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Judgment
M. Venugopal, J.—The Petitioners/A-1 and A-2 have focussed the instant Criminal Revision Case as against the order dated 27.10.2015 in Crl.R.C. No. 4 of 2015 passed by the Learned Principal Sessions Judge, Karur in reversing the order passed by the learned Judicial Magistrate No. 1, Karur in Crl.M.P. No. 8640 of 2014 in C.C. No. 836 of 2007 dated 11.02.2015 in dismissing the petition.
The Learned Principal Sessions Judge, Karur, while passing the impugned order on 27.10.2015 in Crl.R.C. No. 4 of 2015 filed by the respondent/revision petitioner/complainant, at paragraph No. 7, had observed the following:
"This is a case u/s. 406 I.P.C. The specific case of the prosecution is that the accused had misappropriated the Provident Fund and Medical Fund deducted from the salary of the de facto complainant and all these can be proved only through documentary evidence."
and consequently, allowed the Criminal Revision Petition, by setting aside the order dated 11.02.2015, passed by the Learned Judicial Magistrate No. 1, Karur in Crl.M.P. No. 8640 of 2014 in C.C. No. 836 of 2007 and allowed the miscellaneous petition.
Earlier, the Learned Judicial Magistrate, No. 1, Karur in Crl.M.P. No. 8640 of 2014 in C.C. No. 836 of 2007 on 11.02.2015, filed by the respondent/petitioner/complainant, seeking permission to permit the defacto complainant, P.W.1 to be re-examined and to allow the documents filed along with the petition to be marked through him, had dismissed the petition by observing that '' a reading of Section 311 Cr.P.C. shows that it only permits the Court to recall the witnesses for the just decision of the case and not for filing additional documents and opined that filing of documents under Section 311 Cr.P.C. was not maintainable'' and ultimately dismissed the petition.
Being aggrieved against the order dated 27.10.2015 in Crl.R.C. No. 4 of 2015 passed by the Learned Principal Sessions Judge, Karur, the Revision Petitioners/A-1 and A-2 have projected the present Revision case before this Court primarily contending that the ingredients of Section 311 of Cr.P.C. does not contemplate the recall of witness for the purpose of marking new documents.
Advancing his arguments, the Learned counsel for the Revision Petitioners/A-1 and A-2 urges before this Court that the documents in question, which were sought to be marked through P.W.1, could not be marked and that Crl.M.P. No. 8640 of 2014 filed by the respondent/Police is only to protract the trial of the main case in C.C. No. 836 of 2007 on the file of the trial Court.
Yet another stand of the petitioners is that the intent of Section 311 Cr.P.C. is not to drag on the proceedings endlessly and in fact, the said section does not confer a right to prosecution to harass the Revision Petitioners/accused by filing petitions.
According to the Learned counsel for the Petitioners, the Learned Principal Sessions Judge, Karur, had failed to note that of marking of ''Additional Documents'' will amount to fresh trial and that the petition in Crl.M.P. No. 8640 of 2014 is clearly an abuse of process of Court.
Lastly, the Learned counsel for the Petitioners projects an argument that Crl.M.P. No. 8640 of 2014 filed by the respondent/Police was filed before the trial Court, after a lapse of 7 years, taking note of the fact that C.C. No. 836 is of the year 2007 and clearly, the intention of the prosecution is to protract the trial by allowing the Crl.M.P. No. 8640 of 2014 by the Learned Principal Sessions Judge, Karur, the petitioners are seriously prejudiced.
At this stage, this Court, while going through the contents of the petition in Crl.M.P. No. 8640 of 2014 in C.C. No. 836 of 2007 on the file of the trial Court (filed by the respondent/petitioner/complainant under Section 311 of Cr.P.C.) is of the considered opinion that the respondent/Police in paragraph No. 3 of the petition had categorically averred that few documents were not traceable by the defacto complainant, during the trial of the main case, as these documents were misplaced and the documents mentioned in the list of the documents were that of the defacto complainant and that the prosecution was also ready to file those documents before the Court and to make use of the scientific methods to establish its case.
The revision petitioners had filed a counter to Crl.M.P. No. 8640 of 2014 in C.C. No. 836 of 2007 stating that the main case C.C. No. 836 of 2007 was posted for arguments, after Section 311 Cr.P.C. statement of the accused was recorded and at that stage, the respondent/complainant had not relied upon some documents and now, wants to mark the same and such of those documents, which were originally may be allowed to be marked with the objections of the accused.
It cannot be gain-said that the object of Section 311 of Cr.P.C. is to do substantial justice not only from the point of view of the revision petitioners/accused and the respondent/prosecution, but also from the view point of an orderly society. As a matter of fact, a Court of Law examines the evidence under Section 311 of Cr.P.C. neither to assist the prosecution nor to help the accused. The basic fact is that it is for the Court of Law to think it necessary that in the given facts and circumstances of a particular case, power to examine a person present or otherwise can be permitted.
It is to be noted that the power under Section 311 of Cr.P.C. is a discretionary one, with a view to enjoin upon a Court of Law primarily to unearth/find out the truth and render a just decision in a given case. The best available evidence ought to be brought before a Court of Law to establish a fact or the points in issue. Even after both sides had closed their cases, it is open to a Court of Law/Magistrate to summon any person as a witness, if his evidence appears to him to be essential to the just decision of the case. In deed, a Court of Law can summon a witness under Section 311 Cr.P.C. at any stage of the trial. Such a witness is called as a prosecution witness, if summoned on the side of the prosecution and similarly defence witness if summoned on behalf of the prosecution and not as court witness. Once it is found that the evidence is essential for the just decision of the case, the witness can be recalled at any time before pronouncement of the judgment, the time factor would not come in the way, as per the decision of the Honourable Supreme Court in Raj Deo Sharma Vs. The State of Bihar, .
As far as the present case is concerned, the case in main C.C. No. 836 of 2007 relates to an offence under Section 406 of I.P.C. Even a material witness can be summoned during final arguments. However, it is improper to recall a witness after final arguments were heard. The power under Section 311 of Cr.P.C. is to be exercised by a competent Court of Law only in suitable cases, when the exigency of situation impelled the Court to proceed under the Section.
Be that as it may, in view of the fact that the respondent/petitioner/complainant had sought for permission of the trial Court to permit the defacto complainant/P.W.1 to be re-examined and to mark the documents mentioned in the list namely serial Nos. 1 to 19 (annexed along with the petition) and also this Court, on going through the impugned order of the Learned Principal Sessions Judge, dated 27.10.2015 in Crl.R.C. No. 4 of 2015 in allowing the said Criminal Revision Case by setting aside the order of the trial Court in Crl.M.P. No. 8640 of 2014 in C.C. No. 836 of 2007 dated 11.02.2015 is of the considered view that the said order does not suffer from any legal infirmities, material irregularities and patent illegalities in the eye of Law. Consequently, this Criminal Revision Case fails.
In the result, this Criminal Revision Case is dismissed. Resultantly, the order dated 27.10.2015 in Crl.R.C. No. 4 of 2015 passed by the Learned Principal Sessions Judge, Karur, in reversing the order dated 11.02.2015 in Crl.M.P. No. 8640 of 2014, in C.C. No. 836 of 2007, passed by the Learned Judicial Magistrate No. 1, Karur is affirmed by this Court, for the reasons assigned in this Criminal Revision Case. It is made clear that the dismissal of the present Criminal Revision Case will not preclude the petitioners/accused to take all factual and legal pleas before the trial court, at the time of marking of documents, of course, in the manner known to law and in accordance with law. Consequently, connected M.P.(MD). No. 1 of 2015 is also dismissed.