Kantipudi Jayaseela vs State and others

The petitioner is CW1. She filed the petition u/s 319(1)(4)(a) Cr.PC praying to issue proceedings to commence trial afresh on the ground that the 6th respondent was impleaded as 5th accused. The petitioner is the wife of Sudhakar. On report given by PW15, the case was registered u/s 302 read with Section 34 IPC in Cr.No.154 of 1990 against A1 to A4. The Ill-Metropolitan Sessions Judge, Vijayawada tried the offence punishable u/s 302 read with Section 34 IPC. The trial commenced on 24-2-1992 and 11 prosecution witnesses were examined by 28-2-1992, On 28-2-1992 the petitioner filed a petition u/s 311 Cr.PC to examine LWs.6 and 7, who are no other than the petitioner and her mother-in-law as Court witnesses. They were also examined as CWs.1 and 2. Subsequently, PWs.12 to 19 were examined. The prosecution evidence was closed on 20-11-1992. Section 313 Cr.PC examination was also over. The case was posted for arguments on 7-1-1993.

At this juncture, CW1 (petitioner) filed a petition u/s 319 Cr.PC to add PW6 as one of the accused. She also filed an application u/s 311 Cr.PC to examine (1) Bandari @ Badumuri Ramu, (2) Undeti Nageshwara Rao, (3) Kareemullah and (4) Nakka Nageshwara Rao as prosecution witnesses. Both the petitions were allowed by a common order dated 21-3-1994. Two revisions were filed before tin''s Court by G. Venkateshwara Raju @ Peda Babu (PW6) and the same were dismissed. Thereafter PW6 was impleaded as A5. At this juncture, the Counsel appearing for A5 filed a memo dated 6-10-1997 stating that A5 desires to cross-examine PWs.12, 15, 17, 19 and CWs.l and 2. The proceedings were issued. At that stage, CW1 filed the petition u/s 319(1)(4)(a) of Cr.PC.

It is submitted that by virtue of Section 319 Cr.PC the proceedings in respect of A5 shall be commenced afresh and the witnesses are to be re-heard. This petition was contested. The learned Counsel for the accused submitted that the petitioner cannot compel the Court to conduct re-trial under the guise of Section 319(4)(a) Cr.PC. It is always the privilege of the prosecutor to examine such of the witnesses required to prove the case of the prosecution. It is the case of the prosecution that the evidence of some of the witnesses is not helpful to anybody. Therefore, the prosecution cannot be compelled to examine all the witnesses de novo.

After hearing both sides, the learned Sessions Judge held that it is not necessary to examine all the witnesses and that he preferred to examine only PWs.12, 15, 17, 19 and CWs.1 and 2, as prayed for by newly added accused i.e., A5. This order is impugned in the revision.

The learned Counsel for the petitioner submitted that the order ex facie is erroneous. It goes against the spirit and intendment of the Legislature in enacting the enabling provision of Section 319(4)(b) Cr.PC which is in the following terms:

"(4) Where the Court proceeds against any person under sub-section (1), then-

(a) the proceedings in respect of such person shall be commenced afresh, and the witnesses re-heard;

(b) subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced."

The learned Counsel submitted that the plain meaning of the above provision clearly indicates that the trial should be commenced de novo irrespective of the fact whether the witnesses said anything against the newly added accused. The accused cannot avail any choice in this matter. Denial of such opportunity would cause serious miscarriage of justice. In support of his contention, he relied upon the judgment of the Full Bench of Kerala High Court reported in Food Inspector, Palghat Municipality v. M/s. Seetharam Rice and Oil Mills, Pareli 1975 Crl.LJ 479. This case arose under the Prevention of Food Adulteration Act, 1954. The scope of Section 20-A of the Act was under consideration. The said provision is similar to the provision u/s 319 Cr.PC. Originally, Al was tried for the offence under the Act. Subsequently, it is pleaded that the Toordhal was purchased from M/s. United Traders under a written warranty. The Food Inspector filed a petition u/s 20-A of the Act to implead M/s. United Traders and others, as the accused. They were added. Prior to the impleadment of A3 and others, PWs.l and 2 were already examined. After impleadment, they were recalled and examined. Afterwards, PW3 was examined as an additional witness for prosecution. PWs.l to 3 were cross-examined by newly added accused; but no opportunity was given to Al, who is original accused, to cross-examine these witnesses. He was also not given an opportunity to let-in evidence on his side. There was incriminating material in the evidence of PWs.l to 3 against Al. In those circumstances, the Full Bench held "the statutory right of cross-examination granted to an accused is a very valuable one, as however slender the material for cross-examination may be, the effect of it cannot be gauged. In these circumstances, the conviction of the accused cannot be sustained."

This judgment does not apply squarely to the facts of the case on hand. In the case on hand, the newly added accused (A5) had filed an application to examine PWs.12, 15, 17, 19 and CWs.l and 2 only. CW1 who filed the present application had an opportunity to cross-examine the witnesses. Some of the witnesses turned hostile. Their evidence is not useful to either side. In those circumstances, it is highly mechanical and futile to examine all the witnesses, who did not speak anything against newly added accused. In the above cited case, there was incriminating material against Al in the evidence of PWs.l and 2. In those circumstances, proceedings were held to be bad. Further, in the case on hand, if at all anybody is aggrieved for not examining all the witnesses, it is A5 only. A5 himself has chosen some of the prosecution witnesses for the purpose of cross-examination. In such a case, it is not known how CW1 is aggrieved. In my considered opinion, CW1 cannot maintain this application. In Section 319(4)(a) Cr.PC the phrase "in respect of such person" is very important. There was no difficulty for the Legislature to indicate that the proceedings should be commenced ''de novo''. Those words are not used. Therefore, the purpose is quite clear. Re-examination and re-hearing shall be in respect of ''such person'' only. As stated earlier, if any petition can be filed it is only ''such person''; not every person, party to the proceedings. The intendment is to give fair opportunity to the newly added accused (such person).

It is true that the sub-section (4) of Section 319 Cr.PC in letter may sound like contemplating ''de novo'' trial. But this cannot be mechanically followed. The Court has to see whether there is any incriminating material against the newly added accused in the evidence of any one of the prosecution witnesses examined earlier. If any such material is there, certainly an opportunity should be given to the newly added accused to cross-examine that witness. I do not agree with the submission that eventhough there is no incriminating material, witnesses should be examined de novo in respect of all the accused. According to me, that is not the purport of sub-section (4) of Section 319 Cr.PC.

Reliance was also placed on the judgment of Allahabad High Court reported in Ram Niwas v. State of Uttar Pradesh 1988 (3) Crimes 749. In this case, two prosecution witnesses were examined in chief before impleadment of the fresh accused. The cross-examination had been deferred. The question was whether the statements of these witnesses can be treated as evidence for the purpose of Section 319(1) Cr.PC. The learned Judge held in affirmity. Therefore, held that opportunity should be given to the accused to cross-examine. This case is not relevant to the point involved in the case on hand.

The learned Counsel further relied upon the judgment of the Supreme Court reported in Joginder Singh and Another Vs. State of Punjab and Another, . In this judgment, the Court was mainly concerned with the question whether committal proceedings are necessary in respect of newly added accused by virtue of Section 319(1) Cr.PC. The opinion of the Supreme Court was negative. The point involved in the case on hand is not directly under the consideration of the Supreme Court. Therefore, this judgment does not advance the case of the petitioner.

I have already held that it is not necessary to examine all the witnesses mechanically after impleadment of newly added accused. The object ofthe section is to give opportunity to the newly added accused to meet the incriminating material against him. It is futile to order re-examination of the witness who did not say anything against the newly added accused. It is true that the right of cross-examination is a valuable right, however slender it may be as was held in the above case. Still, such an opportunity cannot be mechanical.

All these aspects are elaborately considered by the lower Court. The interpretation given by the lower Court in respect of Section 319 Cr.PC is correct. The conclusion is correct.

Hence, the revision is dismissed.