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2024 Supreme(Online)(KER) 20307
HIGH COURT OF KERALA
A. BADHARUDEEN, J
LEKSHMI – Appellant
Versus
SAJJAY – Respondent
Crl.MC 5989/2023
The introduction of new evidence in a trial is permitted if it aligns with justice, regardless of previous procedural failures, ensuring fairness for both parties.
Headnote:
Quash - Criminal Procedure - Code of Criminal Procedure, 1973 (Sections 482) and Indian Evidence Act (Section 33) - This decision quashed a prior order, allowing the recall of a witness to admit evidence relating to disputed gold ornaments, while safeguarding the accused's ownership rights.
Fact of the Case:
The petitioner sought to quash an order prohibiting the admission of gold ornaments as evidence in a criminal case, asserting ownership based on prior court orders, while the accused contested this ownership during ongoing proceedings.
Finding of the Court:
The court found that recalling the witness to mark the gold ornaments as material evidence was permissible and would not prejudice the accused's right to dispute ownership; this was crucial for justice.
Issues: Whether the court could allow additional evidence regarding gold ornaments to be marked, and how to balance this with the rights of the accused to contest ownership.
Ratio Decidendi: The court affirmed that additional evidence could be admitted even after initial investigations, provided it serves the interests of justice and does not infringe upon the accused's rights.
Final Decision: The court quashed the previous order and allowed the recall of the witness for marking the gold ornaments as evidence.
Dated this the 29 th day of July, 2024 This Criminal Miscellaneous Case has been filed under Section 482 of the Code of Criminal Procedure, 1973 , seeking the following relief:
- For these and other reasons to be urged at the time of hearing it is most humbly prayed that this Hon'ble Court may be pleased to quash A-13 Order issued by the Hon'ble Judicial First Class Magistrate Court-II, Kollam and to allow the prayers contained in A-12 Petition. It is further prayed that a direction may be issued to the Judicial First Class Magistrate Court-II, Kollam to recall PW-1 to give evidence on gold ornaments produced before the Court and to mark deposition of the 1st respondent on diary marked as A-78 in OP (HMA) No.758/2012 and OP No.774/2013 as per Section 33 of Indian Evidence Act.
2.The petitioner herein is the defacto complainant and the 1 st respondent herein is the 1 st accused in C.C. No.77/2013 on the files of the Judicial First Class Magistrate Court-II, Kollam.
3.Heard the learned counsel for the petitioner, the learned counsel appearing for the 1st respondent and the learned Public Prosecutor, in detail. Perused the impugned order and relevant materials available.
4. In this matter, Annexure.A13 order in C.M.P . No.2721/2023 in C.C. No.77/2013 dated 06.07.2023 is under challenge, mainly on the ground that the gold ornaments obtained by the petitioner herein, in view of the order of the Family Court, Kollam in O.P. No.774/2013 as well as this Court in Crl.M.C. No.5476/2022, to be let in evidence as material objects, in order to prove offence punishable under Section 406 of Indian Penal Code.
5.According to the learned counsel for the petitioner, the gold ornaments were initially attempted to be marked as material object in this crime at the instance of the accused/1st respondent and the prosecution opposed the same. Now, the prosecution filed the present petition to mark the gold ornaments as material object. He also pointed out that in so far as the reliefs sought for in Annexure.A12 petition, he is pressing the reliefs to recall PW1 and mark the gold ornaments alone and the other prayer is not pressed.
6. The learned counsel appearing for the 1 st respondent/accused would submit that in so far as the gold ornaments, now in custody of the petitioner, the 1st respondent has a specific case that the same belonged to him and the petitioner herein is not the owner of the same. He also submitted that, though the Family Court found otherwise, the said finding is under challenge in Matrimonial Appeal pending before this Court. The learned counsel appearing for the 1st respondent also would submit that, if at all the gold ornaments to be let in evidence as material object, by examining PW1, the same shall not prejudice the right of the 1st respondent to take contention regarding the authenticity of the gold ornaments as well as to contend that the gold ornaments are owned by him.
7.The learned Public Prosecutor not opposed the reliefs sought for by the petitioner.
8.On perusal of the materials, it appears that this matter reached before this Court three times, vide Crl.M.C.
Nos.5476 and 9532 of 2022. At the same time, the 1st respondent herein filed another petition as O.P. (Crl) No.403/2022 for early disposal of the case and such a direction also was granted by this Court as per judgment dated 16.11.2021. The dispute in a narrow compass is confined to whether PW1 is to be recalled for the purpose of marking the gold ornaments as material objects in this case. Though, the Investigating Officer failed to obtain custody of the gold ornaments during the initial stage of investigation and even on further investigation, the law does not prohibit introduction of additional evidence, if such a course of action is necessary, in the interest of justice.
9.However, recalling of PW1 for the purpose of marking gold ornaments as material object shall not prejudice the right of the accused to challenge its genuineness and ownership, since he has a s
