Madras High Court
Ayyanaar vs / on 9 February, 2021
Crl.O.P.(MD)No.1881 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 09.02.2021
CORAM :
THE HONOURABLE Mrs.JUSTICE R.HEMALATHA
Crl.O.P.(MD)No.1881 of 2021
and
Crl.M.P.(MD)No.946 of 2021
Ayyanaar ...Petitioner
/Vs./
The Inspector of Police,
Keela Thooval Police Station,
Ramanathapuram District. ...Respondent
(Crime No.45 of 2011)
Prayer: Criminal Original Petition filed under Section 482 of the Code of
Criminal Procedure, to call for the entire records in connection with the
orders dated 06.10.2020 made in Cr.M.P.No.227 of 2020 in S.C.No.18 of
2013 on the file of the Sub Judge cum Assistant Sessions Court,
Mudukulathur and to set aside the same.
For Petitioner : Mr.M.S.Jeyakarthick
For Respondent : Mr.S.Chandra Sekar
Additional Public Prosecutor
ORDER
The present petition is filed to set aside the order dated 06.10.2020
made in Cr.M.P.No.227 of 2020 in S.C.No.18 of 2013 on the file of the
learned Assistant Sessions Judge, Mudukulathur.
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Crl.O.P.(MD)No.1881 of 2021
2. The petitioner is the first accused in S.C.No.18 of 2013 on the file
of the Additional Sessions Judge, Mudukulathur, for the offences
punishable under Sections 147, 148, 294(b), 323, 324, 307 and 506(ii) of
the Indian Penal Code. During the course of trial, the prosecution examined
10 witnesses on various dates. Subsequently, the petitioner filed a petition
under Section 311 of the Code of Criminal Procedure in Cr.M.P.No.227 of
2020 to recall P.W.1 to P.W.3 and the said petition was dismissed by the
trial Court vide orders dated 06.10.2020. Aggrieved over the same, the
petitioner / accused has filed the present petition.
3. The learned counsel for the petitioner contended that the trial Court
dismissed the petition on the following grounds (i) the accused is trying to
protract the proceedings (ii) the accused did not cross examine the witnesses
when they were examined in chief. According to the learned counsel for the
petitioner, the said order passed by the trial Court cannot be sustained, since
no opportunity was given to the petitioner to cross examine the witnesses.
His further contention is that S.C.No.18 of 2013 was previously filed before
the learned Additional Sessions Judge, Paramakudi and it was transferred to
the learned Additional Sessions Judge, Mudukulathur during the year 2017.
His further contention is that P.W.1 to P.W.3 were examined in chief before
the Additional Sessions Judge, Paramakudi and the counsel, who appeared
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Crl.O.P.(MD)No.1881 of 2021
on behalf of the accused did not cross examine the witnesses on the day
when P.W.1 to P.W.3 were examined in chief.
4. The learned Additional Public Prosecutor contended that the
learned Additional Sessions Judge, Mudukulathur, had passed a well
considered order and that the petitioner / accused did not avail the
opportunity to cross examine P.W.1 to P.W.3, at the time when they were
present before the Court. His further contention is that since Non Bailable
Warrants are pending against Accused No.2, 4 and 6, the Additional
Sessions Judge, Mudukulathur, cannot proceed with the trial of the case in
S.C.No.18 of 2013.
5. In the decision in State (NCT of Delhi) vs. Shiv Kumar Yadav
reported in (2016) 2 SCC 402, the Hon'ble Supreme Court has held thus:
“29.We may now sum up our reasons for disapproving
the view of the High Court in the present case:
(i)The trial court and the High Court held that the
accused had appointed counsel of his choice. He was facing
trial in other cases also. The earlier counsel were given due
opportunity and had duly conducted cross-examination. They
were under no handicap;
(ii)No finding could be recorded that the counsel
appointed by the accused were incompetent particularly at the
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Crl.O.P.(MD)No.1881 of 2021
(iii) Expeditious trial in a heinous offence as is alleged
in the present case is in the interests of justice;
(iv)The trial Court as well as the High Court rejected the
reasons for recall of the witnesses;
(v)The Court has to keep in mind not only the need for
giving fair opportunity to the accused but also the need for
ensuring that the victim of the crime is not unduly harassed;
(vi)Mere fact that the accused was in custody and that
he will suffer by the delay could be no consideration for
allowing recall of witnesses, particularly at the fag end of the
trial;
(vii)Mere change of counsel cannot be ground to
recall the witnesses;
(viii)There is no basis for holding that any prejudice
will be caused to the accused unless the witnesses are
recalled;
(ix)The High Court has not rejected the reasons given
by the trial court nor given any justification for permitting
recall of the witnesses except for making general observations
that recall was necessary for ensuring fair trial. This
observation is contrary to the reasoning of the High Court in
dealing with the grounds for recall I.e., denial of fair
opportunity on account of incompetence of earlier counsel or
on account of expeditious proceedings;
(x)There is neither any patent error in the approach
adopted by the trial court rejecting the prayer for recall nor
any clear injustice if such prayer is not granted.”
6. Further, in Rajaram Prasad Yadav Vs. State of Bihar reported in
(2013) 14 SCC 461, the Hon'ble Supreme Court has culled out certain
principles to be kept in mind, while exercising power under Section 311
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Cr.P.C., which read as follows:-
“(i)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.
(ii) 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.
(iii) 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.
(iv) The exercise of the said power cannot be dubbed
as filling in a lacuna in a prosecution case, unless the facts
and circumstances of the case make it apparent that the
exercise of power by the Court would result in causing
serious prejudice to the accused, resulting in miscarriage of
justice.
(v) The wide discretionary power should be exercised
judiciously and not arbitrarily.
(vi) The Court must satisfy itself that it was in every
respect essential to examine such a witness or to recall him
for further examination in order to arrive at a just decision
of the case.
(vii) The object of Section 311 Cr.P.C. simultaneously
imposes a duty on the Court to determine the truth and to
render a just decision.
(viii) The Court arrives at the conclusion that
additional evidence is necessary, not because it would be
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Crl.O.P.(MD)No.1881 of 2021
there would be a failure of justice without such evidence
being considered.
(ix) Exigency of the situation, fair play and good
sense should be the safe guard, 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.
(x) 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 than
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.
.....
(xi)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 persons
concerned, must be ensured being a constitutional goal, as
well as a human right.”
7. The said decision has also been followed in Haryana Vs. Ram
Mehar and others reported in (2016) 8 Supreme Court Cases 762, where
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Crl.O.P.(MD)No.1881 of 2021
the Hon'ble Supreme Court has held that “concept of fair trial cannot be
limitlessly stretched to permit recall of witnesses endlessly on ground of
magnanimity, etc.”
8. A perusal of the orders passed by the learned learned Assistant
Sessions Judge, Mudukulathur clearly shows that the petition to recall the
witnesses under Section 311 of the Code of Criminal Procedure was filed by
the petitioner / accused on flimsy grounds and that too after the lapse of four
years. The petitioner also did not cross examine the witness when they were
examined in chief. In view of the law laid down by the Hon'ble Supreme
Court, this Court does not find any reason to allow this application.
Moreover the trial Court has passed a well considered order and I do not
find any infirmity in the orders passed by the trial Court and accordingly,
this petition is dismissed. Consequently, the connected Miscellaneous
Petition is closed.
09.02.2021
Index : Yes/No
Internet:Yes/No
sm
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Crl.O.P.(MD)No.1881 of 2021
R. HEMALATHA, J.
sm
To
1.The Sub Judge cum Assistant Sessions Judge,
Mudukulathur.
2.The Inspector of Police,
Keela Thooval Police Station,
Ramanathapuram District.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
Note : In view of the present lock down owing to COVID-19
pandemic, a web copy of the order may be utilized for
official purposes, but, ensuring that the copy of the order
that is presented is the correct copy, shall be the
responsibility of the advocate/litigant concerned.
Crl.O.P.(MD)No.1881 of 2021
09.02.2021
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