The learned Magistrate, in the order impugned, extracted the evidence of PW.1 where she stated that she came to know the accused through her husband, and found fault with the Investigating Officer for not examining and citing her husband as a witness in the case. Since the defacto-complainant is a lady, she, obviously, must have come into contact with the accused only through her husband. So, her evidence that she came to know the accused through her husband cannot, prima facie, be disbelieved and so, I also, am of the opinion that the evidence of the husband of PW.1 would be of help and assistance to the Court in arriving at a just conclusion. As stated earlier the fact that the statement of the said witness was not recorded under Section 161 Cr.P.C. by itself is not and cannot be a ground for negating the prayer for his examination.
Question as to what extent the evidence of the husband of PW.1 can be used is a matter to be decided by the Court at the time of judgment depending on the facts and circumstances of the case. It is needless to mention that petitioners (accused) would be afforded due and adequate opportunity to rebut the evidence of the husband of the defacto-complainant i.e., PW.1.
Andhra High Court
Chemo Steels Limited, Rep. By Its ... vs State Of Andhra Pradesh, Rep. By ... on 9 August, 2004
Equivalent citations: 2005 (1) ALD Cri 6, 2005 CriLJ 716
1. Private complaint filed by the third respondent was referred to police for investigation under Section 156(3) Cr.P.C. Police, after investigation, filed a charge sheet against the petitioners for various offences. After the prosecution closed its evidence, and when the case was posted for examination of the accused under Section 313 Cr.P.C, prosecution filed Crl. M.P. No. 8082 of 2002, under Section 311 Cr.P.C, seeking permission of the Court to examine the husband of the defacto-complainant as additional witness on its behalf. Petitioners opposed the said application. The trial Court by the order impugned in this petition, allowed the said petition. Hence, this petition.2. The main contention of the learned counsel for the petitioners is that since Section 161 Cr.P.C statement of the witness intended to be examined as additional witness is not recorded by the police, petitioners, who are the accused, would be put to hardship and inconvenience as they would not be having an opportunity to cross-examine the witness with reference to his earlier statement and since there is not even a whisper by the defacto-complainant about her being acquainted with the petitioners through her husband, it is clear that the petition seeking permission to examine the husband of the defacto-complainant is filed only with a view to fill up the lacunae in the case of the prosecution, and since examination of the husband of the defacto-complainant as a witness at this stage would cause great prejudice and hardship to the petitioners, the learned Magistrate ought not to have granted permission to the prosecution to examine additional witness on their behalf. He placed strong reliance on MOHANLAL SHAMJI SONI V. UNION OF INDIA, 1991 IV CRIMES 818 and LAVETI KAMALA V. STATE OF ANDHRA PRADESH, 2002 (1) ALT (CRL) 333 in support of the contentions raised by him.
3. The contention of the learned counsel for the third respondent (defacto-complainant) is that since the evidence of PW.1 (defacto-complainant) shows that she came to know the petitioners (accused) through her husband and that she entered into the transaction (which is the subject matter of the case) with them through her husband, it is clear that the husband of the defacto-complainant is aware of the facts of the case but the Investigating Officer did not record his statement under Section 161 Cr.P.C and cite him as a witness, and so defacto-complainant cannot be put to prejudice for the laches on the part of the investigating officer. He also relied on Mohanlal Shamji Soni's Case (1 supra) and contends that since the learned Magistrate gave cogent reasons for his conclusion that the petition has to be allowed, there are no grounds to interfere with the order impugned. Heard the learned Public Prosecutor.
4. In Mohanlal Shamji Soni's Case (1 supra) relied upon by the learned counsel of both sides, it is held that the power of the Court to summon or call any witness or witnesses or recall a witness or witnesses already examined can be invoked at any stage as long as the Court is seisin of the criminal proceedings and that such jurisdiction must be dictated by exigency of the situation and such additional evidence can be permitted to be adduced only after giving a fair and reasonable opportunity to the accused to rebut the evidence that was brought against him. In view thereof, it is clear that, if circumstances so warrant Court has power to permit examination of a person though he is not cited as a witness by the prosecution in the charge sheet or private complaint, but due opportunity must be given to the accused to rebut that evidence. Therefore, I am not able to agree with the contentions of the learned counsel for petitioners that a person whose statement under 161 Cr.P.C was not recorded by the investigating officer cannot be called as a witness under Section 311 Cr.P.C because 'any person' used in that Section takes in its sweep persons not cited as witnesses by the prosecution also. If it were otherwise the wording of Section 311 Cr.P.C would have been different.
5. In Laveti Kamala's Case (2 supra) relied upon by the learned counsel for the petitioners, the prosecution sought permission to examine the legal representatives of two persons cited as witnesses in the charge sheet, who died subsequent to the laying of the charge sheet. It was held that merely because of the death of a cited witness during the pendency of the proceedings, one of his legal representatives cannot be a substitute for him to be examined as witness for the prosecution in his sted. In that case it is not the case of prosecution that additional witnesses sought to be examined have personal knowledge about the facts of the case. Merely on the ground that they are the legal representatives of the witnesses cited, the prosecution sought permission to examine them. That a person whose statement under Section 161 Cr.P.C was not recorded cannot be permitted to be examined as witness under Section 311 Cr.P.C is NOT the ratio in that decision. Even assuming that it is held so in that decision in view of the ratio in Mohanlal Shamji Soni Case (1 supra) that fact per se cannot be a ground for dismissing a petition under Section 311 Cr.P.C. In fact, in BHIKYA BALU V. STATE OF ANDHRA PRADESH, 1997 (2) ALD 819 it is held by another learned single Judge of this Court that if the evidence proposed to be adduced appears to be essential to render a just decision in the case, additional witness can be examined, especially when his name was spoken to by the other prosecution witnesses already examined, and if there is nothing to show that the he is planted in the garb of additional witness to support the prosecution case.
6. The learned Magistrate, in the order impugned, extracted the evidence of PW.1 where she stated that she came to know the accused through her husband, and found fault with the Investigating Officer for not examining and citing her husband as a witness in the case. Since the defacto-complainant is a lady, she, obviously, must have come into contact with the accused only through her husband. So, her evidence that she came to know the accused through her husband cannot, prima facie, be disbelieved and so, I also, am of the opinion that the evidence of the husband of PW.1 would be of help and assistance to the Court in arriving at a just conclusion. As stated earlier the fact that the statement of the said witness was not recorded under Section 161 Cr.P.C. by itself is not and cannot be a ground for negating the prayer for his examination.
7. Question as to what extent the evidence of the husband of PW.1 can be used is a matter to be decided by the Court at the time of judgment depending on the facts and circumstances of the case. It is needless to mention that petitioners (accused) would be afforded due and adequate opportunity to rebut the evidence of the husband of the defacto-complainant i.e., PW.1.
8. Therefore, I find no ground to interfere with the order of the learned Magistrate granting permission to examine additional witness and hence the petition is dismissed.
No comments:
Post a Comment