P.T. Augustine vs Central Bureau Of Investigation, Represented By Its Prosecutor

A.Badharudeen, J

Common order dated 10.02.2026 in Crl.M.P.Nos.1/2026 and 2/2026 in C.C.No.35/2014 on the files  of  the  Special  Court  (SPE/CBI)-III,  Ernakulam,  is  under challenge  in  this  petition  at  the  option  of  accused  Nos.5  and 6 in the said case.

Heard the learned counsel for the petitioners/accused Nos.5 and 6 and the learned Special Public Prosecutor appearing for the Central Bureau of Investigation (CBI). Perused the common order under challenge and the decisions placed by the learned Public Prosecutor for CBI as well as the learned counsel for the petitioners.

In this matter, as on 19.12.2025, on completion  of  examination  of  PW1  to  PW32  and  marking  of Exts.P1 to P106, after hearing both sides, the learned Special Judge, as per order dated 19.12.2025, had suo motu re-opened the case noticing the fact that Exts.P49 to 51, title deeds, were examined by CW39, the finger print expert, and he  also  compared  the  thump  impressions  of  accused  Nos.4 to 6 with the thump impressions in the Thump Impression Register kept in the Sub Registrar’s Office, Melattoor, and on finding the necessity for examining the witnesses to prove the same. Pursuant to the said suo motu re-opening, the prosecution filed Crl.M.P.No.1/2026 and Crl.M.P.No.2/2026 and  the  prayers  in  the  said  petitions  were  to  recall  PW7  and PW32  (the  Investigating  Officer) for  further  examination  and also  to summon  CW29 and  an  additional  witness,  Sri.  Girish Kumar M. for examination on the prosecution side. The learned Special Judge, after addressing the issue, allowed the application for the reasons stated in paragraph No.8 of the impugned common order and paragraph No.8 of the impugned common order reads as under:

“8. I have considered the submissions made by either side. PWs 1 to 32 were already examined and Exts.P1 to P106 were marked on the side  of  the  prosecution.  Both  sides  submitted  their arguments and when the case was posted for further hearing, this Court as per order dated 19.12.2025 has suo-motu re-opened the case, noticing that Exts.P49 to P51, title deeds were examined by CW39, the Finger Print Expert and he also  compared  the  thumb  impressions  of  A4  to  A6 with the thumb impressions in the Thumb Impression Register kept in the Sub Registrar’s Office, Melattoor. The report submitted by CW39 and the Thumb Impression Register seized from the Sub Registrar’s Office were produced before Court along with the final report, but not seen marked on the side of the prosecution. Likewise, the thumb impressions of A4 to A6 collected during investigation and sent to CW.39 for examination were not seen produced before Court along with the final report. Further, CW39 is seen wrongly given  up  by  the  Prosecutor.  Accordingly,  this  Court has directed the prosecution to produce the specimen  thumb  impressions  of  A4  to  A6  collected during investigation for subsequent examination of CW39  and  marking  of  documents.  Pursuant  to  the said order of this Court, it is reported by the prosecution that the thumb impressions of A4 to A6 are not traced out, as they are missing from the office.  Though  thorough  search  was  ordered  to  be conducted by this Court, there was no positive result. At this stage, the prosecution has filed the present applications. The accused herein are charged by the CBI, with an allegation that the accused Nos. 4 to 6 impersonated themselves as Sebi Sebastian, Joy Chacko and Sijo Francis and executed Exts.P49 to P51, sale deeds, i.e. document Nos.6097/2006, 6098/2006 and 6099/2006 of SRO, Melattoor in the impersonated name referred to above. During investigation, the Thumb Impression Register was seized from the Sub Registrar Office, Melattoor and produced before Court along with the final report as document No.118, but the same is not seen marked on the side of the prosecution. Likewise, the Finger Print Opinion Report dated 14.07.2010 issued by CW39, S. Rajkumar was also produced before Court  as  document  No.  121  along  with  final  report and  the  same  was  also  not  marked  on  the  side  of the prosecution. Now, the prosecution requests to call  for  the  entire  file  relating  to  the  examination  of the thumb  impressions of A4  to A6 from the Finger Print Bureau, Trivandrum, as the photographs of the finger prints are available in the said file. The evidence in this case is incomplete with regard to the  examination  of  the  thumb  impressions  of  A4  to A6, submission of report by CW39, the Finger Print Expert and also regarding the marking of the Thumb Impression Register referred to above and some other vital documents. I am satisfied that recalling PW7 and 32 for further examination and summoning CW39 and the additional witness named Girishkumar, Inspector of Police, CBI cited by the prosecution, is very essential for the just decision of the case. Likewise summoning the entire file from the Finger Print Bureau, Trivandrum relating to Finger Print Opinion Report submitted by CW39 dated 14.07.2010 and bearing No. X2- 5249/FPB/2010 is also very essential for the just decision of the case. I am also satisfied that no prejudice  will  be  caused  to  the  accused  in  allowing these applications, as they have notice regarding the earlier production of documents, even as per the final report. Hence, I am inclined to allow these applications and to recall PW7 and PW32 for further  examination  and  to  summon  CW39  and  the additional witness cited by the prosecution and also to call for the documents, i.e, the file indicated above. Point answered accordingly.”

While impugning Annexure A5 order, which is under challenge, the learned counsel for the petitioners/accused Nos.5 and 6 pointed out that going through the manner in which the learned Special Judge allowed the petition, the same would show that the prosecution was allowed to fill up the inherent defects and lacuna in the evidence with the aid of Section 311 of Cr.P.C. which, in fact, is not meant for the same. Therefore, it is submitted that the learned Special Judge exceeded his authority, and passed Annexure A5  common order under the guise of Section 311 Cr.P.C. Thus, the impugned common order is liable to be set aside, since the same is prejudicial to the interest of the petitioners.

The learned counsel for the petitioners/accused  Nos.5  and  6 also  placed  reliance  on  the decision  of  the  Apex  Court in  Natasha Sing  v. CBI  (State) reported in AIR 2013 SC (CRIMINAL) 1564, with specific reference to paragraph No.18, which reads as under:

“18. Undoubtedly, an application filed  under  Section  311  Cr.P.C.  must  be  allowed  if fresh evidence is being produced to facilitate a just decision,  however,  in  the  instant  case,  the  learned Trial Court prejudged the evidence of the witness sought to be examined by the appellant, and thereby  cause  grave  and  material  prejudice  to  the appellant as regards her defence, which tantamounts to a flagrant violation of the principles of law governing the production of such evidence in keeping  with  the  provisions  of  Section  311  Cr.P.C. By doing so, the Trial Court reached the conclusion that the production of such evidence by the defence was not essential to facilitate a just decision  of the case-Such an assumption is wholly misconceived, and is not tenable in law as the accused has every right to adduce evidence in rebuttal of the evidence brought on record by the prosecution. The court must examine whether such additional  evidence  is  necessary  to  facilitate  a just and  proper  decision  of  the  case.  The  examination of the hand-writing expert may therefore be necessary to rebut the evidence of Rabi Lal Thapa (PW.40), and a request made for his examination ought not to have been rejected on the sole ground that the opinion of the hand-writing expert would not be conclusive. In such a situation, the only issue that ought to have been considered by the courts  below,  is  whether  the  evidence  proposed  to be adduced was relevant or not. Identical is the position regarding the panchnama witness, and the court is justified in weighing evidence, only and only once the same has been laid before it and brought  on  record.  Mr.  B.B.  Sharma,  thus,  may  be in a position to depose with respect to whether the documents alleged to have been  found, or to have been seized, were actually recovered or not, and therefore, from the point of view of the appellant, his examination might prove to be essential and imperative for facilitating a just decision of the case.”

Whereas it is submitted by the learned Special Public Prosecutor that, in fact, after completion of the evidence and arguments, the court suo motu exercised its power under Section 311 of Cr.P.C. as per order dated 19.12.2025. Paragraph No.8 of the common order would depict that the Special Judge satisfied with the absolute necessity for recalling PW7 and PW32 for further examination  and  summoning  PW39  and  Sri.Girish  Kumar.M, as witnesses for examination on the finding that the said course  of  action  is  absolutely  necessary  for  the just  decision of  the  case.  It  is  pointed  out  that in  paragraph  No.14  of  the decision in Mathew M.P. v. Central Bureau of Investigation and Others, reported in 2021 (6)  KHC  407, this Court considered the question of filling lacuna of evidence  made  by  the  prosecution  and oversight  committed by the prosecution during trial and observed as under”

“14. There is also no merit in the contention of the learned counsel for the petitioner that the attempt of the prosecution is to fill the lacuna in the prosecution case. A lacuna in 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 proned. A corollary of any such laches or mistakes during the conducting of a case cannot be understood  as  the lacuna  which a court cannot fill up.  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 (See Rajendra Prasad v. Narcotic Cell : AIR 1999 SC 2292).”

The learned Special Public Prosecutor placed another decision of the Apex Court in Tamilmaran K.P. v. State by Deputy Superintendent of Police, reported in 2025 KHC 6400, with reference to paragraph Nos.47 to 51, and observed as under:

“S.311  Cr.P.C.  can  also  be  read  along  with S.165 of the Evidence Act, as the powers of the Court under  S.165  of  the  Evidence  Act  are  complementary to S.311 of Cr.P.C. As discussed above, powers under S.311 Cr.P.C. can be either be exercised on an application moved by either side to the case or suo motu by the Court. In case a person is not listed as a witness in the charge-sheet but later, the prosecution desires to bring that person as an additional prosecution  witness, then the  prosecution  can  move an application to bring this person as a prosecution witness. It is then for the Court to decide whether such  a person  is  required  as  a witness  or  not.  If  the Court finds that such a person should have b een examined as  a prosecution  witness and he/she  was omitted from the list of witnesses due to some oversight,  mistake  or  for  any  other  reason,  the  Court may  allow  the  application  and  as  such  a person  can eb examined as a prosecution witness. Thereafter, the normal course of examination-in-chief, cross- examination etc. would follow as per the procedure. On the other hand, when the Court calls a person as a Court witness, there are some restrictions regarding the cross-examination of such witness. In a case where neither party is interested in examining a person as a witness yet the Court feels that the evidence of such a person is necessary for a just decision,  the  Court  through  cannot  compel  either  the prosecution or the defence to call a witness, but it can invoke its power under S.311 Cr.P.C., read with S.165  of  the  Evidence  act  and  call  such  a person  as a Court  witness.  Whether  a person  is  required  to  be examined as a witness for a just decision is against a question which has to be decided by the Court on the basis of the facts of that particular case.”

The  learned  Special  Public  Prosecutor  also placed another decision of the Apex Court in State represented by the Deputy Superintendent of Police v. Tr.N.Sreenivasagan, reported in 2021 KHC 6134 and paragraph No.15 appears to be relevant  and the same reads as under:

“15. The scope and object of the provision is to enable the court to determine the truth and to render a just decision after discovering all relevant facts and obtaining proper proof of such facts, to arrive at a just decision of the case. Power must be exercised judiciously and not capriciously or arbitrarily, as  any  improper  or  capricious  exercise  of  such  power may  lead  to  undesirable  results.  An  application  under 5.311 Cr.P.C. must not be allowed only to fill up a lacuna in the case of the prosecution, or of the defence,  or  to  the  disadvantage  of  the  accused,  or  to cause serious prejudice to the defence of the accused, or to give an unfair advantage to the opposite party. Further,  the  additional  evidence  must  not  be  received as a disguise for retrial, or to change the nature of the case  against  either  of  the  parties.  Such  a power  must be  exercised,  provided  that  the  evidence  that  is  likely to  be  tendered  by  a witness,  is  germane  to  the  issue involved.  An  opportunity  of  rebuttal  however,  must  be given to the other party. The power conferred under S.311 Cr.P.C. must therefore, be invoked by the court only in order to meet the ends of justice, for strong and valid reasons, and the same must be exercised with great caution and circumspection. The very use of words such as "any court", "at any stage" or "or any enquiry,  trial  or  other  proceedings",  "any  person"  and "any such person" clearly spells out that the provisions of this section have been expressed in the widest possible terms, and do not limit the discretion of the court  in  any  way.  There  is  thus  no  escape  if  the  fresh evidence to be obtained is essential to the just decision  of  the  case.  The  determinative  factor  should therefore be, whether the summoning/recalling of the said witness is in fact, essential to the just decision of the case".

On a plain reading of Section 311 of Cr.P.C., and supported by the decisions placed by both sides, the legal position is not in dispute. The power to summon material witnesses, or examine the persons present in the court, under Section 311 Cr.P.C. is a special power conferred upon the Court. Thus a Criminal Court is empowered to summon any person as a witness at the stage of inquiry, trial, or other proceeding proceeding, provided that such  summoning  and  examination  are  absolutely  necessary for the just decision of the case. Such a decision taken by a court of law normally shall not be interfered with, since the court which dealt with the case, after examining many witnesses is the best person who knows such necessity. Thus the scope of interference in such a decision is much less.  In  order  to  interfere  with  such  an  order,  there  must  be absolute perversity in the order.

When reading paragraph No.8 of the common order impugned, the suggestion made by the learned Special Judge is found to be justifiable and no perversity to  be found. Therefore, the contention raised by the learned counsel for the petitioners would not yield. Thus the common order is liable to be confirmed.

In the result, the petition stands dismissed.

Registry is directed to forward a copy of this order to the Special Court, forthwith.