Back
IN THE HIGH COURT OF KERALA AT ERNAKULAM
KAUSER EDAPPAGATH, J.
State of Kerala – Petitioner
Versus
Sunil N.S. @ Pulsar Suni S/o Surendran – Respondent
Criminal M.C. Nos. 6702, 6703 of 2021
Decided On : 17-01-2022
Indian Penal Code, 1860 - Sections 120(B), 109, 342, 366, 354, 354(B), 357, 376(D), 506(1) 201, 212 r/w S.34 - IT Act, 2008 - Sections 66(E) and 67(A) - Criminal Procedure Code, 1973 - Sections 91 and 311 - Evidence Act - Sections 61 and 62 - Criminal conspiracy and Criminal Intimidation - Offence of Rape - Power to summon material witness, or examine person present - Interlocutory orders - Challenged - Whether prayer to summon or recall a witness is genuine - The survivor, a South Indian cine actress, was abducted and sexually assaulted in a moving vehicle at Ernakulam while returning from shooting location by accused persons - Prosecution alleges that Accused No. 8, a South Indian cine actor and producer, who is the master mind of the crime hatched criminal conspiracy with the remaining accused to commit the offence - Thereafter, another special team conducted further investigation and filed supplemental final report.
Finding of the Court:
It is well settled that neither mere admission of a document in evidence amount to its proof nor mere marking of an exhibit of a document dispense with its proof which is otherwise required to be done in accordance with law. As stated already, photocopies of original customer application forms were produced along with final report and copies of same were furnished to accused. Now, the prosecution wants to summon its original. It is true that there is a delay in filing the application. The matter of delay is fatal only if the parties attempt to obtain any unfair advantage. In this case, no new document is attempted to be introduced. The only prayer is to produce the original of the documents which were already marked. By producing originals, no undue advantage will be obtained by the prosecution and no prejudice would be caused to any of the accused. Hence, first prayer can be allowed - Section 91 of Cr.P.C empowers a Court to issue summons for the production of a document in the possession or power of a person if such document is necessary or desirable for purpose of any inquiry or trial. True, ordinarily, the said power cannot be stretched to direct a person to create a document and to produce the same - Section 65B does not speak of the stage at which such certificate must be furnished to the Court. In Anvar (supra), the Apex Court observed that such certificate must accompany the electronic record when the same is produced in evidence. However, in Arjun (supra), it was held that so long as the hearing in a trial is not yet over, the requisite certificate can be directed to be produced at any stage, so that information contained in electronic record form can then be admitted, and relied upon. It was clarified that the contemporaneous production is required only in cases where such certificate could be procured by the person seeking to rely upon an electronic record. It was specifically held that in cases where either a defective certificate is given, or in cases where such certificate has been demanded and is not given by the concerned person, the Judge conducting the trial must summon the person/persons referred to in Section 65B(4) of the Evidence Act and require that such certificate be given by such person/persons.
Result: Crl. M.C. disposed of.
ORDER :
1. These Crl. M.C. are preferred by the State challenging two separate interlocutory orders passed by the Additional Special Sessions Court (SPE/CBI)-III, Ernakulam in Crl. M.P. Nos. 2039/2021 and 2040/2021 in S.C. No. 118/2018 dated 21st December, 2021.
2. The respondents are the accused. The offences alleged are under Sections 120(B), 109, 342, 366, 354, 354(B), 357, 376(D), 506(1) 201, 212 r/w S.34 of IPC and Sections 66(E) and 67(A) of IT Act, 2008.
3. The prosecution case in short is that, on the night of 17.2.2017, the survivor, a South Indian cine actress, was abducted and sexually assaulted in a moving vehicle at Ernakulam while returning from shooting location by the accused Nos. 1 to 6. The prosecution alleges that the Accused No. 8, a South Indian cine actor and producer, who is the master mind of the crime hatched the criminal conspiracy with the remaining accused to commit the offence.
4. The case which received national attention has reached this Court and the Apex Court on more than one occasion at different stages. The Apex Court by its order dated 16th August, 2021 has directed the Court below to complete the trial within six months which will expire on 15.2.2022.
5. The crime was registered on the date of occurrence itself. The investigation was conducted by a special team. The final report was initially filed on 18.4.2017. Thereafter, another special team conducted further investigation and filed supplemental final report on 22.11.2017. The examination of the witnesses commenced at the Court below on 30.1.2020. As many as 202 witnesses (PWs. 1 to 202) were examined on the side of the prosecution. It is submitted at the Bar that only the main investigating officer was remaining. At that juncture, the prosecution filed two petitions at the Court below as Crl. M.P. No. 2039/2021 and Crl. M.P. No. 2040/2021. The former one was u/s 91 of the Code of Criminal Procedure (for short, the Cr.P.C.) to summon eight witnesses to produce certain documents and the latter one u/s 311 of Cr.P.C. was to summon sixteen witnesses to examine them. The respondents/accused stoutly opposed both the petitions. The respondents Nos. 7 and 8/accused Nos. 7 and 8 filed objection statements. The Court below after hearing both sides dismissed Crl. M.P. No. 2039/2021 and partly allowed Crl. M.P. No. 2040/2021 by the impugned orders. Out of the 16 witnesses sought to be summoned in Crl. M.P. No. 2040/2021, the Court below allowed to summon four witnesses alone. Being aggrieved by the rejection of the prayer for summoning the remaining witnesses, the State preferred Crl. M.C. No. 6702/2021. Being aggrieved by the dismissal of Crl. M.P. No. 2039/2021, it preferred Crl. M.C. No. 6703/2021. Since both the Crl. M.C. are interconnected, I am disposing of the same together.
6. I have heard Sri. T.A. Shaji, the learned Director General of Prosecution appearing for the petitioner/State, Sri. B. Raman Pillai, the learned Senior Counsel appearing for the respondent No. 8/accused No. 8, Sri. Pratheeksh Kurup, the learned counsel for the respondent No. 1/accused No. 1, Sri. Alex Joseph, the learned counsel for the respondent No. 2/accused No. 2, Sri. M.A. Vinod, the learned counsel for respondent No. 3/accused No. 3, Sri. A. Mohammed, the learned counsel for the respondent No. 4/accused No. 4 and Sri. K.V. Sabu, the learned counsel for the respondent Nos. 5 and 6/accused Nos. 5 and 6.
7. Sri. T.A. Shaji, the learned Director General of Prosecution appearing for the petitioner, submitted that Section 311 of Cr.P.C. confers a very wide power on the Court to summon any person as a witness or to recall and reexamine any person already examined at any stage of any inquiry, trial or other proceeding and further Section casts a duty upon the Court to summon and examine or recall and reexamine any such person, if his evidence appears to be essential to the just decision of the case. A liberal approach shall be the rule and all other parameters become exception
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
