IN THE HIGH COURT OF KARNATAKA AT BANGALORE B E F O R E THE HON BLE MR. JUSTICE A.N. VENUGOPALA GOWDA CRIMINAL PETITION NO.

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1 1 IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 19 th DAY OF OCTOBER, 2012 B E F O R E THE HON BLE MR. JUSTICE A.N. VENUGOPALA GOWDA CRIMINAL PETITION NO.6083/2012 BETWEEN: Sohil Ahamed, S/o. Sanaulla, Aged about 38 years, Managing Partner, M/s. Sona Distributors, Usha Complex, D.T. Road, Shimoga (By Sri R. Bhadrinath for M/s. Southern Law Associates, Advs.)... PETITIONER AND: R. Ramachandra, S/o. Rathankara Shet, Aged about 43 years, Residing at Amulaya, 4 th Cross, Achutha Rao Layout, Shimoga RESPONDENT This Crl.P. is filed under S.482 of Cr.P.C. praying to set aside the order dated in C.C.No.1414/2009 passed by the II Addl. Civil Judge and JMFC, Shimoga on I.A. as found at Annexure A.

2 2 This Crl.P. coming on for admission this day, the Court made the following: ORDER This criminal petition is directed against an order dated passed by the learned JMFC, Shimoga, in C.C.No.1414/2009, by which, an application filed by the accused under Ss.204 and 244 Cr.P.C., seeking deletion/discarding of the evidence of Sri Mahaveer - PW.2, on the ground that his name was not shown in the list of witnesses and permission of the Court for his examination was not obtained. 2. In order to appreciate the controversy involved in the matter, brief facts of the case may be enumerated: The petitioner is being prosecuted for the offence under S.138 of the Negotiable Instruments Act ( the Act for short). A private complaint under S.200 Cr.P.C., was filed by the respondent. His sworn statement was recorded and after noticing that, he has no more witnesses at that

3 3 stage, by an order dated , the learned Magistrate ordered for registration of a case for the offence punishable under S.138 of the Act. Summons having been issued, accused appeared and was enlarged on bail. Charge was denied by the accused. During the course of trial, the complainant completed the evidence i.e., his own examination, cross-examination and re-examination. On , the case was adjourned to for further evidence of the complainant. On , one Mahaveer was examined in chief and the case was adjourned for cross-examination. On the adjourned date, an application was filed by the accused under Ss.204 and 244 Cr.P.C., seeking deletion / striking evidence of PW.2. Learned Trial Judge, finding that the application has been filed on technical ground and since prejudice if any caused to the accused was not shown, held that it is unnecessary to expunge evidence of PW.2. Consequently, the application was rejected. Said order has been assailed in this petition.

4 4 3. Appearing for the petitioner, Sri R.Bhadrinath, learned counsel, contended that the Trial Court has committed illegality in dismissing the application. He submitted that the Trial Court has failed to take into consideration the scope of Ss.204, 231, 242, 246 and 254 Cr.P.C. and hence, the impugned order is perverse and illegal. By relying upon the decision in the case of FAKIRAPPA VS. SHIDDALINGAPPA, 2002 (1) KCCR 53, he contended that, S.204(2) Cr.P.C. being mandatory, there being non-compliance, impugned order being illegal, interference is warranted. 4. Perused the record. The questions which arises for consideration are: (i) Whether the complainant can file a supplementary list of witnesses and examine them? (ii) Whether the Trial Court has permitted the examination of PW-2 in exercise of the power under S.311 Cr.P.C.?

5 5 5. Prosecution was launched by the respondent under S.138 of the Act. Complaint contains the list of two witnesses. Complainant completed his evidence. Case which was posted on , was adjourned to for further evidence of the complainant. In the presence of the accused, Mr. Mahaveer, who was not cited as a witness in the complaint was examined as PW.2 and the case was adjourned for his cross-examination. The accused, on the adjourned date, filed application under Ss.204 and 244 Cr.P.C. seeking to delete / discard the evidence of PW Learned Trial Judge by noticing that the case is one under S.138 of the Act and needs to be tried by adopting summary procedure and as per the request of the accused, the case was converted into a warrant trial and therefore, sufficient opportunity should be given to both the parties to lead their evidence in detail, found the application to be untenable and passed an order of rejection.

6 6 7. In the case of TIPPANNA MALLAPPA JAKKANNAVAR AND ANOTHER VS. M/S RAJALAXMI TRADERS, ILR 2000 KAR 3881, it has been held that, even if there is no list of witnesses filed by the complainant, it only means, there is no witness to examine on his behalf and if he makes an application with the list of witnesses showing sufficient cause for non-filing of the list at the time of issue of notice, a Magistrate in his discretion may allow it. However, in the case of FAKIRAPPA (supra), the decision rendered in the case of T.K.JAKKANNA (supra) was held as rendered per incurium. In view of the divergent views taken by the learned Single Judges, in the two decisions, noticed supra, reference having been made to the Division Bench in the case of SRI YAMANAPPA SANGAPPA HULAGERI AND OTHERS VS. KALLAPPA SALABAPPA GANGANAGOUDAR, ILR 2003 KAR 4875, it was held as follows: 3. We have already dealt with the intended or possible prejudice aspect to the accused which is the genesis for making it compulsory to disclose the list of witnesses. Normally, where there is compliance with the provisions of

7 7 Section 204-2, the accused will received the copy of the complaint along with the summons or warrant and therefore be fully posted of the case made out and the witnesses who are going to depose in favour of the prosecution. The short question that we need to examine is as to whether any prejudice is caused to the accused at this point of time if the list of witnesses is not disclosed and in our considered view, the answer to that question is in the negative for the simple reason that process only enforces the presence of the accused before the Court and the accused still has an adequate opportunity of dealing with the case because the complainant s evidence is yet to be led and, well before that stage the list of witnesses is bound to be disclosed as soon as the error comes to the notice of the Court. Consequently, in our considered view there is no justification for the plea that the non-filing of the list of witnesses will render the proceeding ab initio void or that this infirmity would ipso facto justify an order for quashing of the proceedings. We accept the position that the error is rectifiable as is essentially the view that has been enunciated in the majority of decisions. (emphasis supplied by me) 8. In the case of SAYEEDA FARHANA SHAMIM Vs. STATE OF BIHAR AND ANOTHER, (2008) 8 SCC 218, the question considered by the Apex Court was, whether a supplementary list of witnesses can be furnished by the

8 8 complainant and the Magistrate can summon those witnesses to be examined? While answering the said question in the affirmative, it has been held as follows: 9....The question is whatever witnesses who have been examined under S.244 CrPC, whether the Magistrate cannot entertain any further list of witnesses to be examined by the complainant to substantiate his allegation in the complaint. It is true that under Section 244 CrPC if the charge is framed, then the prosecution has to examine the evidence produced by it in support of its case. After that the accused will have the right to crossexamine and the matter will proceed to be decided under Section 246. But before the matter is decided and during the pendency of the trial can the Magistrate entertain any petition filed by the prosecution for examining additional evidence in support of its case. xxxx xxxx xxxx 19. In view of the consensus of the opinion which has emerged from various decisions of the High Courts, it appears that the power of the Magistrate should not be fettered either under Section 244 or under sub-section (6) of Section 246 CrPC and full latitude should be given to the Magistrate to exercise the discretion to entertain a supplementary list. But as we have already added a word of caution that while accepting the

9 9 supplementary list, the Magistrate shall exercise his discretion judiciously for the advancement of the cause of justice and not to give a handle to the complainant to harass the accused. (emphasis supplied by me) 9. In the case of RAJENDRA PRASAD VS. NARCOTIC CELL, (1999) 6 SCC 110, Apex Court has observed that, no party to a trial can be denied an opportunity to correct error if any committed and if proper evidence was not adduced or the relevant material was not brought on record due to any inadvertence, the Court should be magnanimous in permitting such a mistake to be rectified. 10. In the case of U.T. of Dadra & Nagar Haveli and Another Vs. Fatehsinh Mohansinh Chauhan, (2006) 7 SCC 529, Apex Court has held as follows: While leading evidence the prosecution may not be in a position to anticipate or foresee the nature of defence which may be taken by the accused and evidence which he may lead to substantiate the same. Therefore, it is neither expected to lead negative evidence nor is it possible for it to lead such evidence so as to demolish the plea which may possibly be taken by the accused in his defence. This being

10 10 the normal situation, an application moved by the prosecution for summoning a witness under Section 311 CrPC, after the defence evidence has been recorded, should not be branded as an attempt by the prosecution to fill in a lacuna. 11. Keeping in view the ratio of law in the decisions, noticed supra, the factor which should govern the Court in exercise of the power under S.311 Cr.P.C. should be, whether any material evidence is essential for the just decision of the case. The provision made under S.311 Cr.P.C. would indicate the wide range of power conferred on the Court to render just decision. 12. In the instant case, learned Trial Judge has permitted the examination of Mr.Mahaveer as PW.2, in the exercise of power under S.311 Cr.P.C. The same becomes evident from the reasons assigned in the impugned order. 13. The nature and extent of power vested in the Court under S.311 Cr.P.C. was the subject matter of consideration by the Apex Court, in the case of HANUMAN RAM VS. STATE OF RAJASTHAN, (2008) 15 SCC 652.

11 11 While holding that, the object underlying S.311 Cr.P.C. is to prevent failure of justice on account of a mistake of either party to bring on record valuable evidence or leaving an ambiguity in the statements of the witnesses, it has been observed as follows: This is a supplementary provision enabling, and in certain circumstances imposing on the court the duty of examining a material witness who would not be otherwise brought before it. It is couched in the widest possible terms and calls for no limitation, either with regard to the stage at which the powers of the court should be exercised, or with regard to the manner in which it should be exercised. It is not only the prerogative but also the plain duty of a court to examine such of those witnesses as it considers absolutely necessary for doing justice between the State and the subject. There is a duty cast upon the court to arrive at the truth by all lawful means and one of such means is the examination of witnesses of its own accord when for certain obvious reasons either party is not prepared to call witnesses who are known to be in a position to speak important relevant facts. xxxx xxxx xxxx 27. 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 the valuable evidence on record or leaving ambiguity in the statements of the witnesses examined from either side. The

12 12 determinative factor is whether it is essential to the just decision of the case. The section is not limited only for the benefit of the accused, and it will not be an improper exercise of the powers of the court to summon a witness under the section merely because the evidence supports the case of the prosecution and not that of the accused. The section is a general section which applies to all proceedings, enquiries and trials under the Code and empowers the Magistrate to issue summons to any witness at any stage of such proceedings, trial or enquiry. In Section 311 the significant expression that occurs is at any stage of inquiry or trial or other proceeding under this Code. It is, however, to be borne in mind that whereas the section confers a very wide power on the court on summoning witnesses, the discretion conferred is to be exercised judiciously, as the wider the power the greater is the necessity for application of judicial mind. (emphasis supplied by me) 14. In the case of MOHANLAL SHAMJI SONI Vs. UNION OF INDIA, 1991 SUPP(1)SCC 271, the extent and scope of power of the Court under S.311 Cr.P.C. (S.540 as contained in the old code of 1988) was examined and it has been held by the Apex Court as follows: 27. The principle of law that emerges from the views expressed by this Court in the above decisions is that the criminal court has ample power to summon any person as a witness or recall and re-

13 13 examine any such person even if the evidence on both sides is closed and the jurisdiction of the court must obviously be dictated by exigency of the situation, and fair play and good sense appear to be the only safe guides and that only the requirements of justice command and examination of any person which would depend on the facts and circumstances of each case. 15. In the case of Maria Margarida Sequeira Fernandes Vs. Erasmo Jack de Sequeira, (2012) 5 SCC 370, with regard to the solemn duty in the matter of discovery of truth being essential purpose of any trial or enquiry, it has been held by the Apex Court as follows: 35. What people expect is that the court should discharge its obligation to find out where in fact the truth lies. Right from inception of the judicial system it has been accepted that discovery, vindication and establishment of truth are the main purposes underlying the existence of the court of justice. Keeping in view the well settled principles of law, noticed supra, there is no improper exercise of jurisdiction in the matter by the learned Trial Judge in permitting the complainant to examine a witness. Even in this petition, the accused / petitioner has not shown any prejudice having been caused to him on account of the examination

14 14 of PW-2. In the circumstances, the rejection of the application filed by the accused, noticed supra, is neither perverse nor illegal. The petition is devoid of merit. However, it is open to the accused to make a motion before the Trial Court to recall and further cross-examine PW-1, in view of the evidence adduced by the examination of PW-2. Needless to observe that, the accused is entitled as a matter of right to cross-examine PW-2 and lead defence evidence. Subject to the above, the criminal petition stands dismissed. Sd/- JUDGE Ksj/- sac*