HON’BLE SRI JUSTICE N. RAVI SHANKAR CRIMINAL PETITION No.5568 of 2011 ORDER:- The petitioner herein namely Jangadi Sreeramulu is described as the de facto complainant and eye witness in sessions case S.C.No.90 of 2007 on the file of the court of I Additional Sessions Judge, Ananthapur. Respondents 2, 3 and 4 herein are A-1, A-3 and A-5 in the said case. They have been charge sheeted by the Inspector of Police Ananthapur Rural Circle in the above case for the offence under Section 302 IPC and Section 302 read with S.34 IPC and also Sections 3 and 5 of the Explosive Substances Act, 1908, on the accusation that they committed murder of one Jangadi Chinna Yerriswamy. The other details are not necessary. 2. The trial went on in the above case and it is brought to my notice that the prosecution has examined all the witnesses it wanted to examine in the said case except the petitioner herein and that the matter has also reached the stage of arguments. At that stage, the Additional Public Prosecutor who was in-charge of the conduct of prosecution in the above case filed Crl.M.P.No.209 of 2011 before the trial court for recalling the petitioner and recording his evidence. 3. The accused party opposed that petition on various grounds. The trial court after considering the pleas of the prosecution and the points raised by the accused party in opposition to the said petition has dismissed that petition by its order dated 01.07.2011. The prosecution or the State did not challenge the said order. However, the petitioner herein who is shown as the de facto complainant and eye witness in the charge sheet of the said case has come up with this quash petition to quash the above order of the trial court and for a direction to it to record his evidence. 4. Sri Masthan Naidu the learned counsel appearing for the petitioner reiterating the pleas of the petitioner argued that right from the beginning the petitioner was under a life threat from the accused party and therefore he could not attend the court to give evidence and that all the material witnesses under threats from the accused did not support the prosecution case and therefore he has now come forward to give evidence and the trial court wrongly dismissed the prosecution’s request to examine him now. He further argued that ends of justice require that whatever be his past conduct the petitioner should be now permitted to give evidence in the interests of the justice in the case. 5. Sri Kailashnath Reddy the learned counsel appearing for the respondents 2 to 4 (accused) on the other hand pointed out that the impugned order of the trial court would show that number of opportunities were given to the petitioner to give evidence and he did not avail them and therefore the trial court was right in dismissing the prosecution petition in question. He also pointed out that the incident is of 2004 (registered as Crime No.51/2004 of Koderu Police Station) and charge sheet was filed some time at the end of December 2006 and the case was registered as S.C.No.90 of 2007 i.e. in the year 2007 and the trial commenced on 30.12.2010 and it was closed on 20.06.2011 and if the petitioner is now permitted to give evidence ignoring his past conduct in not attending the court earlier the whole case would be back to square one and respondents 2 to 4 cannot be allowed to suffer like this as they are already suffering from this criminal case since 2004. 6. The learned Additional Public Prosecutor at the stage of admission of this petition was requested to get his instructions in the matter. He has informed this court that the petitioner was at fault in not attending the court despite sufficient opportunity given to him but he requested that having regard to the nature of the case and seriousness of the charges the prosecution should be given one more opportunity to examine this witness and in that context he supported the stand of the petitioner’s counsel to that extent. 7. Thus the point is whether the petitioner should be given an opportunity to give evidence in the sessions court now. In other words, whether the prosecution should be permitted to lead his evidence now. 8. Before the point is taken up, a question may arise when the State has not filed any petition challenging the order of the trial court whether petitioner who is a witness can be granted the relief sought for by him or whether he has got the locus standi to approach this court for the relief sought for by him. It may be noted that the Additional Public Prosecutor who obtained instructions supported the stand of the petitioner and requested that the prosecution may be given an opportunity to examine the petitioner in the interests of justice. This apart, the non-official respondents could not show as to how or on what basis the petitioner cannot be permitted to approach this court for the relief in question. Even otherwise it may be noted that the petitioner admittedly is shown as de facto complainant and eye witness in the charge sheet. In these circumstances I am of the opinion that ends of justice would not be defeated if petitioner is permitted to seek the present relief notwithstanding the failure of prosecution to challenge the order in question. Accordingly this question is answered in favour of the petitioner. 9. Now turning to the point a perusal of the impugned order of the trial court would show that the petitioner was given number of opportunities to give his evidence in the case but he did not come forward to give evidence. It appears that leaving the petitioner aside, on the ground that he was not coming forward to give evidence, the prosecution examined the other witnesses and closed the trial. The impugned order of the trial court would no doubt, as contended by Sri Kailashnath Reddy, show that the petitioner was at fault. In fact, the impugned order would show that the trial court first issued summons to the petitioner/witness, later on bailable warrants, and on a third occasion it even issued non-bailable warrants to secure his presence to record his evidence but it could not record his evidence as the police failed in securing his presence. This failure of the police to secure his presence leaves much to be desired on their part. It is also not understandable as to how the court could go on with the trial without this witness who is shown as a very important material witness who could speak about the alleged complicity of the accused. Be that as it may, the whole circumstances in this case which are mentioned in the impugned order would show that the petitioner was at fault. The question now is whether his earlier conduct and fault in not attending the court is sufficient to deny the petitioner now a chance to give his evidence. 10. With regard to the above question, it should now be noted here that the criminal justice system in our country for the administration of justice has to necessarily depend upon the evidence of witnesses who can speak about the incidents relating to crime and the complicity of the persons who are put on trial as responsible for the said crimes. This apart it is now well settled that when a crime is committed it is treated as having been committed against the society and not against the individual alone who suffers from that crime and that is why the policing power and the power to launch prosecutions are taken up by the State as its responsibility. In other words a duty is cast upon the criminal justice system and the State to make all possible efforts to launch prosecution and make an attempt to conduct them successfully in order to protect the law and order in the society or country. It is true that in doing so the State and the criminal justice system are duty bound to see that innocent persons are not harassed but at the same time those guilty also do not go unpunished. No authority is necessary to support the above settled rules governing the administration of criminal justice system. 11. It is in the above context the point has to be determined. The present case is a murder case and accused are facing trial on murder charges which are indisputably serious charges and if murder cases or for that matter any serious criminal cases are allowed to be decided without examining the witnesses who ought to be examined that may have dangerous consequences for the society. 12. The trial court did not consider the above aspects and it ought to have considered the same especially when the prosecution itself has filed the petition for examining the petitioner and when admittedly there is no dispute about his identity. The trial court order would show that it was more swayed away by the earlier conduct of this petitioner which no doubt leaves much to be desired on his part. The police also no doubt could not secure this witness though the trial court issued process and waited for him for a considerable length of time extending over more than three years. In my opinion the need of the system outweighs the past conduct of the witness and in that view of the matter the ends of justice would not be defeated if the petitioner is given an opportunity to give his evidence now. 13. The trial court order would show that it has more dealt with about the scope of Section 311 of the Code of Criminal Procedure, 1973 (for short Code), and found that it does not provide for recall of a witness who was not examined at all. In fact the prosecution itself quoted Section 311 of the Code and therefore it appears the trial court gave the above reason also for rejecting the prosecution petition. It may be noted that Chapter-XVIII of the Code deals with trial of sessions cases. Section 231 of the Code lays down that on the date fixed for trial the prosecution should let in all its evidence and it is couched in a language to indicate that the Judge shall take that evidence as may be produced in support of the prosecution. 14. In the present case the prosecution no doubt failed to lead the evidence of the petitioner earlier and the impugned order shows that the petitioner himself was responsible for it but he has come forward now to give evidence and the prosecution filed petition for letting in his evidence. Even though the trial is closed in my opinion having regard to the language of Section 231 of the Code the court can permit the prosecution to lead the evidence of a material witness even at a later stage when he became available in the interests of administration of justice as the witness is already cited in the charge sheet. Even otherwise the language of Section 311 of the Code is capable of wide interpretation and the power to summon “any person as a witness” would also include a person cited as a witness but not examined earlier for one reason or the other. Thus the petitioner would fall under the above clauses and the court cannot refuse to record his evidence when the prosecution wants to lead his evidence and especially when he is an important witness in a case like this. It should also be noted that this is not a case where the prosecution wanted to re-open the case to examine a witness not cited in a charge sheet or not examined earlier by the police. This aspect also weighs in favour of the prosecution. 15. The petitioner may be a reliable witness or may not be a reliable witness but that is to be decided by the trial court which records his evidence. All these aspects relating to the reliability of the petitioner as a witness have to be decided by the trial court after giving sufficient opportunity to the accused. In the above circumstances and having regard to the interests of administration of criminal justice and the society I am of the opinion that despite the earlier deplorable attitude of the petitioner in not attending the court to give evidence, he has to be given a chance to give evidence now as a witness examined by the State i.e. the prosecution. 16. Sri Kailashnath Reddy pointed out that if this sort of permissions are given in cases like this the criminal trials will be protracted and a criminal trial may go on for decades resulting in avoidable harassment to the accused. True, there is delay in conclusion of trial in this case and it is also true that accused persons in several criminal cases have to move around courts without their hope of an early trial getting materialised. It should however be noted that in P. Ramachandra Rao v. State of Karnataka[1] it has been held by our Supreme Court that it is not advisable to prescribe a period of limitation for conclusion of a criminal trial and that is the function of the legislature. This principle more applies to a case where the witness that too an important witness has turned up later on to give evidence and that is what that has happened in this case. Having regard to the serious nature of the case and in the interests of justice and for the aforesaid reasons and in view of the aforesaid decision of our Supreme Court, I am of the opinion that the petitioner can be given one more opportunity to give evidence. 17. Sri Kailashnath Reddy then pointed out that if this witness is now examined again the prosecution may apply for recalling of other witnesses for their further examination and this may go on endlessly. It may be true that prosecution may apply for that or it may not apply for that. Even if such an application is made it is for the trial court to decide about the same and in my opinion no superior court can impose any fetters on a subordinate court dealing with a trial. Hence it is difficult to accept the above contention of Sri Kailashnath Reddy to reject the request of the petitioner/prosecution to give evidence. 18. Sri Masthan Naidu submitted that the petitioner is facing life threats from the accused party and that is why he did not appear before the court previously. It is stated by the other side that this witness has been attending the court also but there is no material to come to one conclusion or the other on this aspect. However having regard to the plea of Sri Masthan Naidu, the police are directed to give protection to the witness when he goes to the trial court for giving evidence. 19. As the case is an old one, the counsel for the petitioner requested to fix up a date for recording his evidence. It is however not possible to fix up a date as the trial court has to look into its convenience and the convenience of both sides for recording the evidence. In the circumstances the trial court is directed to fix up a date convenient to both sides within three weeks from the date of receipt of a copy of this order for recording the evidence of this witness and on that day both sides shall cooperate with the trial court to complete the recording of his evidence. The trial court may then proceed to take other steps and dispose of the matter as per law. 20. This petition is accordingly allowed answering the point in favour of the petitioner. ______________________ N. RAVI SHANKAR, J 22nd July, 2011 CVRK [1] AIR 2002 SC 1856