IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 28TH JUNE 2011 / 7TH ASHADHA 1933 Crl.MC.No. 942 of 2011(E) ------------------------------------ [SC.NO.367/2010 OF III ADDITIONAL DISTRICT & SESSIONS COURT (CBI-1), ERNAKULAM] .................... PETITIONER: ------------------- INSPECTOR OF POLICE, C.B.I, S.C.B, COCHIN. BY ADV. SRI.P.CHANDRASEKHARA PILLAI, S.C, C.B.I. RESPONDENT: --------------------- ANILMON THOMAS, S/O.THOMAS KURIAN, NAIKALATH HOUSE, PULLANKUNNU, MALAMPUZHA P.O., PALAKKAD. BY ADVS. SRI.B.RAMAN PILLAI, SRI.R.ANIL, SRI.ANIL K.MOHAMMED, SRI.SUJESH MENON V.B, SRI.T.ANIL KUMAR. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 28/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL.M.C. NO.942/2011-E: APPENDIX PETITIONERS' ANNEXURES: ANNEXURE.I: COPY OF THE DEPOSITION OF PW-13 IN SC 367/10. ANNEXURE II: AFFIDAVIT DTD. 25/01/2011 SWORN BY PW-13. ANNEXURE III: COPY OF THE STATEMENT OF FACTS IN PW-13'S HANDWRITING. ANNEXURE IV: COMPLAINT GIVEN BY PW-13 AND HER HUSBAND TO THE CIRCLE INSPECTOR OF POLICE, CENTRAL POLICE STATION, ERNAKULAM. ANNEXURE V: COPY OF THE APPLICATION FILED U/S 311 BY PW-13 ON 25/01/2011. ANNEXURE VI: OBJECTION FILED BY THE PROSECUTION TO ANNEXURE-V. ANNEXURE VII: COPY OF THE APPLICATION FILED U/S. 311 BY THE ACCUSED ON 28/01/2011. ANNEXURE VIII: OBJECTION FILED BY PROSECUTION TO ANNEXURE VII. ANNEXURE IX: TRIAL COURT ORDER DTD. 10/02/2011 REJECTING APPLICATION FILED U/S. 311. ANNEXURE X: COPY OF THE WITNESS LIST DTD. 17/02/2011. ANNEXURE XI: COPY OF THE WITNESS LIST DTD. 07/03/2011. ANNEXURE XII: COPY OF THE WITNESS LIST DTD. 09/03/2011. ANNEXURE XIII: OBJECTION FILED BY THE PROSECUTION TO THE WITNESS LIST. ANNEXURE XIV: COPY OF THE ORDER OF THE HON'BLE IIIRD ADDITIONAL DISTRICT & SESSIONS COURT DTD. 11/03/2011 ALLOWING SUMMONING OF WITNESSES INCLUDING PW-12 & PW-13. RESPONDENTS' ANNEXURES: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. THOMAS P JOSEPH, J. ---------------------------------------- Crl.M.C.No.942 of 2011 --------------------------------------- Dated this 28th day of June, 2011 ORDER Annexure-XIV, order dated March 11, 2011 passed by the learned Third Additional Sessions Judge, Ernakulam in S.C.No.367 of 2010 permitting recall and further examination of PWs.12 and 13 at the stage of defence evidence is challenged by the Investigating Officer, the Inspector of Central Bureau of Investigation (for short, "the CBI”). 2. Respondent stands chargesheeted by the CBI for offences punishable under Secs.302, 377, 367, 363, 328, 325 and 201 of the Indian Penal Code. Examination of charge witness No.21 as PW13 was over by January 13, 2011. The Investigating Officer also was examined and prosecution evidence was closed on February 01, 2011. After hearing the parties under Sec.232 of the Code of Criminal Procedure (for short, "the Code”) respondent was called upon to enter on his defence under Sec.232 of the said Code. In the meantime on January 24, 2011 PW13 and her husband (CW28) had filed a complaint to the Central Police, Ernakulam alleging mental torture by the CBI to give evidence in Court as required by them. On January 25, Crl.M.C.No. 942 of 2011 -: 2 :- 2011, PW13 and her husband filed a writ petition in this Court seeking protection from (alleged) harassment by the CBI. PW13 also filed an application before learned Additional Sessions Judge supported by an affidavit requesting opportunity to give further evidence in the case. In the meantime, taking a clue from the petition filed by PW13, respondent filed an application before learned Additional Sessions Judge on January 28, 2011 requesting that PW.13 may be recalled for further cross examination. Learned Additional Sessions Judge disposed of the petitions filed by the respondent and PW13 as per Annexure-IX, order rejecting the request for recalling under Sec.311 of the Code but, observing that the said order is without prejudice to the right of respondent under Sec.233 of the Code to “examine any witness”. That order was not challenged by anybody. At the stage of defence evidence under Sec.233 of the Code, respondent filed schedule of witnesses citing PWs.12 and 13 (in the light of the observation in Annexure-IX, order referred above). That was objected by petitioner and it resulted in Annexure-XIV, order which is under challenge. Learned Additional Sessions Judge allowed PWs.12 and 13 to be recalled for further cross examination. Accordingly PW13 was recalled and further cross Crl.M.C.No. 942 of 2011 -: 3 :- examined (I am told by learned counsel on both sides). But, PW12 has not been further examined. It is at that stage that petitioner has challenged Annexure-XIV, order. Learned counsel placed reliance on the decision of the Apex Court in State of M.P Vs. Badri Yadav and Anr. ((2006)3 SCC (Crl.) 337) to contend that virtually, learned Additional Sessions Judge has allowed the prosecution witnesses to be examined as defence witnesses in spite of the fact that they had already been examined on the prosecution side which is not permissible under the law in view of the decision referred above. It is also submitted by learned counsel that attempt of the respondent was to make PWs.12 and 13 swallow whatever they had deposed as prosecution witnesses. Learned counsel for respondent placed reliance on the decision in Janardhanan Pillai Vs. State ((1991)1 KLT 618) and in particular, the observations in paragraph 3 to contend that as against the discretionary power of Court to recall a witness under Sec.311 of the Code, respondent has right to summon any witness under Sec.233 of the Code unless the Court is satisfied that such examination is vexatious or to delay trial of the case. It is also pointed out by learned counsel that the decision of the Supreme Court must be understood on Crl.M.C.No. 942 of 2011 -: 4 :- the background of the facts of that case where prosecution witnesses were examined on 18.12.1990 and after about five years, on 17.07.1995 there was an attempt to summon the witnesses on the defence which did not find favour with the Apex Court. It is also pointed out by learned counsel that Annexure-IX, order was not challenged by petitioner and on account of the observation made in Annexure-IX, order there was no necessity for respondent to challenge the said order as an opportunity was given to the respondent to examine any witness at the stage of defence evidence under Sec.233 of the Code. 3. No doubt under Sec.311 of the Code, the Court has the discretionary jurisdiction to recall any witness already examined when the Court is satisfied that evidence of such witness appear to be essential to the just decision of the case. But under Sec.233 of the Code, the accused is entitled to adduce evidence in support of his case and as per subsec.(3), if the accused applies for the issue of process for compelling attendance of any witness (or the production of any document or thing) the Court shall issue such process unless it considers, for reasons to be recorded that such application should be refused on the ground that it is made for the purpose of vexation or delay Crl.M.C.No. 942 of 2011 -: 5 :- or for defeating the ends of justice. There is therefore qualitative difference between power of the Court under Sec.311 of the Code and its power under Sec.233(3) to refuse to issue process to a witness cited by the defence. 4. But, that is not the question involved in this proceeding. It is not disputed that PW13 was examined on the prosecution side and she was cross examined by the respondent. The question is whether she could have been cited as a defence witness under Sec.233 of the Code? The decision of this Court referred supra and relied by the learned counsel for respondent states that under Sec.233 of the Code any witness including a witness who is already been examined by the prosecution could be summoned and that the said right of accused cannot be curtailed except in the circumstances stated in subsec(3) of Sec.233 of the Code. But, the Apex Court has disapproved that view in State of M.P Vs. Badri Yadav and Anr.(supra). In that case the prosecution witnesses (who were required to be summoned as defence witness under sec.233(3) of the Code) were examined on 18.12.1990 and it was on 17.07.1995 that those witnesses were cited as defence witnesses. They were again examined as DWs1 and 2. The Apex Court observed in Crl.M.C.No. 942 of 2011 -: 6 :- paragraph 12 of the decision in the following lines: “In this case the application under Sec.311 of the Code for recalling PW8 and PW9 and re- examining them was rejected by the court on 02- 09-1994. therefore, the question with regard to recalling PW8 and PW9 and re-examining them stood closed. There is no provision in the Code of Criminal Procedure that by filing affidavit the witnesses examined as PWs(PW8 and PW9 in this case) could be juxtaposed as DW1 and DW2 and he examined as defence witnesses on behalf of the accused.” 5. Reference was made to Sec.233 of the Code in paragraph 14 and it was held that witnesses who are already examined on the prosecution side (as PWs.8 and 9) were juxtaposed as DWs.1 and 2 which situation is not one contemplated by sub-section (3) of Sec.233 of the Code. In the light of the above decision it leaves me no doubt that respondent could not have cited a witness who was examined on the prosecution side as his witness. 6. Now going to the facts of the present case, so far as PW13 is concerned request for recalling under sec.311 of the Code both at her instance and at the instance of the respondent was turned down by the learned Additional Sessions Judge by Crl.M.C.No. 942 of 2011 -: 7 :- Annexure-IX, order. True, there is an observation that dismissal of the application is without prejudice to the right of the respondent under Sec.233 of the Code. But, Annexure-IX, order overlooks the decision of the Apex Court. Hence even in the light of observations made by learned Additional Sessions Judge in Annexure-IX, order respondent could not have cited and examined any of the prosecution witnesses already examined as witnesses on his side. 7. It is pointed out by learned counsel for respondent that as per Annexure-XIII, PWs.12 and 13 are not summoned as defence witnesses, but they are recalled for further examination. My attention is drawn to Annexure-XII, the defence witness list where the purpose of citing PWs.12 and 13 is stated as recalling them for further examination on the defence points and further examination under changed circumstances and to prove the defence case. So far as PW.13 is concerned, she is already recalled and further examined pursuant to Annexure-XIV, order. Acceptability of evidence which PW.13 has given when recalled pursuant to Annexure-XIV, order has to be decided by the learned Additional Sessions Judge in the manner mentioned hereunder. 8. So far as PW12 is concerned, his recall as per Crl.M.C.No. 942 of 2011 -: 8 :- Annexure-XIV, order cannot be said to be illegal as there was no request for recalling PW12 and decided by the learned Sessions Judge in Annexure-IX, order. Hence the observation made in Annexure-IX, order cannot affect the recall and further examination of PW12 as prosecution witness in exercise of power under Sec.311 of the Code. Though, PW12 is cited as witness by the defence in its witness list, it is seen from Annexure-XII that the purpose is to recall PW12 for giving further evidence in the changed circumstances. Hence the request could be taken as one to recall PW12 under Sec.311 of the Code. But the scope of examination and acceptability of evidence that PW12 may tender when recalled shall be decided by the learned Additional Sessions Judge in the light of decision in Johnson Vs. State of Kerala (1996(2) KLT 1027). Resultantly this criminal miscellaneous case is disposed of with the following directions: (i) The acceptability of evidence that PW13 has tendered on her recall as requested by the defence shall be decided by the learned Additional Sessions Judge having regard to the scope and ambit of Sec.233 of the Code vis-a- vis Sec.311 of the Code and the decisions in State of M.P Vs. Badri Yadav and Anr. and Crl.M.C.No. 942 of 2011 -: 9 :- Johnson Vs. State of Kerala (supra). (ii) So far as further examination of PW12 ordered by the learned Additional Sessions Judge is concerned, it is directed that it shall be treated as further examination on recall under Sec.311 of the Code and subject to the scope of recall under the said provision as stated in Johnson Vs. State of Kerala (supra). The acceptability of evidence that PW12 may give on such recall shall be decided by the learned Sessions Judge in the light of the observations made above and the decisions referred in clause (i), above. (THOMAS P JOSEPH, JUDGE) Sbna/-