V.K. Sasikala vs State

K.N. Keshavanarayana, J.—In this petition filed u/s 482 Code of Criminal Procedure, the Petitioner herein who has been arraigned as accused No. 2 in Spl. C.C. No. 208/04 before XXXVI Additional City Civil and Sessions Judge (Special Judge), Bangalore has sought for setting aside the order dated 3.6.2011 passed in the said case on I.A. No. 558/2011 filed u/s 311 of Code of Criminal Procedure and to allow the said application.

The Petitioner herein along with other accused persons has been facing charges for the offences punishable under Sections 120B and 109 r/w 13(2) and 13(1) of the Prevention Corruption Act. Accused No. 1 in the case is Selvi Jayalalithaa who is presently the Chief Minister of the State of Tamil Nadu. Between 1991-1996 accused No. 1 was the Chief Minister of the State of Tamil Nadu. However, during the General Elections held'' to the Legislative Assembly of that State in 1996, the party headed by accused No. 1 viz., AIADMK was defeated and DMK party was voted to power. Thereafter several cases were registered against accused No. 1 and Others for various offences said to have been committed by her during her tenure as Chief Minister of the State. After investigation, charge sheet came to be filed by the Superintendent of Police, Directorate of Vigilance and Anti-Corruption, Chennai (for short S.P., DVAC) and one such case was Spl. C.C. No. 7/97. The State Government of Tamil Nadu constituted Special Court for the trial of the case filed against accused No. 1 and others. In Spl. C.C. No. 7/97 with which we are concerned accused Nos. 1 to 4 were charge sheeted for the offences punishable under Sections 120B and 109 of Indian Penal Code, 1860 and Section 13(2) r/w 13(1)(a) of the P.C. Act. The learned Special Judge at Chennai before whom the charge sheet came to be laid took cognizance of the offence alleged in the charge sheet and directed issue of summons to the accused persons. Upon appearance of the accused persons, charges were framed and plea of the accused, persons were recorded. Since the accused persons pleaded not guilty of the charges levelled against them and claimed to be tried, the Special Court proceeded with the trial of the case. By April 2000 about 250 prosecution witnesses were examined. Thereafter, in the General Election held in May 2001 the party headed by accused No. 1. secured absolute majority in the assembly and she on being unanimously chosen as leader of the House by the elected members of the Legislative Assembly of that party, was sworn in as the Chief Minister of Tamil Nadu. Thereafter, in the trial of Spl. C.C. No. 7/97 several developments took place wherein 76 witnesses who had already been examined earlier were recalled for further cross-examination and during the further cross-examination, they appear to have resiled from their earlier evidence and in spite of the same there was No. attempt on the part of the Public Prosecutor to declare them hostile and to cross examine those witnesses. In the light of those developments, petitions were filed before the Supreme Court u/s 406 of Code of Criminal Procedure seeking transfer of Spl. C.C. No. 7/97 which was pending before the Special Court, at Chennai to a Court of equivalent and competent jurisdiction in any other State inter alia on the, ground that free and fair trial is not going on and process of justice is subverted. The Hon''ble Supreme Court by its judgment dated 18.11.2003, allowed the transfer petition and ordered transfer of Spl. CC. No. 7/97. to the State of Karnataka with a direction to the State of Karnataka to constitute a Special Court in consultation with the Chief Justice of the High Court of Karnataka. The Hon''ble Supreme Court also directed the State of Karnataka in consultation with the Chief Justice of the High Court of Karnataka shall appoint a Senior Advocate having experience in criminal trials as Public Prosecutor to conduct these cases and the prosecutor was given liberty to apply for recalling the witnesses who have been recalled and cross-examination by the accused and who have resiled from their previous statement and to have those witnesses declared hostile and to seek permission, to cross-examine them. Pursuant to the said direction, the Government of Karnataka constituted XXXVI Addition City Civil and Sessions Judge as Special Court to try Spl. C.C. No. 7/97. Upon such transfer, the case in Spl. C.C. No. 7/97 was renumbered as Spl. C.C. No. 208/04, Sri. B.V. Zachary, Senior Advocate was appointed as Special Public Prosecutor. Before the Special Court at Bangalore, Special Public Prosecutor sought recalling of certain witnesses as indicated in the judgment of the Supreme Court and they were cross-examined on being treated hostile. After the Special Public Prosecutor closed the prosecution evidence and when the case was set down for examination of the accused u/s 313 Code of Criminal Procedure, the Petitioner herein accused No. 2 filed an application u/s 311 of Code of Criminal Procedure in I.A. No. 558/2011 seeking to recall PW.230- Balaji a Chartered Accountant by profession for the purpose of further examination and to mark the documents viz., subscription details, Bank statements, Sale bills, scheme deposits and Income Tax returns and financial statements relating to "Namadu MGR" a division of Jaya Publication inter alia on the ground that though the said witness in his earlier evidence had spoken to about the income of Namadu MGR, documentary evidence has not been marked through him, therefore, it is necessary to mark the documentary evidence through him, therefore, it is necessary to mark the documentary evidence through him. He was also sought to be recalled to speak with regard to the income relating to firms namely Metal King, Vinoth Video Vision, Anjeneya Printers and Super Duper TV. According to the applicant, her earlier counsel failed to mark vital documents through the witness to prove the income of the above said concerns as such it is necessary to further cross-examine the witness to place the truth on record. It was also stated in the application that the prosecution filed application I.A.321 to recall PW.230 along with other witnesses and though the said application was allowed by the Court, the Special Public Prosecutor by filing a memo dispensed with the examination of PW.230 and this act on the part of Special Public Prosecutor dispensing with the examination of PW.230 was without jurisdiction, therefore, further examination of PW.230 is essential for just decision of the case. It was also stated in the application that the present application is filed without prejudice to the right of the accused to recall other witnesses.

The said application was opposed by the Special Public Prosecutor inter alia contending that the application is frivolous, vexatious and the same is not maintainable either on law or on facts; the application is belated and lacks bonafides; the application is highly speculative and had been filed only with an objective of delaying and protracting the proceedings and the reservation of the liberty to file further application of similar kinds to recall witnesses is indicative of the object of the application; the reasons assigned in the application are flimsy, the averments seeking justification for recall of the witness are vague and indefinite, as such No. justifiable ground is made out for recalling the said witness. It was further contended that the witness sought to be recalled had already been recalled and cross-examined at great length on 20th and 21st of January 2003 and on 4th February 2003 and No. valid reasons are assigned as to why the documents intended to be marked now had not been marked earlier and No. valid reasons are assigned as to why the necessary information was not elicited when the witness was in the box. The allegation that the Special Public Prosecutor had No. jurisdiction to give up a witness once permitted to be recalled was denied. It was further contended that recalling of witness examined in the case at the instance of the accused has been criticized by the Hon''ble Supreme Court in the order transferring the case to the Special Court at Bangalore and those observations holds good even for the present request made by the application for recalling PW.230.

After hearing both sides, learned Special Judge by the order dated 3.6.2011 impugned in this petition rejected the application and declined to recall PW.230 as sought in the application filed by the Petitioner mainly on the ground that there were No. bonafides in the application, the application is highly belated and filed with a view to protract and delay the proceedings and No. reasons are assigned as to why the documents now sought to be marked were not marked earlier when the witness was recalled and cross-examined at length for 3 days. Being aggrieved by the said order, the Petitioner/ accused No. 2 has presented this petition.

To this petition, State represented by the Superintendent of Police, DVAC, Chennai, Tamil Nadu was" arraigned as party Respondent. It appears a copy of the petition was served personally on the Superintendent of Police, DVAC, Chennai instead of serving the same on Special Public Prosecutor. When the petition was listed before the Court for the first time, Sri. M.T. Nainaiah, Senior Advocate took notice of the petition and appeared on behalf of the Superintendent of Police, DVAC, Chennai on the ground that he has been instructed to appear and contest this petition on behalf, of Respondent. Thereafter Sri.B.V. Aachary, Senior Advocate, who had been appointed as Special Public Prosecutor in the case to conduct trial before the Special Court as per the directions of the Apex Court in the order of transfer, sought to be imp leaded. As per the direction of this Court, the Special Public Prosecutor was imp leaded as Respondent No. 2.

I have heard Sri. Day Holler, learned Senior Counsel representing the Petitioner as also Sri. M.T. Anaya representing Respondent No. 1 viz., Superintendent of Police, DVAC, Chennai and Sri. B.V. Zachary, Special Public Prosecutor appointed by the State of Karnataka to conduct the trial in Sple. C.C. No. 208/04,

Sri. Day Holler, learned Senior Counsel during the course of the arguments contended as under:

That the object underlying Section 311 of the Code is that there may not be failure of justice on account of mistake of either party in bringing valuable evidence on record and the determinative factor is whether or riot the evidence sought to be brought on record is essential to the just decision of the case; that the learned Special Judge while rejecting the application in question has not recorded any finding as to whether or not the evidence sought to be now brought on record is essential to the just decision of the case and in the absence of any such finding, the impugned order is bad in law as such, it is liable to be set aside; that even if there is some lapse on the part of the counsel in bringing the evidence on record earlier, that itself cannot be a factor to deny the opportunity to the accused to bring the evidence on record and in such circumstance the court is required to consider only as to whether the evidence sought to be brought on record is essential for the just decision in the case; that rejection of the application mainly on the ground that there has been delay in filing the said application is contrary to the well settled principles of law laid down by the Apex Court and this Court in which it has been clearly laid down that an application u/s 311 of Code of Criminal Procedure can be made at any stage of the enquiry or trial so long as the judgment has not been pronounced. Therefore, rejection of the application on the ground of delay is perverse and illegal as such the order impugned is liable to be set aside; in case where the accused have been charged of amazing wealth disproportionate to the known source of income, the accused should have an opportunity to explain the source for acquiring the assets and now the additional evidence sought to be brought on record is in the nature of explaining the different sources for acquisition of assets, therefore, the evidence now sought to be brought on record is essential and necessary for the just decision in the case, therefore, the learned Special Judge ought to have allowed the application though these documentary evidence have not been brought on record when the witness was in the witness box earlier; that accused were not responsible for the delay in completion of the trial; on the other hand the delay in completion of the trial is attributable only to the prosecution as such on the ground of the delay, the application ought not to have been rejected. Therefore, the learned Senior Counsel sought for allowing the petition and to order recalling witness PW.230. In support of his contentions the learned Senior Counsel placed reliance on several decisions.

Sri. M.T. Nanaya, learned Senior Counsel appearing for Respondent No. 1 sought to justify the order impugned in the petition contending that there are No. bonafides on the part of the Petitioner in filing the application at the fag end of the trial; that the Petitioner had ample opportunity earlier and having failed to bring these evidence on record, it is not open to her to seek recalling of the witness; that the present application is only to delay and protract the proceedings. Therefore, the application has been rightly rejected by the learned Special Judge as such the order does not suffer from any illegality or irregularity warranting interference by this Court.

Sri. B.V. Aachary, learned Special Public Prosecutor contended that there are No. bonafides in the application. The turn of events would, clearly indicate as to how the Petitioner and other accused are trying to delay and protract the proceedings, therefore, the learned Special Judge is justified in rejecting the application. By drawing the attention of this Court to the observations made by the Apex Court in the order of transfer with regard to the manner in which various witnesses were recalled and cross-examined who resiled from their earlier evidence, learned Special Public Prosecutor contended that the present attempt is also with a view to demolish the earlier evidence of the witnesses, therefore, such an attempt should not be permitted and the observations made by the Apex Court in this regard would hold good for the present attempt made by the Petitioner. Therefore, the rejection of the application does not warrant interference by this Court; that even the documentary evidence which is sought to be marked through the witness have not been placed on record, therefore the learned Special Judge is Justified in rejecting the application. Therefore, he sought for dismissal of the petition.

In the facts and circumstances of the case and in the light of me submissions made on both sides, the point that arise for my consideration is, "Whether the order rejecting the application filed u/s 311 Code of Criminal Procedure to recall PW.230 for further examination suffers from any illegality or irregularity calling for interference by this Court?"

Section 311 of Code of Criminal Procedure reads as under:

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.

In all most all the decisions cited by the learned Senior Counsel appearing on behalf of the Petitioner, the Apex Court as well as this Court has considered the scope and ambit of Section 311 of Code of Criminal Procedure

In the case of Jamatraj Kewalji Govani v. State of Maharashtra AIR 1968 SC 178, the Apex Court interpreting Section 540 of old Code which is paramate(sic)a with Section 311 of present Code, has held that the Section is intended to be wide as repeated use of the word ''any'' throughout its length clearly indicates. It has been further held that first part of the Section gives a discretionary power but the latter part is mandatory, as the section stands 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 the step must be taken,

In the case of Raj Deo Sharma (II) v. State of Bihar (1997) 7 SCC 604, the Apex Court has held that if the evidence of any witness appears to the Court to be essential to the just decision of the Court it is the duty of the Court to summon and examine or recall and re-examine any such person.

In the case of Rajendra Prasad Vs. The Narcotic Cell Through its Officer in Charge, Delhi, while considering the observations of the Court in the case of Mahanlal Sharniji Soni v. Union of India AIR 1991 SC 1346, wherein it has been held that the Court while exercising its power u/s 311 of the Code shall not use its power "for filling up the lacuna left by the prosecution", has observed thus in paras 7 and 8 of the judgment:

It. is a common experience in criminal courts that defence counsel would raise objections whenever courts exercise powers u/s 311 of the Code or u/s 165 of the Evidence "Act, 1872 by saying that the court could not "fill the lacuna in the prosecution case". A lacuna in the 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 prone. A corollary of any such laches or mistakes during, the conducting of a case cannot be understood as a lacuna which is 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''.

In Godrej Pacific Tech. Limited v. Computer Joint India Limited (2008) 11 SCC 1081 the Apex Court has held that the object underlying Section 311 of the Code is that there should not be failure of justice on account of mistake of either party in bringing the valuable evidence on record or leaving ambiguity in the statement of the witnesses examined from either side. The determinative factor is whether it is essential to the just decision of the case.

In the case of Chikkegowda and others v. State of Karnataka 1982 (1) KLJ 22, this Court has held that an application u/s 311 of Code of Criminal Procedure can foe made at any stage of the enquiry or trial and the only purpose is that the evidence must appear to be essential to the just decision of the case.

Thus from the aforesaid catena of decisions, it is clear that the power of the court u/s 311 of Code of Criminal Procedure is not limited. The underlying object of the said Section is that there will not be failure of justice on account of mistake on either of the parties in bringing the available evidence on record and the determinative factor would be as to whether the evidence sought to be produced is essential to the just decision of the case. It is also further clear that even if there is some failure on either of the parties in bringing such valuable evidence on record and if the Court is of the opinion that such evidence is essential to the just decision of the case, mere delay or lapse on the part of any of the parties should not come in the way of permitting" such evidence being brought on record.

Keeping these principles in mind let me consider as to, "whether in the case on hand rejection of the request on the part of the Petitioner to recall PW.230 for the purpose of further examination is justified?"

As noticed supra, the principal contention urged by learned Senior Counsel appearing for the Petitioner is that the learned Special Judge in the course of the order has not recorded a finding as to whether or not the farther examination of the witness and marking of the document mentioned in the application are essential for just decision of the case. No. doubt, reading of the order impugned in this petition which is passed by the learned Sessions Judge would indicate that in so many words he has not stated as to whether the further examination of the witness and document sought to be marked through the witness are essential for the just decision of the case. On the other hand, the learned Special Judge as noticed supra, has rejected the said prayer mainly on the ground that the application is not bonafide; that it is filed only with a view to delay and protract the proceedings; that the witness who had already been cross-examined at length spreading over 3 days as such the Petitioner is not entitled for the permission sought.

As. could be seen from the copy of the application filed before the trial u/s 311 of Code of Criminal Procedure requesting to recall PW.230, the Petitioner has stated therein that recalling of PW.230 for further examination is required for marking certain documents stated therein. It is not forthcoming as to whether or not the documents mentioned in the application are already on record. It is the submission of the learned Special Public Prosecutor that these documents are not before the Court in the sense that those documents have not been produced before the Court by the accused. The learned Senior Counsel appearing on behalf of the Petitioner did not seriously dispute the fact that the documents mentioned in para 1 of the petition are not produced before the Court. If the documents sought, to be marked through the witness are not produced before the Court and the attention of the Court is not drawn to the contents of those documents, certainly the court will not be in a position to record any finding as to whether or not the documents sought to be admitted in evidence is essential for the just decision of the case. Similarly in para 2 of the application it is stated that further examination of the witness is required in respect of four firms mentioned therein. The application is silent as to how the further examination of the witness is essential in relation to those firms. Therefore, the Petitioner cannot find fault with the impugned order for not recording a finding as to whether or not these documents are essential for the just decision of the case. The attention of the court was drawn by the learned Senior Counsel appearing for the Petitioner to the evidence of PW.230 recorded earlier wherein during cross-examination the witness has spoken about the income relating to Namadu MGR which is stated to be a division of Jaya Publication. The Apex Court in the course of the order of transfer, in relation to the answer given by this witness after being recalled which appears to be contrary to his earlier evidence and not supported by any documents, has noticed the serious contentions urged by the Petitioner therein as to the manner in which the witnesses were recalled and further cross-examined, wherein the witnesses resiled from their earlier evidence and No. attempt was made by the Public Prosecutor to treat such witnesses hostile. Reference has also been made with respect to PW.230 in para 18, which reads as under:

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So also PW.230 Shri N.V. Balaji, Auditor of some of the accused whose chief examination was over in the year 2000, on recall has stated in the cross-examination that the accused had enormous funds during the relevant period. His statement was made orally contrary to his deposition in the chief examination, unsupported by any assessment returns or other documentary evidence. The Public Prosecutor has not disputed this nor put any suggestion controvert the above statement,

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The perusal of the deposition of PW.230 clearly'' indicates that first he was examined in chief on 9.8.2000 and since he was not cross-examined on that day immediately cross-examination was taken as nit and thereafter the witness was recalled on 20.1.2003 and cross-examined on that day, on the next day and also on 4.2.2003 at length. However the answers have been elicited from him in relation to so called income of Namadu MGR Nothing has been elicited there with reference to the existence of any documents. It is also noticed that subsequently, No. attempt has been made to recall the said witness with reference to the alleged documents. No. doubt, after the case was transferred to the Special Court at Bangalore, the request of the Special Public Prosecutor to recall PW.230 was allowed. However the Special Public Prosecutor thought it fit not to cross-examine the witness by treating him hostile therefore, he dispensed with the examination of PW.230. The argument that Special Public Prosecutor had No. authority to give up the witness once recalled has No. substance. The Special Public Prosecutor has absolute authority to give up the evidence of any witness if he is of the opinion that the evidence of such witnesses is not essential. It is brought to the notice of this Court that at one point of time accused themselves wanted to examine this witness as a defence witness and that attempt was given up later. Having regard to the facts and circumstances of the case and the stage at which the present application was filed, I find great force in the contention of the learned Special Public Prosecutor that there are No. bonafides in the application and the application was filed only with a view to delay and protract the proceedings and to further destroy the evidence of the witness. The time at which the application came to be filed for recalling PW.230, and the statement therein that she reserves right to seek recalling of other witnesses, would clearly indicate that the application was intended only to protract the proceedings. It is to be noticed that when the case was transferred to Special Court at Bangalore, accused No. l was in the office as Chief Minister of the State of Tamil Nadu and in the subsequent election her party was defeated. However, in the recent election field to the State Assembly, the party headed by her secured majority and she has been sworn in as Chief Minister just few days prior to the filing of this application. The fact that now the SP, DVAC is trying to by-pass the Special Public Prosecutor makes this Court to note that the observations made by the Apex Court in the order of transfer that the process of justice is being subverted would apply to the present situation. Now the case is set down for examination of the accused u/s 313 Code of Criminal Procedure If really the Petitioner thinks that the documents mentioned in the application are very essential for the just decision of the case, she would have an opportunity to place them on record as defence evidence. Therefore, No. prejudice has been caused to the Petitioner in not allowing the application. Therefore, I find No. illegality or irregularity in the order passed by the trial Court rejecting the application. In this view of the matter, there are No. merits in this petition.

In the result, the petition is rejected, In view of the rejection of the petition, Misc. Crl. No. 3392/2011 filed for stay does not survive for consideration. Therefore, the same is also rejected.