Prayer
The petitioner herein facing trial for the alleged demand of Rs.1,000/- and receipt of same on 26.07.2013 as illegal gratification, when the defacto complainant sought financial assistance under the scheme of Farmer Protection for his son’s marriage.
Trial court dismissed section 311 cr.p.c application as dilatory tactic
2.The prosecution, on completion of investigation, has filed a final report and examination of witnesses was commenced on 11.04.2017. The prosecution has closed their side of examining the witnesses. After completing the examination of Investigating Officer as PW.8, on 04.07.2023, the trial Court has adjourned the matter for questioning under Section 313 of Cr.P.C., regarding incriminating evidence against the accused. Thereafter, the petitioner/accused has filed an application under Section 311 of Cr.P.C, on 01.08.2023. After considering the contention raised by the petitioner and the public prosecutor, the trial Court has dismissed the petition to recall the witnesses PW.1, PW.2, PW.3 , PW.7 and PW.8 on the ground that it is a dilative tactics adopted by the petitioner herein to protract the proceedings. Having cross examined his witnesses in depth, the petition to recall without assigning any reason been filed and recalling the witnesses is not the matter of right, but it must be supported by reasoning that failure of justice will occur if the witness/es not recalled.
Contention by the Petitioner
4.Initially the case was tried before the Chief Judicial Magistrate, Nagapattinam, later transferred to Tiruvarur on bifurcation of district that is the reason why there was delay in examining the witnesses. Though PW.1 was examined as early as on 11.04.2017, the rest of the witnesses were examined only after transfer of the case to Tiruvarur Court. Soon after, on completion of examining the witnesses on the side of the prosecution, application to recall five witnesses filed stating that the accused has to establish through these witnesses that he was discharging his official duty involving recovery of money under RR Act and therefore, these witnesses PW.1, PW.2, PW.3, PW.7 and PW.8 are to be recalled and cross examined further in the interest of justice.
Contention by the Respondent
5. The petition to recall five witnesses is bereft of reasoning. More so, in the light of the fact that all these witnesses were cross examinated by the accused in depth at length, there is no indication in the application that further examination of these witnesses will throws light to arrive at just conclusion.
Petitioner relies upon the following judgments
6. The learned counsel appearing for the petitioner relies upon the following judgments:-
(i). Ratanlal -Vs- Prahlad Jat & others reported in 2018 AIAR (Criminal) 62.
(ii). The State Rep. by the Deputy Superintendent of Police -Vs- Tr.N.Seenivasagan reported in 2021 SAR (Cri) 407.
(iii). V.N.Patil -Vs- K.Niranjan Kumar & others reported in 2021 SAR (Cri) 396.
7. On perusing the facts of the case in three judgments, this Court finds that, in Ratanlal -Vs- Prahlad Jat & others reported in 2018 AIAR (Criminal) 62, as a case where the Hon’ble Supreme Court declined to entertain the petition filed by PW.4 and PW.5 to recall them and deposed contrarily to their earlier testimony. In this judgment, the Hon’ble Supreme Court has observed that after supporting the case of the prosecution, eight months later the witnesses themselves have come forward to file a petition under Section 311 of Cr.P.C., stating that they were forced by the prosecution to depose in their favour.
8. The trial Court has observed that, after passage of 8 months the witnesses on their own will and volition filed application for their re-examination on the ground that the statements made by them earlier were under pressure. They have not assigned any reason for the delay in making application. From this, it is obvious that they have been ran over. In the State Rep. by the Deputy Superintendent of Police -Vs- Tr.N.Seenivasagan the Hon’ble Supreme Court had an occasion to consider the scope and ambit of Section 311 of Cr.P.C., and has observed that the application to recall P.W.1 and P.W.11 to mark the proceedings relating to grant of sanction, which was not placed by the prosecution ought to be allowed to satisfy the Court for just decision of the case.
10. The third case cited, V.N.Patil -Vs- K.Niranjan Kumar & others reported in 2021 SAR (Cri) 396. In this case, there was two postmortem report and the second postmortem report was not produced by the prosecution. Having come to know about the second postmortem report, the accused wanted to recall the witness under Section 311 Cr.P.C., and elucidated the information regarding the second postmortem. Considering the fact of the case, the Hon’ble Supreme Court has held that the background of the case in hand, warrants recall of witness. The earlier judgment of the Court relied to Section 311 Cr.P.C., is rightly discussed in V.N.Patil -Vs- K.Niranjan Kumar & others reported in 2021 SAR (Cri) 396, the Hon’ble Supreme Court has distinguished when this provision can be exercised and when it should be declined.
Though the witnesses were already cross-examined at length no whisper about for what purpose they have to be recalled to examine further
11. In the case in hand, the deposition copy of the witnesses PW.1, PW.2, PW.3, PW.7 and PW.8 is enclosed. This Court finds these witnesses been cross examined at length. PW.1 is the Sanctioning Authority, PW.2 is the defacto complainant, PW.3 is the shadow witness, who accompanied with the defacto complainant during the trap. PW.7 is the Inspector of Police, who registered a complaint. PW.8 is the Investigating Officer, who has investigated the case and filed final report. All these witnesses been cross examined at length and in the application to recall these witnesses, there is no whisper about for what purpose they have to be recalled and examine further.
Petitioner refuse to disclose his line of cross-examination
12. The learned counsel appearing for the petitioner submitted that the accused cannot disclose his line of cross examination except stating that to disprove the receipt of the illegal gratification, this witnesses are to be recalled for further examination.
Though accused has right keep his defence closed till cross-examination but accused cannot reserved questions for later point of time by recalling the witness
13. This Court is unable to countenance his submission, no doubt the accused has right of silence and keep his defence closed to his chest till the cross-examination of witnesses, but once the witness mounted in the witness box and left in the hands of defence counsel for cross examination, it is right and duty of the accused to put the questions which he feels relevant and necessary. He cannot reserve few questions for later point of time and file a petition under Section 311 Cr.P.C., without assigning any reason, which is the required ingredient under Section 311 of Cr.P.C.
Scope of section 311 of Crpc:-
14. The Hon’ble Supreme Court had dealt at length the scope of Section 311 of Cr.P.C., in V.N.Patel -vs- K.Niranjan Kumar and others cited supra and for completion and to buttress the decision of the Court, the same is extracted below:-
“14. Section 311:- Power to summon material witness, or examine person present.—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.”
15. The object underlying Section 311 CrPC 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 significant expression that occurs is “at any stage of any inquiry or trial or other proceeding under this Code”. It is, however, to be borne in mind that the discretionary power conferred under Section 311 CrPC has to be exercised judiciously, as it is always said “wider the power, greater is the necessity of caution while exercise of judicious discretion”.
16. Though Section 311 confers vast discretion upon the court and is expressed in the widest possible terms, the discretionary power under the said section can be invoked only for the ends of justice. Discretionary power should be exercised consistently with the provisions of the Code and the principles of criminal law. The discretionary power conferred under Section 311 has to be exercised judicially for reasons stated by the court and not arbitrarily or capriciously.
17. The first part of this section which is permissive gives purely discretionary authority to the criminal court and enables it at any stage of inquiry, trial or other proceedings under the Code to act in one of the three ways, namely, (i) to summon any person as a witness; or (ii) to examine any person in attendance, though not summoned as a witness; or (iii) to recall and re-examine any person already examined. The second part, which is mandatory, imposes an obligation on the court (i) to summon and examine, or (ii) to recall and re-examine any such person if his evidence appears to be essential to the just decision of the case. It is well settled that the power conferred under Section 311 should be invoked by the court only to meet the ends of justice. The power is to be exercised only for strong and valid reasons and it should be exercised with great caution and circumspection. The court has vide power under this section to even recall witnesses for re-examination or further examination, necessary in the interest of justice, but the same has to be exercised after taking into consideration the facts and circumstances of each case. The power under this provision shall not be exercised if the court is of the view that the application has been filed as an abuse of the process of law.”
18. The aim of every court is to discover the truth. Section 311 CrPC is one of many such provisions which strengthen the arms of a court in its effort to unearth the truth by procedure sanctioned by law. At the same time, the discretionary power vested under Section 311 CrPC has to be exercised judiciously for strong and valid reasons and with caution and circumspection to meet the ends of justice.”
Since the accused has not placed particular reason in his petition for recall after exhausting his right of cross-examination the same is considered bereft of necessary details
15. Thus, it is undoubtedly clear that, the petitioner, who had already exercised and exhausted his right of cross-examining the witnesses, if unable to place before the Court that for a particular reason, truth could not be unearthed and same has to be done for further examination of witnesses, the discretionary power under Section 311 Cr.P.C., cannot be exercised un judiciously. If the application to recall witnesses is bereft of necessary details, such applications ought to be dismissed.
16. In the case in hand, reason to recall not made out, hence this Court finds no error in the order of the trial Court dismissing the petition to recall.
Party
G.Ramakrishnan .. Petitioner Vs. State By The Inspector Of Police, Vigilance And Anti Corruption Wing, Nagapattinam. [Crime No.5 Of 2013] ..Respondent , Dated On 14th September ,2023 – Crl.O.P.No.21163 Of 2023 Coram:- The Honourable Dr. Justice G. Jayachandran
Author’s Note
I agree with His Lordship’s view on the accused’s role in explaining the defence.
When would a defence counsel take defence?
Besides, till the time of section 313 Cr.P.C (by filing written statement), it is to be noted that the accused did not construct any defence but just exposing the court that the prosecution witnesses are not reliable to convict the accused by putting contradictions and confrontations. The defence is attempting to prove that the prosecution witness may be a vicious liar. Naval Kishore Singh vs. State of Bihar reported in 2004 (7) SCC 502 in which the Hon’ble Apex Court has held as follows and clears the proposition of entering defence:
“The trial judge should have kept in mind the importance of giving an opportunity to the accused to explain the adverse circumstances in the evidence and the Section 313 examination shall not be carried out as an empty formality. It is only after the entire evidence is unfurled the accused would be in a position to articulate his defence and to give explanation to the circumstances appearing in evidence against him”.
[also see: Reena Hazarika vs. State of Assam – Crl. Apl No: 1330 of 2018 – 31.10.2018 – 2018(13) SCR 1108 and Maheshwar Tigga vs. The State of Jharkhand – Criminal Appeal No. 635 of 2020 (Arising out of SLP (Crl.) No. 393 of 2020) – Decided On: 28.09.2020 [para. 9]
Whether Cross-examination is defence?
Speaking of cross-examination, the Apex Court has held in its unequivocal terms that it is the jurisprudence of law that cross-examination is an acid-test of the truthfulness of the statement made by a witness on oath in examination-in-chief, the objects of which are:
1. To destroy or weaken the evidentiary value of the witness of his adversary;
2. To elicit facts in favour of the cross-examining lawyer’s client from the mouth of the witness of the adversary party;
3. To show that the witness is unworthy of belief by impeaching the credit of the said witness; and the questions to be addressed in the course of cross-examination are to test his veracity; to discover who he is and what is his position in life; and to shake his credit by injuring his character.
Jayendra Vishnu Thakur vs. State of Maharashtra & Another – 2009(3) MLJ (Crl) 1024(SC)=2009(7) SCC 104
It is apposite to note that the Hon’ble Supreme Court while issuing guidelines did not say that taking defence is the part of cross-examination.