be rendered on inchoate, inconclusive and speculative presentation of facts, as thereby the ends of justice would be defeated;

b) The wide discretionary power should be exercised judiciously and not arbitrarily;

c) The object of Section 311 of Code of Criminal Procedure simultaneously imposes a duty on the court to determine the truth and to render a just decision.

13. In the light of the above legal position, the learned

Trial Court ought to have allowed the petition to recall the

witnesses to enable the petitioners/accused to adduce

evidence and meet the requirements of a fair trial. As the

3 AIR 2015 SC 3501

petitioners are denied the opportunity of cross examination,

the order of the Trial Court cannot be sustained in the light

of the legal position referred to supra.

14. Accordingly, the impugned Order dated 29.04.2022 in

Criminal Miscellaneous Petition No.1010 of 2022 in

C.C.No.3042 of 2021 on the file of the Court of Special

Judicial First Class Magistrate (P&E)-cum-VIII Additional

Junior Civil Judge, Visakhapatnam, is set aside and the

Criminal Petition is allowed with a direction to the Trial Court

to fix a specific date for appearance of P.Ws.1 to 4 and

afford an opportunity to the petitioners/accused to cross

examine the said witness. The petitioners/A4 to A6 shall

proceed with the cross examination of the said witness on

the date fixed by the learned Trial Court, without seeking

any adjournment.

Miscellaneous Petitions, if any, pending in this Criminal Petition shall stand closed.

                                          __________________
                                          NINALA JAYASURYA, J
Date:    .2022
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      HON'BLE SRI JUSTICE NINALA JAYASURYA




         Criminal Petition No.4381 of 2022
                 Dated        .2022


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