Marathupally Beeran vs State of Kerala

Hon''ble Mr. Justice M. Sasidharan Nambiar

Accused in C.C. 169/92 on the file of Judicial First Class Magistrate, Malappuram, who is challenging the order of learned Magistrate in C.M.P. 8220/04 wherein the prayer to recall PW 1 invoking powers under Section 311 of Cr. P.C. was rejected by learned Magistrate is the petitioner. Petitioner was originally convicted for the offence under Sections 411, 471, 465 and 468 of I.P.C. Petitioner challenged conviction and sentence before Sessions Court in Crl. A. 155/93. Criminal Appeal was allowed setting aside conviction and sentence and remanding the case back to Magistrate with a direction to recall PW 13, the expert and also grant liberty to petitioner to examine the mediators as defence witnesses. Both petitioner and complainant and State challenged the order of remand before this Court in Crl. R.P. 142/95. 248/95 and 426/95. This court confirmed the order of the Sessions Court and dismissed the revisions. Petitioner thereafter filed C.M.P. 8220/04 before court below with a prayer to recall PW s. 1 and PW 13 under Section 311 of Cr. P.C. As per impugned order learned Magistrate dismissed petition holding that remand order is limited to the extent of recalling PW 13 and examining mediators and therefore PW 1 cannot be recalled. It is challenged in this petition filed under Section 482 of Cr. P.C. Heard Adv. M.K. Damodaran, learned counsel appearing for revision petitioner and Adv. Sathyanatha Menon appearing for second respondent who is permitted to be impleaded as a necessary party in the revision.

Section 311 of Cr. P.C. provides that any court may, at any stage of any inquiry, trial or other proceeding summon any person as a witness, or examine any person in attendance, any person already examined; and the Court shall summon and examine or recall and re-examine any person already examined if his evidence appears to it to be essential to the just decision of the case. Therefore, the crux for invoking Section 311 of the Code is the satisfaction of the Court that it is essential for a just decision of the case either to summon and examine any person as a witness or recall and re-examine a witness or examine any person. Once that satisfaction is arrived at, it is mandatory that court shall either summon and examine or re-call and re-examine such person. Argument of Adv. M.K. Damodaran is that order of remand does not a bar the power of learned Magistrate under Section 311 either expressly or impliedly and in the interest of justice it is essential to re-call or re-examine PW 1, who was examined in 1992, before the expert was re-called and re-examined as well as the mediators are examined pursuant to the order of remand. Adv. Sathyanatha Menon would argue that scope of the remand order is limited to the extent provided therein and as the remand order shows that the limited purpose for which the case was remanded was to re-call PW 13 and to enable the accused to examine the mediators and therefore PW 1 who was examined earlier cannot be recalled and reexamined.

To appreciate the scope of order of remand it is necessary to extract relevant portion of the order of this court in the earlier revisions. It reads as follows:

The learned Magistrate after collecting the additional evidence as directed by the learned Sessions Judge shall, deal with the matter afresh, based on the evidence already on record and that collected pursuant to remand untrammeled by any of the views contained in the judgment of the learned Sessions Judge. It is made clear that the Magistrate will be entitled to have a free and fresh look on the matter with reference to the evidence finally available. Question is whether the said direction of this court to have a free and fresh available, restricts the power of the Magistrate under Section 311 of Cr. P.C.

Apex Court in Jamatraj Kewalji Govani Vs. The State of Maharashtra, had considered the scope of Section 540 of Cr. P.C. 1898 corresponding to Sections 311 of 1973 Code. It was held that Section 540 is intended to be wide as the repeated use of the word ''any'' throughout its length clearly indicates. Section is in two parts. First part gives a discretionary power but latter part is mandatory. There is no limitation on the power of the court arising from the stage to which the trial may have reached, provided the court is bonafide of the opinion that for the just decision of the case, step must be taken. Requirement of just decision of the case, step must be taken. Requirement of just decision of the case does not limit the action to something in the interest of accused only. Action may equally benefit the prosecution. It was therefore held "It is difficult to limit the power under our Code to cases which involve something arising ex improviso which no human ingenuity could foresee, in the course of the defence. Our Code does not make this a condition of the exercise of the power and it is not right to embark on judicial legislation. Cases that go that far are of course not quite right. Indeed they could be decided on fact because it can always be seen whether the new matter is strictly necessary for a just decision and not intended to give an unfair advantage to one of the rival sides."

This aspect was subsequently analysed in the light of Section 311 by the apex court in Rajendra Prasad v. Narcotic Cell 1999 SCC (Cri.) 1062. It was held that it is not correct legal proposition that court cannot exercise power of resummoning any witness if once that power was exercised, nor can the power be whittled down merely on the ground that prosecution discovered laches only when the defence highlighted them during final arguments. Position is similar herein. For the reason that PW 1 was not recalled before he was originally convicted or for the reason that the order of remand does not provide on the ground the remand order does not prove that PW 1 can be recalled and reexamined, power of the Magistrate under Section 311 of Cr. P.C. cannot be curtailed. Power is unbridled. Only condition is that Magistrate has to be satisfied that it is necessary for a just decision of the case. As held by Apex court in Jamatraj''s case, where the court exercises the power under second part of Section 311 the enquiry cannot be whether accused has brought anything suddenly or unexpectedly, but whether the court is right in thinking that new evidence is need by it for a just decision of the case. Unfortunately this aspect was not looked into by the learned Magistrate at all. There is force in the argument of Adv. Sathyanatha Menon that petition does not disclose the reason for which PW 1 is to be recalled and re-examined. Only allegation in the petition was that order of remand enables the court below to have a fresh look on the evidence and therefore PW 1 has to be examined. It is for the Magistrate to decide whether it is necessary for a just decision of the case to recall and reexamine PW 1. Though reason for recalling PW 1 is not shown in C.M.P. 8220/04, considering the fact that PW 13, the expert has to be re-examined, it is necessary to recall and re-examine PW 1, before PW 13 was cross examined for a just decision of the case. Learned Magistrate should have permitted the petitioner to recall PW 1 and re-examine him after limiting the scope of reexamination. Therefore, the impugned order in C.M.P. 8220/04 in C.C. 169/92 is set aside and PW 1 is permitted to be recalled and re-examined for the limited extent of cross examining PW 1 with reference to documents executed by PW 1 and his handwriting. Learned Magistrate is directed to recall PW 1 within a period of two weeks from the date of receipt of order.