Ms. Sree Venkatadeswara Enterprises vs G. Rajasekharan Nair, Government Contractor

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2006 Supreme(Ker) 469

Judges : J.B.KOSHY,M.SASIDHARAN NAMBIAR
Ms.Sree Venkatadeswara Enterprises - Appellant
Versus
G.Rajasekharan Nair, Government Contractor - Respondent
Case No : Crl.Rev.Pet.No.1827 of 2004 & Crl.M.C.1921 of 2004
Decided On : 08/03/2006
Advocates Appeared :
For the Petitioners: D. Sajeev, Ligey Antony, Advocates. For the Respondents: R2, Sujith Mathew Jose, Public Prosecutor, R1, S. Rajasekharan Nair, Advocate.

Headnote:
Criminal Procedure Code . 1973 - Section .311 -Whether the trial ends when a criminal case is posted for judgment? -Whether a Magistrate is competent to invoke power under S.311 of Code of Criminal Procedure after arguments were heard and case is posted for judgment and before the judgment is pronounced? -Held, Court hold that learned Single Judge has not correctly laid the law in Sajeendran v. Thalakulathoor Grama Panchayat and Joseph.P.T v. K.K.Rajappan & Anr. (2004 (1) KLJ (NOC) 12). We overrule the same and hold that trial as provided under S.311 of the Code will not be terminated by closing the evidence of prosecution and defence or posting the case for judgment. Trial would stand terminated only on pronouncing the judgment either acquitting the accused or awarding the sentence after conviction -Crl.M.C.1921/04 is dismissed.

Judgement Key Points

Argument Note: Power under Section 311 CrPC exercisable until pronouncement of judgment

1. Trial does not terminate merely upon posting case for judgment:
Trial continues post-arguments and remains ongoing until judgment is pronounced, encompassing both conviction/acquittal and sentencing stages. A Magistrate retains competence to invoke Section 311 even after evidence closure, arguments, and posting for judgment, provided essential for just decision. (!) [15000010960005][15000010960009] (!)

2. Wide amplitude of Section 311 CrPC:
Section empowers any court, at any stage of inquiry, trial, or proceeding, to summon/examine/recall witnesses if essential to just decision. Power is discretionary in first part ("may") and mandatory in second ("shall"), unrestricted by trial stage, aimed at preventing failure of justice due to evidentiary gaps. (!) (!) [15000010960003] (!) (!)

3. Stages of trial confirm continuity until judgment:
- Sessions trial: Extends beyond evidence/arguments to judgment under S.235(1), hearing on sentence under S.235(2), and post-conviction evidence under S.236.[15000010960007]
- Warrant case: Continues to acquittal/conviction under S.248(1)-(2), including post-conviction evidence on prior convictions under S.248(3).[15000010960008]
- Summons case: Culminates only at judgment under S.255.[15000010960008]
S.353(1) requires judgment pronouncement post-termination, but pronouncement itself integral to trial; incomplete without sentence per S.354.[15000010960009]

4. Court's duty to seek truth overrides party lapses:
Court not mere umpire; must actively ascertain truth via S.311/165 Evidence Act, even post-arguments if exigency demands, ensuring justice over adversarial contest. (!) (!) (!) (!) [15000010960012]

5. No bar pre-judgment; aligns with appellate powers:
Power persists till judgment pronouncement, mirroring S.391 for appeals; invocable bona fide for just decision, benefiting prosecution or defence.[15000010960010] (!)

Conclusion: Trial terminates solely on judgment pronouncement (acquittal or post-conviction sentence). Orders denying S.311 applications post-arguments but pre-judgment liable to be set aside for fresh consideration on merits. (!) (!)

Judgment :-

Sasidharan Nambiar, J.

When does a trial of a criminal case terminates? Whether the trial ends when a criminal case is posted for judgment? Whether a Magistrate is competent to invoke power under Section 311 of code of criminal procedure after arguments were heard and case is posted for judgment and before the judgment is pronounced? These are questions to be answered.

2. A learned Single Judge of this court in Sajeendran v. Thalakulathoor Grama Panchayat (2004 (1) KLT 69) finding that case was posted for judgment by the Magistrate and application filed by the complainant under Section 311 of the Code was thereafter allowed by the Magistrate held that trial of the case was terminated when the case was posted for judgment and consequently power under Section 311 of the Code cannot be invoked by the Magistrate. Following the same principle the same learned Single Judge in Joseph. P.T. Vs. K.K. Rajappan & Another (2004 (1) KLJ (NOC) 12) held that as the case was only posted for argument trial has not been terminated and therefore Magistrate is competent to invoke the power under Section 311 of Cr.P.C. Another learned Single Judge respectfully disagreeing with that view made this reference doubting the correctness of the decision in Sajeendranâ€™s case.

3. Section 311 of Cr.P.C. reads.

Any court may, at any stage of any inquiry, trial or other proceeding under this Code summon any person as witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the court shall summon and examine or recall and re-examine appears to it to be essential to the just decision of the case.

Section 311 enables any court at any stage of any enquiry, trial or other proceedings under the Code to summon any person as a witness or recall and examine any witness already examined if his evidence appears to be essential for just decision. The object underlying Section 311 is that there may not be failure of justice on account of mistake of either party in bringing valuable evidence on record or leaving ambiguity in the statement of the witnesses examined from either side. The determining factor is whether it is essential to a just decision of the case. Section is couched in the widest possible terms and calls for no limitation either with regard to the stage at which the power of court should be exercised or with regard to the manner in which it should be exercised. It is not only the right but also the duty of a court to examine such of those witnesses, as it considers absolutely necessary for doing justice between the state and the subject.

4. The section is manifestly in two parts. Words used in the first part is â€œmayâ€ and in second part â€œshallâ€. First part provides a discretionary power to a criminal Court. It enables the court at any stage of any enquiry, trial or proceeding to summon any one as a witness or to examine any person present in court or to recall and re-examine any person whose evidence has already been recorder. Second part is mandatory. It compels the court to exercise the power if the new evidence appears to the court essential to take a just decision of the case. There is a duty cast upon the court to arrive at the truth by lawful means. One of the important powers of the court is provide under Section 311 of the Code. Section 311 is thus couched in the widest form possible.

5. The power under Section 311 of the code is complementary to the power provided under Section 1265 of Indian Evidence Act. Section 165 provides:

â€œThe Judge may, in order to discover or to obtain proper proof of relevant facts, ask any question he pleases, in any form, at any time, if any witness, or of the parties, a bout any fact relevant or irrelevant: and may order the production of any document or thing; and neither the parties nor their agents shall be entitled to make any objection to any such question or order, nor, without the leave of the Court, to cross-examine an

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