State By Inspector Of Police vs A.K.Zutshi
2022 Latest Caselaw 275 Kant

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  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 7TH DAY OF JANUARY, 2022

                          BEFORE

           THE HON'BLE MR. JUSTICE K.NATARAJAN

              CRIMINAL PETITION No.1094/2020

BETWEEN

STATE BY INSPECTOR OF POLICE
CENTRAL BUREAU OF INVESTIGATION
(ANTI-CORRUPTION BRANCH)
NO.36, BELLARY BRANCH,
GANGANAGAR
BENGALURU-560032.                       ... PETITIONER

(BY SRI PRASANNA KUMAR P, ADVOCATE)

AND

A.K.ZUTSHI
S/O SHRI J N ZUTSHI
AGED ABOUT 74 YEARS,
RETIRED DIRECTOR (FINANCE)
M/S HINDUSTAN AERONAUTICS LIMITED
BENGALURU
RESIDING AT NO.C-2,
SAI TEJA SHERWOOD
16TH CROSS, 1ST MAIN,
PAI LAYOUT,
BENGALURU-560016.                          ... RESPONDENT

(BY SRI GANESH KUMAR R, ADVOCATE)

      THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 15.06.2019
PASSED BY THE XXXII ADDITIONAL CITY CIVIL AND SESSIONS
JUDGE AND SPECIAL JUDGE FOR CBI CASES (CCH-34)
BENGALURU IN SPECIAL C.C.NO.74/2006 AND CONSEQUENTLY
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ALLOW THE APPLICATION DATED 19.11.2018 UNDER SECTION
311 OF CODE OF CRIMINAL PROCEEDURE FILED BY THE
PETITIONER (PRODUCED VIDE ANNEXURE-D) TO THE
PETITION.

     THIS CRIMINAL PETITION COMING ON FOR ADMISSION
THROUGH VIDEO CONFERENCING THIS DAY, THE COURT MADE
THE FOLLOWING:

                         ORDER

This petition is filed by petitioner-CBI under Section

482 of Cr.P.C for quashing the impugned order dated

15.06.2019 passed by the XXXII Additional City Civil and

Sessions Judge and Special Judge for Special CBI cases,

Bengaluru in Spl.C.C.No.74/2006 on the application dated

19.11.2018 under Section 311 of Cr.P.C for recalling of

P.W.19 and P.W.49 and to issue summons to C.W.37.

2. Heard Sri Prasanna Kumar P, learned counsel

for the petitioner and Sri. Ganesh Kumar R, learned

counsel for the respondent-accused.

3. The case of the CBI is that they have filed

charge-sheet against the respondent for the offence

punishable under Section 13(2) read with Section 13(1)(e)

of Prevention of Corruption Act, 1988 alleging that he has

acquired the assets or pecuniary resources to the extent of

73% which is disproportionate to his known sources of

income. After framing of charge, the petitioner examined

almost 49 witnesses and completed prosecution evidence.

The statement of accused is said to have been recorded.

Subsequently, the accused was also examined himself as

witness and when the matter was about to post for the

arguments, the prosecutor filed an application for recalling

the witnesses stated above which came to be rejected.

Hence, they are before this Court.

4. Learned counsel for the petitioner has seriously

contended that C.W.37 who is said to be the broker in

Delhi Stock Exchange Association Ltd., who is said to have

issued the Document Nos.D66 to 69 and D.423, where the

wife and daughter of the respondent-accused are said to

have been manipulated the documents. Therefore, it is

necessary for examining C.W.37, but it has stated that

previously, the witness is not traceable, he has left the

employment in the Stock Exchange and subsequently, he

was traced. Therefore, it is necessary material witness to

examine before the trial Court to prove the case of the

prosecution and further contended that once the document

is marked, it has to be again examine the Investigating

Officer and Document Nos.99 and 100 are said to be not

marked through P.W.19. Therefore, it is necessary to mark

the same for just to take the decision of the Court.

Therefore, prayed for allowing the same.

5. Per contra, learned counsel for the respondent

has seriously objected the application by justifying the

order of the trial Court and contended that in spite of

issuing eight notices to C.W.37 eight times, he was not

traceable, therefore, it was stopped. Even a liberty was

granted by the trial Court to the petitioner to file similar

application prior to recording the statement under Section

313 of Cr.P.C which was ended in finality and was not

challenged. Therefore, it cannot be again file a recall

application subsequent to the fag end of the trial. The

documents are already marked, it is nothing but

duplication for marking once again. The complainant is

dragging the proceedings to harass the accused person.

Hence, prayed for dismissing the petition.

6. Having heard the arguments and on perusal of

the records, admittedly, the prosecution have already

completed the evidence, statement was recorded, matter

was also posted for final hearing and about to post for the

judgment, at this stage, the CBI has filed this application

for recalling P.W.19 for the purpose of marking two left out

documents i.e., D.99 and D.100 and C.W.39 who is said to

be the material witness for the process of marking

document No.66 to 69, who is said to be the employee

working at Delhi Stock Exchange, where the wife and

daughter of respondent-accused are said to have produced

some documents which is necessary for prosecution to

prove its case regarding disproportionate of the assets

than the known sources of income. At this stage, it is

necessary to mention the provisions of Section 311 Cr.P.C

which is as under:

"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".

7. On bare reading of the provision, it clearly says

that at any stage of any inquiry, trial or other proceeding,

the Court has power to summon any witness whether

examined or not or recall the witness who is already

examined and also can re-examine any person and the

Court shall summon and examine or recall those

witnesses, if the evidence appears to be essential to the

just decision of the case. Here in this case, C.W.37 is a

material witness where the wife and daughter of the

accused-respondent are said to have some business and

they declared before the Income Tax Authorities and the

document Nos.66 to 69 are also a material documents for

the prosecution and the document Nos.99 and 100 are also

required to be marked and proved by the prosecution at

the instance of P.W.19. If these two witnesses are

examined, definitely P.W.49 who is the Investigating

Officer also required to be further examined by the

prosecution. If these two witnesses are not examined,

definitely it will prejudice the case of the prosecution.

8. It is also pertinent to note that even in the

appellate stage, any party can file application for leading

additional evidence under Section 391 of Cr.P.C. Such

being the case, if Interlocutory application is not allowed

then that will be prejudice caused to the prosecution case.

Though there is some delay in summoning the witnesses

and eight times notice have been issued, that itself is not a

ground for rejecting the prayer of the prosecution and it is

just and proper decision of the case that it is necessary to

allow the prosecution to lead the evidence of C.W.37 and

recall P.W.19 and P.W.49. Accordingly, I pass the following

ORDER

Criminal petition is allowed. The impugned order of

rejection of the application under Section 311 of Cr.P.C

dated 15.06.2019 passed by the XXXII Additional City Civil

and Sessions Judge and Special Judge for Special CBI

cases, Bengaluru in Special C.C.No.74/2006 is hereby set

aside.

The application is allowed. The CBI is permitted to

further examine P.W.19 and P.W.49 by recalling and the

trial Court is permitted to summon C.W.37 and the

prosecution shall ensure the presence of C.W.37 without

causing any delay.

The accused has liberty to cross examine those

witnesses.

Sd/-

JUDGE

GBB