Kerala High Court
Shyju vs State Of Kerala on 3 April, 2024
Author: Bechu Kurian Thomas
Bench: Bechu Kurian Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
WEDNESDAY, THE 3RD DAY OF APRIL 2024 / 14TH CHAITHRA, 1946
CRL.MC NO. 874 OF 2023
CRIME NO.802/2013 OF POTHANIKADU POLICE STATION, ERNAKULAM
AGAINST SC NO.782 OF 2017 OF ADDITIONAL SESSIONS COURT,
MUVATTUPUZHA
PETITIONER/ACCUSED NO.1:
SHYJU
AGED 44 YEARS, S/O.KUNJUMON
MUNDANKOTTIL HOUSE,
PALLARIMANGALAM KARA, POTHANIKAD VILLAGE,
ERNAKULAM, PIN - 686671
BY ADVS.
SRI.V.JOHN SEBASTIAN RALPH
SRI.VISHNU CHANDRAN
SRI.RALPH RETI JOHN
SRI.APPU BABU
SMT.SHIFNA MUHAMMED SHUKKUR
SRI.GIRIDHAR KRISHNA KUMAR
SMT.VISHNUMAYA M.B.
SMT.GEETHU T.A.
SMT.APOORVA RAMKUMAR
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
COCHIN PIN - 682031
SRI. T.R.RENJITH, PUBLIC PROSECUTOR
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
21.03.2024, THE COURT ON 03.04.2024 PASSED THE FOLLOWING:
Crl.M.C. No.874/23 -:2:-
"C.R."
BECHU KURIAN THOMAS, J.
--------------------------------
Crl.M.C. No.874 of 2023
---------------------------------
Dated this the 3rd day of April, 2024
ORDER
Can a document that was not procured during investigation and
produced along with the final report, be introduced, after the
evidence is over by recourse to section 311 of the Code of Criminal
Procedure 1973?
2. Petitioner is facing an indictment for the offences under
Sections 308, 326A and 120B read with Section 34 of the Indian
Penal Code, 1860. He is alleged to have attacked the victim with
acid. The victim who suffered the attack became blind. After the
evidence in the case was completed and when the case was posted
for hearing, a petition was filed by the Public Prosecutor seeking to
re-open the evidence to produce a disability certificate and to
examine the doctor who issued the certificate stating that the victim
has become 100% blind. By the impugned order dated 23.01.2023,
the Additional Sessions Judge, Muvattupuzha allowed the said
application.
3. I have heard Sri. John Sebastian Ralph, the learned counsel
for the petitioner as well as Sri.T.R Renjith, the learned Public
Prosecutor.
4. The learned counsel for the petitioner contended that the
production of evidence that came into existence after filing the final
report is not permissible. The document that is sought to be
produced is dated two years after the final report was filed, and such
a document cannot be produced, that too, at the fag end of a trial. It
was further contended that in a criminal trial, the prosecution ought to
produce all the documents which they rely upon under section 173
Cr.P.C and copies of those documents are required to be supplied
under section 207 Cr.P.C and further that under section 220 Cr.P.C,
he must open his case by describing the charge and the evidence
that the prosecution proposes to prove. According to the learned
counsel, even the defence strategy is based upon the materials
produced by the prosecution, and his right to fair trial will be
prejudiced if such documents are permitted to be produced after
evidence is completed.
5. Sri. T.R Renjith, the learned Public Prosecutor, on the other
hand, contended that the court's power to permit any evidence to
come on record is determined by its essentiality, and therefore, the
court's power to permit such recall of witnesses or reopening of
evidence cannot be restricted.
6. I have considered the rival contentions.
7. Chapter XVIII of Cr.P.C deals with trial before a court of
sessions. Section 226 Cr.P.C states that the Prosecutor shall open
the case by describing the charge brought against the accused and
must also state by what evidence he proposes to prove the guilt of
the accused. If the accused refuses to plead guilty, the court may, on
the application of the prosecution, issue a process for compelling the
attendance of any witness or the production of any document or
other thing as per section 230 Cr.P.C. Under section 231 Cr.P.C, on
the date fixed, the Judge shall proceed to take all such evidence as
may be produced in support of the prosecution. The provisions of
sections 230 and 231 Cr.P.C referred to above, do not indicate that
the issue of process for compelling the production of any document
or other thing is confined to any document produced along with the
final report. Similarly, the evidence to be adduced on behalf of the
prosecution need not necessarily be confined to those produced
along with the final report.
8. The terminology used in sections 230 and 231 of Cr.P.C
indicates that the prosecution is entitled to produce any document
supporting the prosecution evidence. Though generally the
documents and evidence are those that are collected during
investigation, the prosecution cannot be tied down to only those
documents produced along with the final report. If an important
document or a witness has been omitted or was not produced, for
whatever reason it may be, the prosecution cannot be denied an
opportunity to bring it on record as a piece of evidence in the trial.
9. In the decision in Central Bureau of Investigation v. R.S.
Pai and Another, [(2002) 5 SCC 82], the Supreme Court had
observed that, normally, the Investigating Officer is required to
produce all the relevant documents at the time of submitting the
charge sheet. The Court also held that, however, there is no specific
prohibition that documents cannot be produced subsequently and
that, if some mistake is committed in not producing the relevant
documents at the time of submitting the charge sheet, it is always
open to the Investigating Officer to produce it with the permission of
the court. It was also observed that if further investigation is not
precluded under section 173 Cr.P.C, there is no question of not
permitting production of additional documents which were gathered
prior to or subsequent to the investigation.
10. Similarly, in the decision in Rajendra Prasad v. Narcotic
Cell [(1999) 6 SCC 110], while dealing with the question on what is
the lacuna in a prosecution case, the Supreme Court observed 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 since the
function of a criminal court is administration of criminal justice and
not to find errors found by the parties or to find out and declare who
among the parties performed better. Yet again, in P. Chhaganlal
Daga v. M. Sanjay Shaw [(2003) 11 SCC 486], the Supreme Court
held that even after the arguments were heard and the case was
posted for judgment, the complainant can move the trial court for the
reception of additional material in exercise of the powers under
section 311 Cr.P.C. The power under section 311 Cr.P.C is of the
widest range as held by the Supreme Court in Mohanlal Shamji
Soni v. Union of India and Another [(1991) Supp. 1 SCC 271.
11. With the above principles in mind, when the circumstances
arising in the instant case are considered, it is evident that the
prosecution alleges that due to the act of the accused, the victim
became blind, and the accused is being prosecuted for the offence
under Section 326A of IPC. The certificate of the Medical Board
indicating 100% blindness of the victim was obtained only in 2016
and this document was not known to the Investigating Officer or to
the Public Prosecutor. It was only after the trial was completed that
the victim handed over such a document to the Public Prosecutor.
The nature of the crime alleged, and the nature of the certificate
sought to be produced by the prosecution indicate that the same is
essential for a just decision in the case. In this context, it is
necessary to refer to a recent judgment in V.N.Patil v. K.Niranjan
Kumar and Others [(2021) 3 SCC 661 wherein the Supreme Court
had observed that the Trial Court can exercise suo motu powers in
summoning witnesses whose statements ought to be recorded to
subserve the cause of justice with the object of getting evidence in
aid of a just decision and to uphold the truth.
12. The scope and purport of section 311 of Cr.P.C are quite
often misunderstood. It is a provision enacted for the purpose of
aiding the ultimate object of a criminal trial, that is, to render justice to
the parties. There is no embargo or restriction in summoning any
person as a witness, even those witnesses whose statements have
not been recorded earlier, or to accept any material. The only
restriction is that the material or the evidence sought to be adduced
must be essential for a just decision in the case. The contention that
the document was not seized earlier or that it was not part of the final
report, is not a relevant consideration in a proceeding of this nature.
13. Since the learned Session Judge has found that the
evidence sought to be introduced in the form of a document and to
examine the doctor who issued the certificate is essential for a just
decision of the case, I find no perversity in the impugned order.
Accordingly, this Criminal Miscellaneous Case is dismissed.
Sd/-
BECHU KURIAN THOMAS
JUDGE
vps
APPENDIX
PETITIONER ANNEXURES
Annexure 1 CERTIFIED COPY OF THE ORDER DATED
23.01.2023 IN CRL M. P. 20/2023 IN SC
782/2017 ON THE FILES OF ADDITIONAL
SESSIONS COURT, MUVATTUPUZHA
