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Judgment
The State has filed this petition assailing Annexure A2 order passed by the Court of the Special Additional Chief Judicial Magistrate, Thrissur (‘Trial Court’, for brevity), in C.C No. 81/2014, rejecting an application filed by the Assistant Public Prosecutor (APP) under Section 311 of the Code of the Criminal Procedure (Cr.P.C).
It is the petitioner’s case that, the respondents 1 to 8 are the accused in the above case for allegedly committing the offences punishable under Sections 120B, 406, 420, 465, 468 and 471 read with Section 34 of the Indian Penal Code and Sections 3, 4, 5 and 6 of the Prize Chits and Money Circulation Scheme (Banning) ACt, 1978.
Though the case was posted for trial and the summons was issued to CW8 (Investigating Officer), he did not appear before the Trial Court. Consequently, the Trial Court closed the prosecution evidence and proceeded with the questioning of the accused persons. Though the APP filed Annexure A1 application under Section 311 Cr.P.C., by the impugned Annexure A2 order, the Trial Court dismissed the application on the finding that the examination of the Investigating Officer was not essential for the just decision of the case. The impugned order is ex-facie erroneous and wrong. Hence, this petition.
I have heard the learned Public Prosecutor and the learned counsel appearing for the respondents.
A reading of the impugned order substantiates that, though the summons and the warrant were issued to CW8, he did not appear before the Trial Court. After 22 posting dates, the Trial Court came to a conclusion that the examination of the said witness is not necessary. Accordingly, the impugned order was passed.
It is an undisputed fact that the CW8 was the Investigating Officer, who is a material witness for the proper determination of the case. It is true that there was some latches on the part of CW8 in appearing before the Trial Court pursuant to the summons and warrants issued against him. Nonetheless, before the closure of the evidence, the APP had filed Annexure A1 application under Section 311 of the Cr.P.C to reopen the evidence and examine CW8.
In the above context, it is profitable to refer to Section 311 of Cr.P.C, which reads as follows:
“ S. 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 re-examine any such person if his evidence appears to it to be essential to the just decision of the case.”
This Court in State of Kerala v. Sunil N.S. @ Pulsar Suni and Others (2022 (1) KHC 480) has succinctly laid down the principles to be followed while considering an application under Section 311 of Cr.P.C, as follows:
“The legal position as regards Section 311 of Cr.P.C is well settled. A reading of Section 311 of Cr.P.C makes it clear that any Court can summon any person as a witness or to recall and re examine any person already examined at any stage. The exercise of the said power is conditioned by the requirement that such exercise must be essential to just decision of the case. The section is not intended only for the benefit of the accused. It may equally benefit the prosecution. It is trite that wider the power, greater is the responsibility of the Court which exercise it. Since the power conferred u/s 311 is wide, its exercise has to be done by the Court with caution and circumspection. The existence of a valid and strong reason to meet the ends of justice is sine qua non to invoke the power. The power shall not be resorted to fill up the lacuna left by the prosecution or by the defence, or to the disadvantage of the accused or to cause serious prejudice to the defence of the accused or to give an unfair advantage to the opposite party. Nor could the power under the provision be exercised if the Court is of the view that the application has been filed as an abuse of process of Court. It is for the Court to consider all the circumstances and decide whether prayer to summon or recall a witness is genuine. No straitjacket formula can be prescribed. This is the sum and substance of the dictum laid down in the decisions cited by both sides and stated in the previous paragraph.”
Taking into consideration the fact that CW8 was the Investigating Officer, who is a material witness, and the reasons stated in this petition, and on taking a lenient view in the matter, I am of the view that the impugned order is erroneous and wrong and is liable to be set aside subject to the condition that CW8 appears before the Trial Court on 12.10.2026 and the Trial Court disposes of the case within a time frame.
In the above circumstances, I allow this petition, by setting aside Annexure A2 order and allowing Annexure A1 application subject to the condition that CW8 shall appear before the Trial Court on 12.10.2026. On the said day, the Trial Court shall decide the day on which the CW8’s evidence can be recorded. Needless to mention that, the respondents are permitted to cross-examine CW8. As the case is of the year 2014, I direct the Trial Court to consider and dispose of the case, in accordance with the law and as expeditiously as possible, at any rate, within outer time limit of three months from the date CW8 is examined.