THE HON'BLE SRI JUSTICE S. RAVI KUMAR CRIMINAL PETITION Nos.8243 & 8327/2012 Date:15.07.2014 Between:
Ganivada Peddi Naidu . Petitioner.
AND Koppaka Venkata Rao and another.
. Respondents.
The Court made the following :
THE HON'BLE SRI JUSTICE S. RAVI KUMAR CRIMINAL PETITION Nos.8243 & 8327/2012 ORDER:
These two petitions are filed against common order dated 14-09-2012 in Crl.MP.Nos.261 & 262/2012 in C.C.No.19/2009 on the file of Additional Judicial First Class Magistrate, V. Madugula.
2. Heard both sides.
3. The petitioner herein is accused in the above referred C.C.No.19/2009 and he filed those two Crl.MPs one is to recall him for further examination and the other is to receive documents. After considering the petition averments and the counter filed on behalf of the complainant-first respondent herein, trial Court dismissed both the applications. As seen from the order of the learned Magistrate, the petitioner herein earlier filed Crl.MP.No.80/2012 to examine D.W.2 and the same was dismissed on 13-04-2012, against that, he preferred petition to this Court in Crl.P.No.5378/2012 and the same was dismissed on 10-07-2012 and thereafter when the matter is posted for arguments, these two petitions are filed to receive copies of plaints and written statements in O.S.No.238/2008 on the file II Additional District Judge, Visakhapatnam and O.S.No.61/2008 on the file Senior Civil Judge, Chodavaram. It is also evident from the order of the learned Magistrate that the accused i.e., petitioner herein was imposed with costs when he did not get ready and that costs were not paid.
4. Now the contention of the Advocate for petitioner is that the documents filed along with the petition to receive are material documents to decide the main C.C.No.19/2009. He submitted that a liberal view has to be taken and opportunity shall be given to put forth material evidence, to have a just decision in the matter. In support of his argument, he relied on a judgment of Hon’ble Supreme Court in P. Sanjeeva Rao vs. State of A.P., he has drawn my attention to Para No.16 of the said judgment, which reads as follows:-
“We are conscious of the fact that recall of the witnesses is being directed nearly four years after they were examined in chief about an incident that is nearly seven years old. Delay takes a heavy toll on the human memory apart from breeding cynicism about the efficacy of the judicial system to decide cases within a reasonably foreseeable time period. To that extent the apprehension expressed by Mr. Rawal, that the prosecution may suffer prejudice on account of a belated recall, may not be wholly without any basis. Having said that, we are of the opinion that on a parity of reasoning and looking to the consequences of denial of opportunity to cross-examine the witnesses, we would prefer to err in favour of the appellant getting an opportunity rather than protecting the prosecution against a possible prejudice at his cost. Fairness of the trial is a virtue that is sacrosanct in our judicial system and no price is too heavy to protect that virtue. A possible prejudice to prosecution is not even a price, leave alone one that would justify denial of a fair opportunity to the accused to defend himself.”
5. In that case, the accused filed a petition to cross- examine prosecution witnesses in a C.B.I case, four years after their examination. The Hon’ble Supreme Court allowed the accused to cross-examine the witness on the ground that fairness of trial is a virtue that a sacrosanct in our judicial system and no price is too heavy to protect that virtue, because right of the accused to cross-examine was not afforded by the Courts below. The Hon’ble Supreme Court considering the nature of offence that too a bribery case filed by C.B.I permitted the accused to cross-examine the witnesses even after lapse of four years, but here in our case, the trial is concluded, and after petitioner was examined as D.W.1 and cross-examined and only at the stage of arguments, the present petitions are filed to receive documents and to recall him for the purpose of marking those documents. From the material, it is clear that the documents now sought to be marked are available with the petitioner since the suits are of the year 2008, whereas, this main Criminal Case is filed in the year 2009 i.e., almost one year after the institution of the suits. If really these documents are material and important for a just decision in the case, why he has not taken this step earlier even before commencement of the trial is not explained by the petitioner. As seen from the petition filed for recall of D.W.1 and to receive documents, there is absolutely no whisper as to why these documents are not tendered when the trial was in progress. Normally, any defence must be revealed while examining the prosecution witnesses, if really these documents are material, the petitioner ought to have cross- examined the complainant with reference to these documents though not filed at that time, as there is no bar to put the defence to prosecution witnesses. Admittedly, no such efforts are made and no reasons are assigned for not taking such steps. The learned Magistrate has considered the contentions and rival contentions of both parties judiciously and I do not find any wrong approach for denying the request of recalling the witness or receiving the documents.
6. For these reasons, I am of the view that there are no merits in the petitions and both the petitions are liable to be dismissed.
7. Accordingly, both the Criminal Petitions are dismissed. Since the C.C., is of the year 2009, I feel that the trial Court is to be directed to dispose of the case, within two months from the date of the receipt of this order.
8. As a sequel, miscellaneous petitions, if any, pending in these criminal petitions, shall stand dismissed.
JUSTICE S. RAVI KUMAR
Date:15.07.2014 mrb