CRLRC/2090/2009 of B. Ranganayakulu Vs The State of Andhra Pradesh on 31 December 2009

Order:

This revision is directed against the orders dated 24.11.2009 passedin Crl.M.P. No. 412 of 2009 in S.C. No. 178 of 2009 by the learned SessionsJudge, Anantapur, allowing the petition filed by the petitioner herein andothers and issuing summons to the then Mandal Executive Magistrate SriThirupal Setty to examine him as a defence witness.

The brief facts of the case are as follows. The petitioner herein alongwith others filed an application under Section 311 Cr.P.C stating that Sri JohnManohar, the then Inspector of Police, II Town Police Station, Anantapur laidinformation before the Mandal Executive Magistrate, Anantapur, on24.01.2005 requesting him to promulgate orders under Section 144 Cr.P.C tocontrol law and order situation, resulted consequent to the murder of ParitalaRavindra at about 3.00 PM on the same day by unknown offenders in thepremises of Telugu Desam Party Office, Anantapur. Basing on the saidinformation, the Mandal Executive Magistrate, Anantapur promulgated ordersunder Section 144 Cr.P.C. on 24.01.2005. The further case of the petitioneris that the FIR was registered in the murder case of Paritala Ravindra at about 6.00 PM or 10.00 PM by the Inspector of Police on the basis of thereport given by Sri Kondanna (PW.2) and that the Inspector of Police couldnot have laid information before the Mandal Executive Magistrate, Anantapurwithout registering a case in connection with the murder and in the abovecircumstances summoning of Mandal Executive Magistrate, Anantapur, SriThirupal Setty as a court witness is essential to ascertain the time ofpromulgating orders under Section 144 Cr.P.C.

On behalf of the State, counter was filed. The only contention of theState was that the witness should be examined as a defence witness and notas court witness.

The lower Court framed only one point as to whether the MandalExecutive Magistrate can be summoned to be examined as a Court witness?

The learned Sessions Judge allowed the petition and ordered to issuesummons to the then Mandal Executive Magistrate Sri Thirupal Setty to beexamined as a defence witness. Challenging the same, this revision hasbeen filed.

Learned counsel for the petitioner submitted that the Court has widepowers to examine any witness as a court witness. It is further submitted thatthe very purpose of summoning the then Mandal Executive Magistrate is toelicit truth from him and if he is examined as a defence witness, the petitionermay not have any opportunity to cross-examine the said witness in detail andthereby the petitioner and other accused may loose their valuable right ofcross-examining the said witness. In support of his contention, he relied on the decisions reported in S.R.S. Yadav v. State of M.P.[[1]], Balaprasanna v.

State rep. by its Inspector of Police[[2]], Nira @ Niranjan Jena v. State of Orissa[[3]], Sunil Kumar Sabharwal v. Mrs. Neelam Sabharwal andothers[[4]], Sumer Chand @ Sumer Nath v. Sandhuran Rani andanother[[5]], and Mukhtar Ali v. Judge, Family Court, Allahabad andanother[[6]].

Learned Special Public Prosecutor for CBI submits that now the caseis at the stage of examining the accused under Section 313 Cr.P.C. andtherefore the petitioner and other accused have an opportunity to adduce theevidence and that it is on their petition the then Mandal Executive Magistrateis being summoned, and therefore, there is no irregularity or illegality in theorder passed by the learned Sessions Judge in treating the witness as adefence witness.

Section 311 Cr.P.C. is as follows.

S.311. Power to summon material witness, or examineperson present.- Any Court may, at any stage of any inquiry, trial orother proceeding under this Code, summon any person as a witness, orexamine any person in attendance, though not summoned as a witness,or recall and re-examine any person already examined; and the Courtshall summon and examine or recall and re-examine any such person ifhis evidence appears to it to be essential to the just decision of the case.

A reading of Section 311 Cr.P.C. makes it clear that the Court hasample power to summon any witness and examine him at any stage ofinquiry or trial. The only condition is that if the Court comes to a conclusionthat examination or re-examination of such witness appears to be essential tothe just decision of the case. It means the Court must come to a prima facieconclusion that the evidence of such witness is necessary.

In Nira @ Niranjan Jena v. State of Orissa (3 supra), relied on by thelearned counsel for the petitioner, the case was posted for judgment. In that case prosecution did not examine one material witness. Another witnessexamined by the prosecution did not support the case of the prosecution. The Court felt that had the said material witness been examined, the truth ofreal cause of the death of the deceased would have been unfolded. In suchcircumstances, it was held that summoning of a witness as a court witnesswould not amount to filling up lacuna and that the Court has powers tosummon such a witness. The order to summon the witness was challengedby the accused in that case mainly on the ground that the exercise of powerto summon the witness as a Court witness after conclusion of trial and afterhearing the matter and when the case is posted for judgment is notnecessary. A reading of the above referred judgment makes it clear that it isthe Court that came to a conclusion that the evidence of such witness isessential and therefore the Court exercising powers under Section 311Cr.P.C. summoned the witness.

In another case, relied on by the learned counsel for the petitioner inS.R.S. Yadav v. State of M.P.(1 supra), also the prosecution did notexamine two witnesses cited by the prosecution as listed witnesses. In suchcircumstances, the accused moved an application and prayed to examinethose witnesses as court witnesses and the petition was allowed. In thatcase the listed witnesses were sought to be summoned.

In another case relied on by the learned counsel for the petitioner in Balaprasanna v. State rep. by its Inspector of Police (2 supra) also alisted witness and who was no other than the maternal uncle and legalguardian of the deceased was not summoned by the prosecution. He wasalso said to be a witness for recovery of material objects and attestedconfession. In the above circumstances, on the application filed by the accused the said witness was summoned.

The facts in all the above referred cases reveal that the prosecutionfailed to examine the listed witnesses and that the Court suo motu or on theapplication filed by the accused summoned those witnesses. Here in thiscase, the then Mandal Executive Magistrate is not cited as listed witness. Now the case is at the stage of examination of the accused under Section313 Cr.P.C. Since the then Mandal Executive Magistrate is not a listedwitness in the charge sheet, we cannot find fault with the prosecution in notexamining the said witness. The Court suo motu did not come to aconclusion to summon the said witness. Now the petitioner/accused wants toexamine the then Mandal Executive Magistrate only for the purpose ofascertaining the time of promulgation of order under Section 144 Cr.P.C inAnanthapur Town and to elicit the fact whether the promulgation orders ofSection 144 Cr.P.C. was after registration of the murder case of ParitalaRavindra or before registering of such case. Since the petitioner and otheraccused have a right to adduce defence witnesses on their behalf after theirexamination under Section 313 Cr.P.C. and since they have filed theapplication to summon the then Mandal Executive Magistrate and since thelearned Sessions Judge has exercised his discretion and passed orders tosummon the said witness as a defence witness, I do not see any illegality orirregularity in the order passed by the learned Sessions Judge.

Now the only problem is whether the petitioner herein and otheraccused can cross-examine the said witness to elicit the facts or not.

Section 141 of the Indian Evidence Act, 1872 (for short ‘the Act’) dealswith leading questions. Section 142 of the Act envisages that leadingquestions can be put to a witness with the permission of the Court.

Similarly, a witness can be cross-examined by a party who called the said witness under Section 144 of the Act, which is as follows.

144. Evidence as to matters in writing.-Any witness may beasked, whilst under examination whether any contract, grant or otherdisposition of property, as to which he is giving evidence, was notcontained in a document and if he says that it was, or if he is about tomake any statement as to the contents of any document, which in theopinion of the Court, ought to be produced, the adverse party may objectto such evidence being given until such document is produced, or untilfacts have been proved which entitle the party who called the witness togive secondary evidence of it.

Thus, it is clear that the Court may in its discretion permit a party tocross-examine his own witness.

In the above circumstances, I am of the view that since there is noillegality or irregularity in the order passed by the learned Sessions Judge,the same cannot be interfered with. However, considering the nature of theevidence, the learned Sessions Judge may permit the petitioner herein to putleading questions and also if necessary may permit the petitioner to cross-examine the said witness under Section 144 of the Act.

Subject to the above observation, the Criminal Revision Case isdismissed.

Date: 31.12.2009Nsr

______________________

B. CHANDRA KUMAR, J.

Note:Communicate the order copyto the learned Sessions Judge, Anantapur, today itself.

[1]1997 CriLJ 3860

[2]2005 TLMAD 2022

[3] 2008 CriLJ 1315

[4] 1991 CriLJ 2056

[5] 1987 CriLJ 1396

[6] 1999 CriLJ 321