Madras High Court
The Assistant Director vs Shri.B.Subramanyam on 8 August, 2024
Author: S.M.Subramaniam
Bench: S.M.Subramaniam, V.Sivagnanam
2024:MHC:3216
CRL.O.P.No.14848 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 08.08.2024
CORAM
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
AND
THE HONOURABLE MR.JUSTICE V.SIVAGNANAM
CRL.O.P.No.14848 of 2024
and
CRL.M.P.No.9094 of 2024
The Assistant Director,
Director of Enforcement,
Ministry of Finance, Department of Revenue,
5th and 6th Floor, BSNL Administrative Building,
No.2, Kush Kumar Road, Nungambakkam,
Chennai – 600 034. ... Petitioner
Vs.
1.Shri.B.Subramanyam
2.Shri.K.Gnanasekaran ... Respondents
Prayer: Criminal Original Petition is filed under Section 482 of Criminal
Procedure Code, pleased to set aside the order dated 06.03.2024 in
Crl.M.P.No.3647 of 2024 in C.C.No.15 of 2015 passed by Learned Principal
Sessions Judge, Chennai with respect to recall of P.W5, Mr.Syed Bazlullah
and thereby permit this petitioner to recall Mr.Syed Bazlullah, the then
IO/DSP in CBI, BS and FC who was earlier examined as P.W5 and examine
the same in the interest of justice.
Page 1 of 10
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CRL.O.P.No.14848 of 2024
For Petitioner : Mr.Rajinish Pathiyil
Special Public Prosecutor
[For Enforcement Directorate]
For R1 : No Appearance
For R2 : Mr.S.Raveekumar
For Mr.A.B.Ashok
ORDER
[Order of the Court was made by S.M.SUBRAMANIAM, J.]
The order dated 6th March, 2024 passed in Crl.M.P.No.3647 of 2024 in
C.C.No.15 of 2015 on the file of the Court of Sessions at Chennai is sought
to be assailed in the present criminal original petition.
2. The Assistant Director, Directorate of Enforcement is the petitioner
before this Court. The petitioner filed miscellaneous petition under Section
311 of Criminal Procedure Code to reopen the complainant side evidence and
examine witnesses. The petition was filed mainly on the ground that
inadvertently the First Information Report (F.I.R) was not marked during the
relevant point of time. Subsequently, the Superintendent of Police, who
registered the F.I.R. got promoted to the post of Additional Director General
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of Police (ADGP) and transferred to the State of Karnataka. Now he is
holding the post of ADGP (Law and Order). Thus, he is not in a position to
respond to the summons issued.
3. Under these circumstances, the petitioner / Assistant Director,
Directorate of Enforcement filed a petition under Section 311, enabling
P.W.5 / Investigating Officer of the predicate offence to mark F.I.R. for the
purpose of proceeding with the trial. The Trial Court though not disputed
these basic facts rejected the petition mainly on the ground that the officer
registered the F.I.R. alone should present for marking the F.I.R. More so, on
earlier occasion, nine witnesses were examined and the petitioner has not
initiated steps to bring L.W.7 for marking F.I.R.
4. Mr.S.Raveekumar, learned counsel for the 2nd respondent
strenuously objected by stating that the Officer, who registered the F.I.R. in
predicate offence alone is competent to mark the document before the Trial
Court.
5. In the present case, though opportunities were provided, the
respondent is unable to bring the officer, who registered the offence of
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predicate offence. Therefore, the Trial Court is right in rejecting the
application filed by the petitioner under Section 311 of Criminal Procedure
Code.
6. Further, it is contended that the F.I.R. is not an essential document
and it will not destroy the case of the petitioner and marking F.I.R. after filing
charge sheet may not be required. However, such an argument is
unacceptable under law.
7. In the cases of PMLA, certain hyper-technical ground not causing
prejudice to the interest of an accused person need not be considered.
Constructive interpretation of provisions are imminent in such circumstances
to ensure delivery of justice to the parties.
8. The scope of Section 311 of Criminal Procedure Code is to ensure
that petition for recall and re-examine any person or to re-examine can be
permitted in the interest of justice. In the present case, the F.I.R. has been
registered by L.W.7 for predicate offence. However, the trial has been
undertaken under the provisions of Prevention of Money Laundering Act,
2002 [hereinafter referred as “PMLA”] for the alleged offences under Section
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3 and punishment under Section 4 of PMLA. Therefore, the F.I.R. is to be
construed as a document. Thus, it is not necessary that the officer registered
the F.I.R. for predicate offence must be present for marking the F.I.R. More
so, marking the F.I.R. through P.W.5, Investigating Officer of predicate
offence would not cause any prejudice to the accused for defending his case
in the trial.
9. Adopting a pragmatic approach and considering the scope of
Section 311 of Criminal Procedure Code and considering the likelihood of
causing prejudice to the accused in PMLA case trial, we are inclined to
consider the present criminal original petition.
10. It is relevant to rely on the judgment of the Hon'ble Supreme Court
of India in the case of Rajendra Prasad vs. Narcotic Cell Through its
Officer Incharge, Delhi1, the relevant portion is extracted hereunder:
“7. It is a common experience in criminal
courts that defence counsel would raise objections
whenever courts exercise powers under Section 311
of the Code or under Section 165 of the Evidence
Act, 1872 by saying that the court could not "fill the
lacuna in the prosecution case”. A lacuna in the
1 [(1999) 6 SCC 10]
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prosecution is not to be equated with the fallout of
an oversight committed by a Public Prosecutor
during trial, either in producing relevant materials
or in eliciting relevant answers from witnesses. The
adage “to err is human” is the recognition of the
possibility of making mistakes to which humans are
prone. A corollary of any such laches or mistakes
during the conducting of a case cannot be
understood as a lacuna which a court cannot fill
up.
8. Lacuna In the prosecution must be
understood as the inherent weakness or a latent
wedge in the matrix of the prosecution case. The
advantage of it should normally go to the accused
in the trial of the case, but an oversight in the
management of the prosecution cannot be treated
as irreparable lacuna. No party in a trial can be
foreclosed from correcting errors. 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. After all, function of
the criminal court is administration of Criminal
Justice and not to count errors committed by the
parties or to find out and declare who among the
parties performed better.”
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11. In the case of Hanuman Ram vs. State of Rajasthan and Others2,
the Apex Court held as follows;
“7. 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 for 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 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
2 [MANU/SC/8107/2008]
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conferred is to be exercised judiciously, as the wide
the power the greater is the necessity for
application of judicial mind.
8. As indicated above, the Section is wholly
discretionary. The second part of it imposes upon
the Magistrate an obligation: it is, that the Court
shall summon and examine all persons whose
evidence appears to be essential to the just decision
of the case. It is a cardinal rule in the law of
evidence that the best available evidence should be
brought before the Court. Sections 60, 64 and 91 of
the Indian Evidence Act, 1872 (in short 'Evidence
Act'), are based on this rule. The Court is not
empowered under the provisions of the Code to
compel either the prosecution or the defence to
examine any particular witness or witnesses on
their side. This must be left to the parties. But in
Weighing the evidence, the Court can take note of
the fact that the best available evidence has not
been given, and can draw an adverse inference.
The Court will often have to depend on intercepted
allegations made by the parties, or on inconclusive
inference from facts, elicited in the evidence. In
such cases, the court has to act under the second
part of the section. Sometimes the examination of
witnesses as directed by the court may result in
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what is thought to be "filling of loopholes". That is
purely a subsidiary factor and cannot be taken into
account. Whether the new evidence is essential or
not must of course depend on the facts of each case,
and had to be determined by the presiding judge.”
12. In view of the facts and circumstances, the order impugned dated
06.03.2024 in Crl.M.P.No.3647 of 2024 in C.C.No.15 of 2015 passed by
Learned Principal Sessions Judge, Chennai is set aside and the Criminal
Original Petition stands allowed.
[S.M.S., J.] [V.S.G., J.]
08.08.2024
Jeni
Index : Yes
Speaking order
Neutral Citation : Yes
To
The Learned Principal Sessions Judge, Chennai.
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S.M.SUBRAMANIAM, J.
and
V.SIVAGNANAM, J.
Jeni
08.08.2024
https://www.mhc.tn.gov.in/judis
