In Re: S. Arumugham

Ratnavel Pandian, J.—The Petitioner is accused 3 in Sessions Case No. 21 of 1973 on the file of the First Additional Sessions Judge, City Civil Court, Madras, and he has preferred this revision petition against the order of the learned Judge dt. 5th July 1975 in Crl. M.P. 495 of 1975 and Crl. M.P. 528 of 1975 allowing both the petitions and directing a document to be sent to the hand-writing expert for examining it and giving his opinion and directing recall of (sic) a witness for the purpose of proving a document sought to be marked by the prosecution. The above two petitions Nos. 495 and 528 of 1975 were filed before the trial Court by the prosecution, of which one is to send the document Ex. P-98 and the document filed along with the petition said to have been written by accused 3 to his wife, to the handwriting export, for his examination and opinion, and the other to recall P.W. 16 for the purpose of marking the documents filed in Court and proving the same. Further, it is alleged in those petitions that those documents were written by the third accused and that due to oversight, steps could not be taken earlier for sending the documents to the hand-writing export for his examination and opinion and the marking of these documents is important to corroborate the evidence of P.W. 16 and to the complicity of accused 3 in the conspiracy. Accused 3 by filing a counter, stoutly resisted the petitions. According to, him, there was no mahazar for the seizure of the document and there was no mention of those documents in the committal Court or in the Sessions trial when they are originally tried and the said documents have been produced four years after the alleged seizure. Further, it was contended that as the trial has come to a close, this attempt at filling up the gaps in the prosecution at this stage would only cause prejudice to the accused. Considering the arguments of both parties, the trial Court passed the abovesaid order.

Mr. Rangavajjula, appearing for the Petitioners, would vehemently urge that if the prosecution is allowed to put in incriminating documents stage by stage against the accused, it would tantamount to allowing the prosecution to fill up the gap and to let in rebuttable evidence at each and every stage as the proceedings go on. According to him, this kind of attitude on the part of the trial Court will cause much prejudice to the accused and hamper the defence. In support of this contention, he would bring to my notice the judgment rendered by me in T. Bhashyam v. State (1975) T.L.NJ. 60: 1975 L.W. (Cri) 53 wherein it had been observed that every prosecutor, or in the case of a private complaint the complainant, is expected to go through all the documents which are in his possession pertaining to the issue and to be more vigilant during the time of the trial of the case and that the Court, in exercising the powers given u/s 540 of the old Criminal Procedure Code, and summoning any person to be re-examined should pass the order on principles of equity and justice. In other words, the limits of the Court''s jurisdiction must obviously be dictated by the exigency of the situation and fair-play and good sense, and this power must be exercised only in suitable cases in the interests of Justice.

It is the admitted case that this Petitioner (accused-3) was arrested on 18th July, 1971 along with others and was committed to take his trial before the Court of Sessions on 29th May, 1973. The sessions trial started on 4th September, 1973 but, on account of the change in the Presiding Officer, there was de novo trial which started on 11th February, 1974. So far, 73 prosecution witnesses have been examined. Only after the examination of all these witnesses, the prosecution has come forward with these petitions to put in a fresh document. The learned Public Prosecutor would contend that during the course of the investigation, the Investigating Officer seized a letter alleged to have been written by the Petitioner to his wife and the marking of the said letter and the other documents is necessary in the interests of justice. However, he would admit that there was no mahazar for the alleged seizure of this letter and the investigation was not directed on this aspect, and the statement recorded from P.W. 16 during the investigation also does not show that he was shown this letter, which the prosecution now wants to file through these witnesses. Further, it is admitted that P.W. 16. who was examined twice in Court, was not shown this document, nor was it sought to be filed through him when he was examined. It is true that the prosecution has not bestowed any attention either on this letter or any other document which now the prosecution wants to mark by re-calling P.W. 16. Nonetheless, they would contend that the marking of the document is so vital and necessary to complete their case. At this stage, the prosecution would rest content stating that it would be better if P.W. 16 is recalled and the documents mentioned in those pleadings are marked through him. It is seen from Part I of the case Diary that a letter has been seized during the investigation. Of course, the prosecution is justified in saying that they cannot examine the wife of the Petitioner as they rightly apprehend that she may not support the prosecution case. As the case is long pending, well over a year, both the Public Prosecutor and Mr. Rangavajjula, learned Counsel for the Petitioner, would now agree that P.W. 16, instead of being recalled and examined on the side of the prosecution, may be summoned and reexamined by the Court itself for marking the documents sought by the prosecution in those petitions. As I am satisfied, on seeing the order of the learned Judge, that the Judge himself has felt it just and necessary that the witness should be recalled and examined with reference to the documents, I direct the trial Judge to recall the witness and examine him with reference to the documents, giving equal opportunity to both sides to cross-examine him.

With the above directions, the petition is allowed.