The State of Andhra Pradesh vs Bhyravarapu Sri Krishna

R. Kantha Rao, J.—Heard Sri P. Kesava Rao, Standing counsel for CBI and Sri P. Kasi Nageswara Rao, learned counsel appearing for the respondent. The respondent/accused is facing trial before the I Additional Special Judge for CBI Cases, Visakhapatnam for the offences under Sections 7 and 13(2) read with Section 13(1) of the Prevention of Corruption Act, 1988. The case was registered basing on the report of P.W. 1, a cell phone shop owner alleging that the respondent demanded bribe of Rs. 5,000/- for not conducing raid on his cell phone shop. According to the prosecution, after registering the case in a trap laid by the CBI, the respondent accepted an amount of Rs. 3,000/- from PW 1.

In the course of trial, when P.W. 1 was put to cross examination, the counsel for the respondent/accused confronted him Ex. D1, receipt for a sum of Rs. 3,000/- which is supposed to be towards the cost of cell phone. In response thereto, P.W. 1 admitted that Ex. D. 1 receipt was issued by him. P.W. 1 was treated hostile by the prosecution. The matter went on some adjournments and ultimately it was posted for arguments. At that stage, the prosecution filed Crl.M.P. No. 416 of 2012 in C.C. No. 19 of 2005 u/s 311 of the Code of Criminal Procedure to summon one Mr. Yash Pal Sharma, Nokia India Private Limited, Nokia Corporation, Gurgaon, Haryana, India to establish the fact that the cell phone model No. Nokia 6020 was not introduced by the company at all on the relevant date. The said petition was opposed by the respondent/accused and ultimately, the learned First Additional Special Judge for CBI Cases dismissed the said petition by his order dated 19.11.2012. While dismissing the petition, the learned Additional Special Judge took the view that the witness proposed to be examined by the prosecution is not the author of Ex. D. 1, receipt, the petition is belated and the prosecution shall not be permitted to disprove the defence adduced by the accused.

Now the point for determination in this petition is whether the order passed by the learned Additional Special Judge can be sustained?

Section 311 of the Code of Criminal Procedure vests the Court with wide power to summon any person at any stage of the enquiry, trial or other proceedings, as a witness, and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential for just decision of the case. Therefore, the idea underlying u/s 311 of Cr.P.C. is to enable the Court to arrive at an appropriate and just decision, it can summon any witness even without any application being made for the said purpose at any stage of the enquiry, trial or proceeding. The requirement of the just decision does not confine to safe guard the interest of the accused but would equally essential to enable the prosecution to unearth the truth.

In the instant case, the main contention of the prosecution is that the defence put-forth by the respondent/accused namely that the amount received by the accused was towards the repayment of cost of the defective cell phone is false which was supported by P.W. 1, a prosecution witness, who is no other than the decoy and that the basic version of the defence is that on the crucial date the model of the cell phone which was allegedly purchased by the accused was not at all introduced and thus the theory that the amount of Rs. 3,000/- was received towards the repayment of cost of defective cell phone was introduced by the accused for the purpose of coming out of the trap case filed against him.

Under these circumstances, the view taken by the learned Additional Special Judge for CBI Cases that the prosecution is not entitled to establish that Nokia 6020 cell phone was not at all in existence on the crucial date is without any basis and in my considered view, the learned Additional Special Judge did not exercise the power vested in him u/s 311 of Cr.P.C. in a proper way. On account of the improper decision rendered by the trial Court, this Court can interfere with the order passed by the trial Court in exercise of powers u/s 482 of Cr.P.C. The reason being the paramount consideration for the trial court ought to be to arrive at the truth irrespective of the stage of the case and to do justice to the case. Consequently, the order dated 19.11.2012 in Crl.M.P. No. 416 of 2012 in C.C. No. 19 of 2005 passed by the learned I Additional Special Judge for CBI Cases, Visakhapatnam declining to summon the witness proposed to be examined by the prosecution is set aside. The learned Additional Special Judge is directed to summon Mr. Yash Pal Sharma, Nokia India Private Limited, Nokia Corporation, Gurgaon, Haryana, India of to be examined on behalf of the prosecution as witness and the criminal petition is allowed.