IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 6TH DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MR.JUSTICE ARAVIND KUMAR CRIMINAL PETITION NO.256/2019 BETWEEN:
1. A. HARSHA AGED ABOUT 33 YEARS S/O DR. R. ANAND GUPTA.
2. DR. R. ANANDA GUPTA AGED ABOUT 62 YEARS S/O LATE K. RAMAIAH SETTY.
BOTH ARE RESIDING AT NO.366/F, 2ND CROSS 6TH MAIN RAMAKRISHNA NAGARA, H BLOCK MYSORE – 570 023.
... PETITIONERS (BY SRI. M.T. NANAIAH, SENIOR COUNSEL A/W SRI. BALASUBRAMANYA B.N., ADOVATE) AND:
THE STATE OF KARNATAKA BY N.R. TRAFFIC POLICE MYSORE REP. BY STATE PUBLIC PROSECUTOR HIGH COURT COMPLEX BANGALORE – 560 001.
... RESPONDENT (BY SRI. RACHAIAH S., HCGP) THIS CRIMINAL PETITION IS FILED U/S.482 CR.P.C PRAYING TO QUASH THE ORDER DATED:31.12.2018 PASSED BY THE HON'BLE III ADDITIONAL SENIOR CIVIL JUDGE AND CHIEF JUDICIAL MAGISTRATE AT MYSORE IN C.C.NO.320/2012.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Petitioners-accused Nos.1 and 2 are before this Court assailing correctness and legality of the order dated 31.12.2018 passed by III Additional Senior Civil Judge & CJM, Mysuru whereunder application filed by the prosecution under Section 311 Cr.P.C in C.C.No.320/2012, which proceedings have been initiated for the offences punishable under Sections 279, 304(A) IPC and Sections 146 read with Section 196 of Indian Motor Vehicle Act, 1989 (for short ‘IMV Act’) has been allowed and P.Ws.1, 4 and 13 were recalled and summons has been issued to them.
2. Heard Sri M.T. Nanaiah, learned Senior Counsel along with Sri. Balasubramanya B.N, for petitioners and Sri. S.Rachaiah, learned HCGP appearing for respondent-State.
3. On conclusion of trial, when matter came to be listed for reply arguments, two applications came to be filed by the prosecution under Sections 91 and 311 Cr.P.C namely, for production of offending vehicle bearing registration No.KA-09-EP-2314 from accused No.2 and to recall P.W.1, P.W.4 and P.W.13 contending interalia that said evidence would be required to be placed on record in order to prove the case of the prosecution. Said applications having been opposed by the accused, learned trial judge by impugned order dated 31.12.2018 has allowed the same on the ground that opportunity is required to be extended to the prosecution.
4. In order to prove the offences under Section 146 read with Section 196 of IMV Act alleged against petitioners, prosecution has examined number of witnesses in the instant case and one such witness was P.W.1- son of the deceased who has in unequivocal terms stated registration number of the vehicle which had met with the accident, which is alleged to have resulted in injuries being sustained by the deceased and as a result of it, in his death.
P.W.4 has also spoken about accused as well as vehicle in question both in his examination- in-chief and cross-examination. However, they did not identify the vehicle which was produced before Court during the cross–examination. P.W.13 also did not identify said vehicle. However, for reasons best known, prosecution had not treated them as hostile by cross-examining them and now they are sought to be re-examined by the prosecution.
5. Hon’ble Apex Court in the case of RAJARAM PRASAD YADAV VS. STATE OF BIHAR AND ANOTHER reported in (2013) 14 SCC 461 has defined the illustrative contours for consideration of an application filed under Section 311 Cr.P.C. which reads as under:
(i) “Whether the court is right in thinking that the new evidence is needed by it? Whether the evidence sought to be led in under Section 311 is noted by the court for a just decision of a case?
(ii) The exercise of the widest discretionary power under Section 311 Cr.P.C should ensure that the judgment should not be rendered on inchoate, inconclusive and speculative presentation of facts, as thereby the ends of justice would be defeated.
(iii) If evidence of any witness appears to the court to be essential to the just decision of the case, it is the power of the court to summon and examine or recall and re-examine any such person.
(iv) The exercise of power under Section 311 Cr.P.C. should be resorted to only with the object of finding out the truth or obtaining proper proof for such facts, which will lead to a just and correct decision of the case.
(v) The exercise of the said power cannot be dudbbed as filling in a lacuna in a prosecution case, unless the facts and circumstances of the case make it apparent that the exercise of power by the court would result in causing serious prejudice to the accused, resulting in miscarriage of justice.
(vi) The wide discretionary power should be exercised judiciously and not arbitrarily.
(vii) The court must satisfy itself that it was in every respect essential to examine such a witness or to recall him for further examination in order to arrive at a just decision of the case.
(viii) The object of Section 311 Cr.P.C. simultaneously imposes a duty on the court to determine the truth and to render a just decision.
(ix) The court arrives at the conclusion that additional evidence is necessary, not because it would be impossible to pronounce the judgment without it, but because there would be a failure of justice without such evidence being considered.
(x) Exigency of the situation, fair play and good sense should be the safeguard, while exercising the discretion. The court should bear in mind that no party in a trail can be foreclosed from correcting errors and that 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.
(xi) The court should be conscious of the position that after all the trial is basically for the prisoners and the court should afford an opportunity to them in the fairest manner possible. In that parity of reasoning, it would be safe to err in favour of the accused getting an opportunity rather than protecting the prosecution against possible prejudice at the cost of the accused. The court should bear in mind that improper or capricious exercise of such a discretionary power, may lead to undesirable results.
(xii) The additional evidence must not be received as a disguise or to change the nature of the case against any of the party.
(xiii) The power must be exercised keeping in mind that the evidence that is likely to be tendered, would be germane to the issue involved and also ensure that an opportunity of rebuttal is given to the other party.
(xiv) The power under Section 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 care, caution and circumspection. The Court should bear in mind that fair trial entails the interest of the accused, the victim and the society and, therefore, the grant of fair and proper opportunities to the persons concerned, must be ensured being a constitutional goal, as well as a human right.”
Thus, endeavour of the Court would be to search for justice and in said process for strong and valid reasons, power has to be exercised under Section 311 Cr.P.C and such exercise of power can be “at any stage” and it would be with great care, caution and with circumspection. Recall of a witness cannot be adopted as a matter of course and if the material on record calls for such recall, to advance justice such witnesses as deemed necessary would be recalled. However, balance will have to be stuck and mere observation that recall was necessary “for ensuring justice” or “fair trial” by itself would not be sufficient ground for recall, unless tangible reasons are assigned to show how fairness of trial would suffer if such witnesses are not recalled.
6. In the instant case, P.W.1, P.W.4 and P.W.13 came to be examined and cross-examined, not only on factual matrix but also with reference to the offending vehicle and in the absence of any other material to show that either said vehicle was not produced at the time of cross–examination of these witnesses or the prosecution had failed in the management of its case, this Court would have definitely accepted the plea of the prosecution and confirmed the order of the trial Court. However, in the instant case, it is not established by the prosecution about lack of case management. On the other hand, averments made in the application would clearly suggest that it is an attempt to fill up the lacuna by re-examining these witnesses who have not only been examined but also cross-examined extensively and as such recall of these witnesses would be impermissible.
7. Hence, I proceed to pass the following; ORDER (1) Criminal petition is allowed.
(2) Order dated 31.12.2018 passed by III Additional Senior Civil Judge and CJM, Mysore in C.C.No.320/2012 allowing the applications filed under Sections 91 and 311 Cr.P.C. is hereby set aside and said applications are dismissed.
In view of dismissal of petition, I.A.No.1/2019 for stay does not survive for consideration. Accordingly, it is dismissed.
SD/- JUDGE *sp