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IN THE HIGH COURT OF JUDICATURE AT MADRAS
S.M.SUBRAMANIAM, V.SIVAGNANAM, JJ.
The Assistant Director, Director of Enforcement – Appellant
Versus
Shri.B.Subramanyam – Respondent
CRL.O.P.No.14848 of 2024 and CRL.M.P.No.9094 of 2024
Decided on : 08-08-2024
Criminal - Criminal Procedure Code - Sections 311, 482 - The court emphasized the importance of ensuring justice by allowing the recall of witnesses and marking of documents, interpreting Section 311 broadly to prevent failure of justice due to inadvertent omissions.
Fact of the Case:
The petitioner sought to recall a witness and mark an FIR that was inadvertently not presented during trial. The trial court rejected the petition, stating only the officer who registered the FIR could present it.
Finding of the Court:
The court found that the trial court's rejection was incorrect, as Section 311 allows for the recall of witnesses to ensure justice, and the FIR could be marked through the investigating officer without prejudice to the accused.
Issues: Whether the trial court erred in rejecting the petition to recall a witness and mark the FIR, and the interpretation of Section 311 of the Criminal Procedure Code.
Ratio Decidendi: The court held that Section 311 allows for the recall of witnesses at any stage to prevent failure of justice, and that the FIR could be marked through the investigating officer without requiring the original officer's presence.
Result: The order of the trial court was set aside and the petition was allowed.
ORDER :
[Order of the Court was made by S.M.SUBRAMANIAM, J.]
Prayer: Criminal Original Petition is filed under Section 482 of Criminal Procedure Code, pleased to set aside the order dated 06.03.2024 in Crl.M.P.No.3647 of 2024 in C.C.No.15 of 2015 passed by Learned Principal Sessions Judge, Chennai with respect to recall of P.W5, Mr.Syed Bazlullah and thereby permit this petitioner to recall Mr.Syed Bazlullah, the then IO/DSP in CBI, BS and FC who was earlier examined as P.W5 and examine the same in the interest of justice.
The order dated 6th March, 2024 passed in Crl.M.P.No.3647 of 2024 in C.C.No.15 of 2015 on the file of the Court of Sessions at Chennai is sought to be assailed in the present criminal original petition.
2. The Assistant Director, Directorate of Enforcement is the petitioner before this Court. The petitioner filed miscellaneous petition under Section 311 of Criminal Procedure Code to reopen the complainant side evidence and examine witnesses. The petition was filed mainly on the ground that inadvertently the First Information Report (F.I.R) was not marked during the relevant point of time. Subsequently, the Superintendent of Police, who registered the F.I.R. got promoted to the post of Additional Director General of Police (ADGP) and transferred to the State of Karnataka. Now he is holding the post of ADGP (Law and Order). Thus, he is not in a position to respond to the summons issued.
3. Under these circumstances, the petitioner/Assistant Director, Directorate of Enforcement filed a petition under Section 311, enabling P.W.5/Investigating Officer of the predicate offence to mark F.I.R. for the purpose of proceeding with the trial. The Trial Court though not disputed these basic facts rejected the petition mainly on the ground that the officer registered the F.I.R. alone should present for marking the F.I.R. More so, on earlier occasion, nine witnesses were examined and the petitioner has not initiated steps to bring L.W.7 for marking F.I.R.
4. Mr.S.Raveekumar, learned counsel for the 2nd respondent strenuously objected by stating that the Officer, who registered the F.I.R. in predicate offence alone is competent to mark the document before the Trial Court.
5. In the present case, though opportunities were provided, the respondent is unable to bring the officer, who registered the offence of predicate offence. Therefore, the Trial Court is right in rejecting the application filed by the petitioner under Section 311 of Criminal Procedure Code.
6. Further, it is contended that the F.I.R. is not an essential document and it will not destroy the case of the petitioner and marking F.I.R. after filing charge sheet may not be required. However, such an argument is unacceptable under law.
7. In the cases of PMLA, certain hyper-technical ground not causing prejudice to the interest of an accused person need not be considered. Constructive interpretation of provisions are imminent in such circumstances to ensure delivery of justice to the parties.
8. The scope of Section 311 of Criminal Procedure Code is to ensure that petition for recall and re-examine any person or to re-examine can be permitted in the interest of justice. In the present case, the F.I.R. has been registered by L.W.7 for predicate offence. However, the trial has been undertaken under the provisions of Prevention of Money Laundering Act, 2002 [hereinafter referred as “PMLA”] for the alleged offences under Section 3 and punishment under Section 4 of PMLA. Therefore, the F.I.R. is to be construed as a document. Thus, it is not necessary that the officer registered the F.I.R. for predicate offence must be present for marking the F.I.R. More so, marking the F.I.R. through P.W.5, Investigating Officer of predicate offence would not cause any prejudice to the accused for defending his case in the trial.
9. Adopting a pragmatic approach and considering the scope of Section 311 of Criminal Procedure Code and considering the likelihood of causing prejudice to the accused
The power under Section 311 CrPC should be exercised for the just decision of the case, and the evidence sought to be adduced must be essential, requiring judicial discretion.
The main legal point established in the judgment is that the discretionary power under Section 311 of Cr.P.C. should be exercised judiciously and for strong and valid reasons, and the petitioner's fa....
The main legal point established in the judgment is the need for judicious exercise of the power to summon or recall witnesses under Section 311, Cr.P.C. to ensure the discovery of truth and the just....
The discretionary power of the Trial Court under Section 311 Cr.P.C. to recall and re-examine witnesses to rectify ambiguity and ensure a just decision.
Section 311 of the Code mandates courts to allow recalling witnesses if essential for achieving a just decision, reflecting the right to a fair trial.
The court upheld the trial court's decision to recall a witness under Section 311 of the CrPC, emphasizing the necessity of evidence for a just decision and the right to a fair trial.
The court established that the power under Section 311 CrPC to summon or recall witnesses is essential for ensuring a just decision in criminal trials, and must be exercised with caution to avoid pre....
The duty of the court to determine the truth and to render a just decision, and the need to exercise the power under Section 311 Cr.P.C judiciously to meet the ends of justice.
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