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Ammini Oommen, Represented by Power of Attorney holder Jolly Joseph, Pathanamthitta v/s Mathew Oommen & Another

    O.P.(CRL.). No. 354 of 2020

    Decided On, 10 March 2022

    At, High Court of Kerala

    By, THE HONOURABLE MRS. JUSTICE MARY JOSEPH

    For the Petitioner: Joseph George, P.A. Rejimon, Advocates. For the Respondents: R1, K. Sasikumar, S. Aravind, Advocates, R2, Aravind V. Mathew, Public Prosecutor.



Judgment Text

1. This original petition is filed under Article 227 of the Constitution of India aggrieved by the order passed by Judicial First class Magistrate Court-II, Pathanamthitta dismissing Crl.M.P No.3164/2020 for the reason that the direction to deposit Rs.3,000/- as costs for examination of the witnesses was not complied with. By the order, passed on 21.10.2020, Crl.M.P No.3164/2020 was allowed and evidence of the complainant was re-opened on condition of payment of Rs.3,000/- to the accused within 15 days. It was further directed that in case of default, the petition shall stand dismissed. Liberty was also granted to the complainant to pay the cost to the counsel for the accused and file a memo within the time granted. On 21.10.2020, noticing that the cost was not paid, petition was dismissed.

2. The relief sought in the petition are to the following effect;

“i. Direct the Hon’ble Judicial 1st Class Magistrate Court No.2 Pathanamthitta to enlarge the time of payment of cost of Rs.3,000/- ordered on 21.10.2020 and permit the petitioner to handover the cost to the accused or its counsel;

ii) Direct the Hon’ble Judicial 1st Class Magistrate Court No.2 Pathanamthitta to permit the petitioner to adduce additional evidence as ordered in Crl.M.P 3164/2020;

iii) Grant such other further reliefs as this Hon’ble Court may deem fit and proper in the interest of justice.”

3. It is submitted by Sri.Joseph George, the learned counsel for the petitioner that the cost directed by the court below could not be paid in time, since the petitioner and her counsel came to know about the conditional order only on 12.11.2020 and in the meanwhile, the time limit fixed for payment of cost was over. According to him, since the payment of cost was defaulted, the petition for re-opening the evidence was also dismissed.

4. The copy of the petition filed under Section 311 of the Code of Criminal Procedure, 1973 (For short, ‘Cr.P.C’) is incorporated with the original petition as Ext.P2. The petition was seen filed by the complainant in S.T No.2431/2016. It is stated therein that the complainant and her two daughters were equally entitled for the amount covered by the disputed cheque. According to her, she has been entrusted by her two daughters to present the cheque for encashment and to file a complaint, in case it was dishonored for insufficiency of funds. It is further stated that in view of the dictum rendered by this Court recently in Sunil v. State of Kerala [2020 (4) KLT 859], the daughters of the petitioner are also entitled for the amount covered by the cheque. Therefore, it is necessary to examine them also in the prosecution so as to have a proper adjudication of the prosecution. According to the petitioner, she has filed the petitioner under Section 311 Cr.P.C in that context, seeking to re-open the evidence for the purpose of examination of her daughters also in the prosecution on hand. On a reading of the impugned order, this Court finds that the court below has considered the averments of the petitioners and has also gone through the dictum in Sunil supra while dismissing the petition.

5. The petition under Section 311 Cr.P.C was filed when the case was posted for hearing on 12.10.2020 after closure of the evidence in the prosecution. The decision referred to was rendered on 03.07.2020. The court below has allowed the petition on being convinced that the additional evidence proposed to be brought on record by examining the daughters of the petitioner are relevant for rendering a proper judgment in the case. Having been convinced that the evidence proposed to be adduced is essential to arrive at a just decision of the case, that the petition was allowed by the court. A cost of Rs.3,000/- was also directed to be paid by the accused and a time limit was also fixed for the payment to be made.

6. Section 311 Cr.P.C reads;

“311. 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 reexamine any such person if his evidence appears to it to be essential to the just decision of the case.”

The provision starts with the words ‘Any Court may, at any stage of any inquiry, trial or other proceedings under this Code’. Therefore, the power is meant to be exercised by all courts. Discretion is conferred by the provision on all courts to exercise the power to 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, at any stage of any inquiry, trial or other proceeding under the Code. The only thing insisted by the provision was that the court must be convinced on such an petition being filed by a party before it that the evidence proposed to be adduced is very much essential for arriving at a just decision in the prosecution case on its file. Therefore, a party applying for summoning a material witness or examining a witness already examined with a view to bring on record, some additional evidence shall convince the court that the witness sought to be summoned or the evidence proposed to be adduced additionally is very much relevant to arrive at a just decision in the prosecution or else that the witness summoned or additional evidence proposed to be adduced by recalling the witness or by summoning the witness already examined is inevitable in it’s process to pronounce a just decision in the case pending consideration by it.

7. A reading of Section 311 Cr.P.C convinces that any person related to the case is entitled to apply to a court of law for summoning, examining a witness or recalling a witness already examined and re-examine him at any stage of any inquiry, trial or other proceedings under the Code. The provision confers a duty on the party to establish that the witness already examined and proposed to be recalled and re-examined or a witness proposed to be examined afresh, have some materials to contribute to the evidence already on hand so as to drive the court to arrive at a just decision. Therefore, the provision is incorporated in the Code, with a view to help the court in arriving at a just decision in the case on its hand. Prior to allowing an petition filed under Section 311 Cr.P.C, the court which seized of it has to be convinced about the relevancy, admissibility and ultimately the inevitability of the evidence proposed to be adduced for pronouncing a judgment, justified in all respects.

8. The point of paramount importance to guide the court in the matter of allowing an petition under Section 311 Cr.P.C is the impact, the additional evidence would have in the decision making process of the court. Therefore, when the court is convinced of the relevancy and inevitability of the proposed evidence to pronounce a just decision in the case, it must allow the petition.

9. In the case on hand, true that the complaint was filed to launch the prosecution in the year 2016 and that has been taken on file by the court in the very same year. The petition under Section 311 Cr.P.C was found filed in the year 2020. At the relevant time when the petition was filed, the case was posted for the parties to advance their arguments. The position of law was only settled then that when apart from the complainant, other persons were also entitled for the amount covered by the cheque got bounced and formed the basis for the prosecution, all others entitled for the amount under the cheque must also be examined in the prosecution. In view of the dictum that was rendered at the relevant point of time, the petitioner finds it appropriate to examine the daughters of the complainant, who are also entitled for the amount covered by the cheque. Since this Court has settled the law on the point by the dictum in Sunil supra, and the factual matrix of the case on hand is identical to the one covered by the dictum, the evidence sought to be adduced by examining some additional witnesses is inevitable in the process of arriving at a just decision on it’s file. The said evidence was also relevant for the complainant to win his case. Thus, the complainant has approached the court below by filing an petition under Section 311 Cr.P.C as Ext.P2 seeking to examine her daughters as well in the prosecution on hand. Having read the averments in the petition and the decision cited, the court below found it relevant to have the oral evidence of the daughters of the complainant also on record for facilitating pronouncement of a just decision in the matter. Accordingly, the petition was allowed.

10. The court has not observed while passing the impugned order that the petition was filed beyond the time permitted by Section 311 Cr.P.C. It was also not expressed in the impugned order that petitioner has no locus standi for filing it or that the petition is not maintainable for any other reasons.

11. In such a context, the court is not empowered, or in other words, not justified in directing the party approached it to pay costs evenafter exercising it’s discretion to allow the petition under Section 311 Cr.P.C. Therefore, the court below is perfectly justified in allowing the petition, but, highly erred and unjustified in imposing cost of Rs.3,000/- to be paid to the accused.

12. The decision in Sunil supra was rendered much later to the launching of the prosecution but, during it’s pendency. Therefore, the decision will have every impact on the judgment to be passed in the prosecution on hand. Having due regard to that aspect, the petition was allo

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wed but a cost of Rs.3,000/- was directed to be paid to the accused as a condition precedent for exercising the right under Section 311 Cr.P.C. The court below has also dismissed the petition for the reason that the costs directed was not paid within the time limit. The court below is highly unjustified in dismissing the petition seeking to recall the witness, for the reason that the cost directed was not paid. The imposition of cost itself, in the view of this Court is improper and unjust. In the above circumstances, O.P(Crl.) is allowed and direction in the impugned order to pay cost of Rs.3,000/- to the accused as a condition precedent for recalling and re-examining a witness is set aside. Order passed consequently dismissing the petition filed under Section 311 Cr.P.C, for nonpayment of cost within a time period is also set aside. The court below shall recall the daughters of the complainant, for examination, permit the petitioners to examines them and record their evidence within a period of two weeks from the date of receipt of a certified copy of this judgment therein.
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