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Karthikeyan vs State Rep. By on 17 June, 2019

1

IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 17.06.2019
CORAM
THE HON’BLE MR.JUSTICE N.ANAND VENKATESH

Crl.O.P.No.15377 of 2019
and Crl.MP.No.7570 of 2019

1. Karthikeyan

2. Jayavel

3. Rani …Petitioner/Accused 1 to 3
-Vs-

State rep. by
Inspector of Police,
Kaveripattinam Police Station,
Krishnagiri District … Respondent/Complainant

Prayer: Criminal Original petition filed under Section 482 of Code of
Criminal Procedure, to setaside the order passed by the learned
Sessions Judge, Fast Track Mahila Court, Krishnagiri in Crl.MP No.147
of 2019 in SC No.80 of 2018 dated 22.05.2019.

For Petitioner : Mr.P.Ezhilnilavan
For Respondent : Mr.Mohammed Riyaz,
Additional Public Prosecutor

ORDER

This petition has been filed challenging the order passed

by the Court below allowing the application filed by the prosecution

under Section 311 of Cr.PC to recall witnesses PW1 to PW5 for further
http://www.judis.nic.in
2

examination.

2. The petitioners are facing trial before the Court below for

an offence under Section 498A and Section306 IPC. The prosecution had

examined PW1 to PW5 and all of them were cross examined by the

petitioners. At that point of time, the prosecution filed an application

under Section 311 of Cr.PC to recall PW1 to PW5 for further

examination. The reasons assigned in the petition to recall PW1 to

PW5 is that some important questions were not asked to those

witnesses and therefore, they have to be recalled and those questions

should be put to them and recalling those witnesses is required to

enable the Court to come to a just decision in the case. This petition

was allowed by the Court below and aggrieved by the same, this

Criminal Original Petition has been filed before this Court.

3. The learned counsel for the petitioner submitted that what is

now attempted to be done by the prosecution is to re-examine PW1 to

PW5 and thereby a de novo trial is sought to be conducted by the

prosecution. The learned counsel further submitted that the entire

exercise is done only to fill up the lacuna and the Court below without

considering the same has allowed the petition.
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4. The learned counsel for the petitioner further submitted

that the facts of this case is covered by the Judgment of this Court in

[Gayes Vs. The State rep. by its, Inspector of Police,

Kulasekaranpattinam Police Station, Thoothukudi District]

reported in 2018 2 Law Weekly (Crl) 721. The learned counsel

further developed his arguments by submitting that the Court below

was not sure with regard to the reasons assigned by it for allowing the

petition. On the one hand, the Court below has stated that there are

materials to alter the charges and add the offence under Section

304(B) of IPC. On the other hand, the Court has also stated that the

witnesses will have to be recalled in order to determine the truth and

in order to come to a just decision.

5. The learned counsel by pointing out to the finding of the

Court below submitted that there is no clarity in the reasoning that

was given by the Court below for allowing the petition.

6. Mr.Mohammed Riyaz, learned Additional Public Prosecutor

appearing on behalf of the respondents submitted that the Court

below has properly applied its mind and has given cogent reasons for
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4

allowing the recall petition and there are absolutely no grounds to

interfere with the same. The learned counsel further submitted that

the Criminal Court has ample powers to summon any person as a

witness or to recall and re-examine any such persons even if evidence

has been closed. The learned counsel further submitted that the scope

and object of the provision under Section 311 of Cr.PC is to enable the

Court to determine the truth and to render just decision in the case.

7. This Court has carefully considered the submissions made

on either side and also the materials available on record.

8. The Court below while allowing the application did not

given a clear finding on the reasons for which the application is being

allowed. The Court had at one portion of the order stated that there

are materials to alter the charges and add Sectionsection 304(b) of IPC as an

offence. In the other portion of the order, the Court below has held

that PW1 to PW5 have to be recalled for reexamination by the

prosecution in order to come to a just decision. The Court below in

order to come to such conclusion has relied upon the Judgment of the

Hon’ble Supreme Court and this Court.

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9. As rightly submitted by the learned counsel for the

petitioner, once a witness has been examined by the prosecution and

the said witness is also cross-examined, the prosecution cannot be

allowed to recall all the witnesses for re-examination on the ground

that certain important questions were not asked to the witnesses.

Useful reference can be made to the Judgement of this Court in

[Gayes Vs. The State rep. by its, Inspector of Police,

Kulasekaranpattinam Police Station, Thoothukudi District]

reported in 2018 2 Law Weekly (Crl) 721.

10. The above judgment makes it clear that the prosecution

should not be allowed to resort to filing petition under Section 311 of

Cr.PC to fill up the lacuna in a prosecution case, unless the facts and

circumstances of the case makes it apparent that non exercise of the

power by the Court will result in serious prejudice and miscarriage of

justice.

11. In this case, the Court below was swayed more by the

fact that the materials that were collected also makes out a charge

for an offence under Section 304(b) of IPC and therefore, the Court

below wanted to recall PW1 to PW5 for further examination by the
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6

prosecution. This reasoning given by the Court below will not stand

the test of law.

12. If the Court below wanted to alter the charges by adding

the offence under Section 304(b) IPC, the Court below ought to have

followed the procedure contemplated under Section 216 of Cr.PC.

However, the Court below did not alter the charges except for making

an observation to that effect and it has proceeded to recall PW1 to

PW5 for further examination by the prosecution. Therefore, there is

no clarity in the order passed by the Court below and the same

requires interference of this Court.

13. The procedure to be followed for alteration of charges by

adding the offence under Section 304 of IPC can be done only in

accordance with Section 216 of Cr.PC. Useful reference can be made

to the Judgment of this Court in [Jafferulla Vs.K.Rajendiran]

reported in 2019 1 Madras Weekly Notes Crl. (DCC) 54, wherein this

Court has discussed in detail the procedure to be followed under

Section 216 (2) SectionCr.PC for alteration of charges. The Court below can

follow the said procedure before it ventures to alter the charges.

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7

14. If ultimately, the Court below alters the charges in

exercise of its jurisdiction Under Section 216 of Cr.PC, the Court

below can always recall the witnesses by virtue of the powers granted

under Section 217 of Cr.PC. This should have been the proper

procedure to be followed by the Court below while dealing with the

petition and the Court below has mis-directed itself by following a

wrong procedure due to lack of clarity.

15. In view of the above, the order passed by the Court below

in Crl.MP No.147 of 2019 dated 22.05.2019 is hereby set aside. It is

left open to the Court below to proceed further with the alteration of

charges in accordance with the procedure indicated herein above and

for that purpose, the Court below is also entitled to recall the

witnesses after the alteration of charges under Section 217 of Cr.PC.

It goes without saying that the petitioners can always put forth their

contentions when the Court below proceeds to alter the charges.

16. In the result, this Criminal Original petition is allowed. It

is made clear that the Court below shall independently consider the

materials available before the Court without being influenced by any

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N.ANAND VENKATESH.,J
rka
of the findings given by the Court below at the time of disposing of

Crl. MP No.147 of 2019 or the findings given by this Court in this

petition. Consequently, the connected miscellaneous petition is

closed.

17.06.2019

Index : Yes
Internet: Yes
rka/msrm

To

1. The District Munsif Cum Judicial Magistrate, Mettupalayam.

2. The Public Prosecutor, High Court, Madras

Crl.O.P.No.15377 of 2019
and Crl.MP.No.7570 of 2019

http://www.judis.nic.in

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