THE STATE REPRESENTED BY THE DEPUTY SUPERINTENDENT OF POLICE versus TR N SEENIVASAGAN on 1 March 2021

1. Leave granted.

2. These appeals arise out of a judgment and order of a learnedSingle Judge of the High Court of Judicature at Madras dated 24 June2019.

3. The appellant is the State represented by the DeputySuperintendent of Police, Vigilance and Anti-Corruption, Chennai City–IV. On 13 July 2010, FIR No 14 of 2010 was registered against therespondent (Accused No 1) and another accused (who has since passedaway) under the Prevention of Corruption Act, 1988[1]. The respondentwas a Chief Engineer in the Tamil Nadu Generation and DistributionCompany Limited[2]. It is alleged that he demanded a bribe for revokingthe suspension of an employee. On 28 June 2011, the Chairman cumManaging Director of TANGEDCO accorded sanction to prosecute therespondent and the co-accused under the PC Act. On behalf of theappellant, it has been urged that this sanction was accorded by theChairman on behalf of the Board of TANGEDCO.

4. On the completion of the investigation, the investigating officerfiled a final report under Section 173(2) of the Code of Criminal Procedure1973[3] on 27 July 2011 against the respondent and the co-accused underSections 7, 12 and 13(2) read with Section 13(1)(d) of the PC Act.During the trial in CC No. 9 of 2011, the prosecution examined witnessesPW-1 to PW-12, and through them marked Exhibits P-1 to P-11 andMO-1 to MO-10.

5. Insofar as it is material for this matter, it is necessary to notethat PW-1, the Chairman of TANGEDCO, was examined in-Chief on 6June 2013. PW-1 was cross-examined by the respondent on 18 March2014, and was re-called on 17 July 2014 at the behest of the co-accusedfor further cross-examination. The examination in-Chief of PW-11, theDeputy Superintendent of Police, was recorded on 1 February 2017.Thereafter, he was cross-examined on 13 February 2017, and subsequently 1 “PC Act”

2 “TANGEDCO”

3 “CrPC”

A

B

C

D

E

F

G

H

Are-called and cross-examined again on 27 February 2017. The evidencefrom the prosecution’s side was closed on 31 October 2017, and thecase was posted for final arguments.

6. The arguments on behalf of the prosecution commenced on 7December 2017. The arguments of the defense commenced on 16BDecember 2017, and concluded on 16 February 2018. The case wasposted for the final submissions of the prosecution on 27 February 2018,and appears to have been adjourned on thirty-three occasions until 26October 2018. In the meantime, the presiding officer was transferred on25 June 2018, as a result of which the arguments could not be finallyconcluded. Even after 26 October 2018, the case was adjourned onCthirty-five occasions, following which it was posted on 11 March 2019for the prosecution to submit its written arguments.

7. However, on 11 February 2019, the prosecution filed CriminalMP Nos 224 and 225 of 2019 under Section 311 of CrPC for recallingPWs 1 and 11, to enable the appellant to mark as an exhibit in evidence,Dthe approval dated 26 June 2011 of the Board of TANGEDCO forsanctioning the prosecution of the respondent and the co-accused. Therespondent opposed these applications. The Trial Judge passed an orderdated 19 February 2019 by which the applications under Section 311were dismissed.E

8. The prosecution thereafter filed Criminal OP Nos 7694 and7816 of 2019 under Section 482 of CrPC before the High Courtchallenging this order. These have been dismissed by the High Court bythe impugned order dated 24 June 2019. After noting the earlier evidenceof PWs 1 and 11, the High Court held that the applications had been filedFby the prosecution belatedly. The appellant has, thus, travelled to thisCourt.

9. On 9 July 2020, this Court passed the following order, interalia, condoning the delay and recording the submissions urged on behalfof the appellant:G“1Delay condoned.

“1Delay condoned.

2Mr M Yogesh Kanna, appearing on behalf of the petitionersubmits that Annexure P-4 to the Special Leave Petition,which is the order of sanction dated 28 June 2011, has beenmarked as Exhibit P-1 in the trial. Referring to the contentsHof the order of sanction, learned counsel submits that there THE STATE REPRESENTED BY THE DSP v. TR N SEENIVASAGAN[DR. DHANANJAYA Y CHANDRACHUD, J.]

is a reference in the order to the fact that the appointingauthority is the Board and that the papers for grant ofsanction had been placed before the Board. Learned counselsubmitted that the prosecution only seeks to mark as an exhibitthe proceedings which took place before the Board.

3Issue notice, returnable in six weeks.

4Dasti, in addition, is permitted.

5In the meantime, for a period of eight weeks from today,there shall be a stay of the further proceedings in the pendingtrial, namely, CC No 9 of 2011, pending before the SpecialJudge, Special Court for the Cases under Prevention ofCorruption Act at Chennai.”

10. In pursuance of the order issuing notice, Mr Senthil Jagadeesan,learned counsel, has entered appearance on behalf of the respondentand has filed a counter-affidavit.

11. Mr M Yogesh Kanna, learned counsel appearing on behalf ofthe appellant, submits that the order of sanction dated 28 June 2011 hasalready been marked as Exhibit P-1 during the course of the trial.Essentially, the submission of the prosecution is that the purpose ofrecalling PWs 1 and 11 was to place on the record and mark in evidencea copy of the reference which was made to the Board of TANGEDCO,where the respondent was employed as a Chief Engineer. Learnedcounsel submits that having due regard to the ambit of Section 311, theapplications ought to have been allowed, particularly in view of the factthat the final arguments could not be concluded in view of the interveningtransfer of the judicial officer and the case is still pending. It was furthersubmitted that having regard to the nature and scope of the proceedingswhich arise out of the provisions of the PC Act, it would be appropriateand in the interests of justice if liberty is granted to the prosecution toplace the relevant document pertaining to the approval granted by theBoard of TANGEDCO on the record.

12. On the other hand, Mr Senthil Jagadeesan has drawn theattention of the Court to the depositions of PW-1 and PW-11. Advertingalso to the purported Board Minutes at Annexure P-2 (a photocopy ofwhich has been filed at Annexure R-2 of the counter-affidavit), it hasbeen submitted that the document, as a matter of fact, does not have thesignatures of the members of the Board. Moreover, it has been urged

A

BC

DE

F

GH

Athat PW-1, who is the Chairman of TANGEDCO, during the course ofhis deposition, submitted that he had granted sanction for the prosecutionof the respondent and the co-accused without reference to the Board,and that he was entitled to do so in accordance with the provisions of thePC Act.

B13. In our view, having due regard to the nature and ambit ofSection 311 of the CrPC, it was appropriate and proper that theapplications filed by the prosecution ought to have been allowed. Section311 provides that any Court may, at any stage of any inquiry, trial orother proceedings under the CrPC, summon any person as a witness, orexamine any person in attendance, though not summoned as a witness,Cor 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”.The true test, therefore, is whether it appears to the Court that the evidenceof such person who is sought to be recalled is essential to the just decisionDof the case.

14. In Manju Devi v State of Rajasthan[4], a two-Judge bench ofthis Court noted that an application under Section 311 could not be rejectedon the sole ground that the case had been pending for an inordinateamount of time (ten years there). Rather, it noted that “the length/durationEof a case cannot displace the basic requirement of ensuring the justdecision after taking all the necessary and material evidence on record.In other words, the age of a case, by itself, cannot be decisive of thematter when a prayer is made for examination of a material witness”.Speaking for the Court, Justice Dinesh Maheshwari expounded on theprinciples underlying Section 311 in the following terms:F

“10. It needs hardly any emphasis that the discretionary powerslike those under Section 311 CrPC are essentially intended to ensurethat every necessary and appropriate measure is taken by theCourt to keep the record straight and to clear any ambiguity insofaras the evidence is concerned as also to ensure that no prejudice isGcaused to anyone. The principles underlying Section 311 CrPCand amplitude of the powers of the court thereunder have beenexplained by this Court in several decisions [ Vide Mohanlal ShamjiSoni v. Union of India, 1991 Supp (1) SCC 271 : 1991 SCC (Cri)595; Zahira Habibulla H. Sheikh v. State of Gujarat, (2004) 4

THE STATE REPRESENTED BY THE DSP v. TR N SEENIVASAGAN[DR. DHANANJAYA Y CHANDRACHUD, J.]

SCC 158 : 2004 SCC (Cri) 999; Mina Lalita Baruwa v. State ofOrissa, (2013) 16 SCC 173 : (2014) 6 SCC (Cri) 218; RajaramPrasad Yadav v. State of Bihar, (2013) 14 SCC 461 : (2014) 4SCC (Cri) 256 and Natasha Singh v. CBI, (2013) 5 SCC 741 :(2013) 4 SCC (Cri) 828] . In Natasha Singh v. CBI [NatashaSingh v. CBI, (2013) 5 SCC 741 : (2013) 4 SCC (Cri) 828] ,though the application for examination of witnesses was filed bythe accused but, on the principles relating to the exercise of powersunder Section 311, this Court observed, inter alia, as under: (SCCpp. 746 & 748-49, paras 8 &15)

“8. Section 311 CrPC empowers the court to summon a materialwitness, or to examine a person present at “any stage” of “anyenquiry”, or “trial”, or “any other proceedings” under CrPC, or tosummon any person as a witness, or to recall and re-examine anyperson who has already been examined if his evidence appearsto it, to be essential to the arrival of a just decision of thecase. Undoubtedly, CrPC has conferred a very wide discretionarypower upon the court in this respect, but such a discretion is to beexercised judiciously and not arbitrarily. The power of the court inthis context is very wide, and in exercise of the same, it maysummon any person as a witness at any stage of the trial, or otherproceedings. The court is competent to exercise such power evensuo motu if no such application has been filed by either of theparties. However, the court must satisfy itself, that it was in factessential to examine such a witness, or to recall him for furtherexamination in order to arrive at a just decision of the case.

***

15. The scope and object of the provision is to enable the court todetermine the truth and to render a just decision after discoveringall relevant facts and obtaining proper proof of such facts, to arriveat a just decision of the case. Power must be exercised judiciouslyand not capriciously or arbitrarily, as any improper or capriciousexercise of such power may lead to undesirable results. Anapplication under Section 311 CrPC must not be allowed only tofill up a lacuna in the case of the prosecution, or of the defence, orto the disadvantage of the accused, or to cause serious prejudiceto the defence of the accused, or to give an unfair advantage tothe opposite party. Further, the additional evidence must not be AB

CD

E

F

G

H

Areceived as a disguise for retrial, or to change the nature of thecase against either of the parties. Such a power must be exercised,provided that the evidence that is likely to be tendered by a witness,is germane to the issue involved. An opportunity of rebuttalhowever, must be given to the other party. The power conferredunder Section 311 CrPC must therefore, be invoked by the courtBonly in order to meet the ends of justice, for strong and validreasons, and the same must be exercised with great caution andcircumspection. The very use of words such as “any court”, “atany stage”, or “or any enquiry, trial or other proceedings”, “anyperson” and “any such person” clearly spells out that the provisionsCof this section have been expressed in the widest possible terms,and do not limit the discretion of the court in any way. There isthus no escape if the fresh evidence to be obtained is essential tothe just decision of the case. The determinative factor shouldtherefore be, whether the summoning/recalling of the said witnessis in fact, essential to the just decision of the case.” (emphasis inDoriginal)”

15. In the present case, the prosecution has sought to produce acopy of the relevant document pertaining to the approval granted by theBoard of TANGEDCO on the record and to have it marked as an exhibitin the evidence, for which purpose PWs 1 and 11 were sought to beErecalled. In its applications, the prosecution noted that these witnesseswere required to mark the relevant document, which was crucial for thedecision of the case since the respondent had taken a defense that thisdocument had been signed by the Chairman of TANGEDCO withoutthe Board’s approval. In explaining the delay in filing the applications, Fthe prosecution noted that it was due to the transfer of Special PublicProsecutor who was conducting the case. The relevant parts of theprosecution’s application are reproduced below:

“It is submitted that the case was conducted by Additional LegalAdviser Tr.T.Panneerselvam and he was transferred as DeputyGDirector of Prosecution, Kancheepuram District and henceTr.Pandiarajan, ADLA, HQ, DVAC, Chennai is posted as SpecialPublic Prosecutor for conduction this case.

…

It is submitted that the Exhibit.Pl, the order of sanction itself showsHthat the order was issued by the Board. But the defence has taken a stand that the order was not issued by the Board and thesame was issued by the Chairman who was not competent personto accord the sanction.

It is submitted that at the time of filing the charge sheet theInvestigation Officer has obtained the Approval Order of the Boardand not submitted it before this Hon’ble Court.

It is submitted that in support of the contention of the prosecutionit is necessary to mark the documents pertaining to the Board ofTANGEDCO to satisfy this Hon’ble Court for just decision of thecase that the sanction was accorded in accordance with law andrules and regulations stated in the TANGEDCO.

…

It is submitted that recalling PW1 and PW11 for marking thedocuments pertaining to the Sanction cannot be termed as lacunaor to fill up the gap. But only to help this Hon’ble Court for arrivingjust decision of the case.”

16. Undoubtedly, we note that the respondent must have anopportunity to cross-examine these witnesses. Hence, we are notexpressing any view on the merits of the submissions which were urgedon behalf of the respondent by Mr Senthil Jagadeesan, in regard to thedepositions of PWs 1 and 11, since these will have to be evaluated bythe learned trial Judge. However, we are of the view that the rejectionof the applications for recall under Section 311 was not in order. Weaccordingly allow the appeals and set aside the impugned judgment andorder of the High Court dated 24 June 2019. The applications filed bythe prosecution for recall of PWs 1 and 11 shall accordingly stand allowed.The respondent would also be at liberty to cross-examine these witnesses.

17. Having regard to the pendency of the trial for a long period oftime, we order and direct that the trial be completed by 31 July 2021.

18. Pending application, if any, stands disposed of.

Divya Pandey

Appeals allowed.

A

B

C

D

E

F

G

H