The trial Court has the authority to summon witnesses not previously examined and can alter charges if necessary to ensure justice.

Headnote:(A) Criminal Procedure Code, 1973 - Sections 161(3) and 311 - Investigation - Challenge to final report filed by police - Petitioner contends that investigation was inadequate and important witness was not examined - Court clarifies that petitioner can be called as a witness despite her husband's death, and charges can be altered if necessary. (Paras 3, 5, 6, 7)

(B) Witness Examination - The trial Court has the authority to summon witnesses not previously examined, ensuring that all relevant evidence is considered. (Paras 5, 7)

Facts of the case:
The petitioner challenges the final report of the police in a theft case, asserting that the investigation was flawed and that she, as a key witness, was not examined.

Findings of Court:
The petitioner is deemed competent to testify, and the trial Court retains the discretion to alter charges if warranted.

Issues: The main issues were the adequacy of the investigation and the status of the petitioner as a witness.

Ratio Decidendi: The court emphasized the trial Court's power to call witnesses and alter charges as necessary to ensure justice is served.

Result: Petition disposed of.

O R D E R

This petition has been filed challenging the final report filed by the respondent police which has been taken on file in S.T.C.No.2 of 2022 by the learned Judicial Magistrate, Thirumayam and for a further direction to the second respondent to conduct further investigation in this case.

2.Heard the learned counsel for the petitioner and the learned Additional Public Prosecutor appearing on behalf of the respondent.

3.The main grievance that was expressed by the learned counsel for the petitioner is that the investigation has not been properly conducted in this case and that in the final report, the charge under Section 379 of IPC was dropped and that apart, the petitioner who is an important witness has not been examined by the police.

4.In the considered view of this Court, the grievance of the petitioner seems to be that her husband Manikkam, who was the defacto complainant died and therefore, there is no one on the side of the petitioner to adduce evidence before the Court. Since the petitioner has not been examined under Section 161(3) of Cr.P.C., the petitioner apprehends that she will not be called as a witness.

5.The trial Court has wide power under Section 311 of Cr.P.C. to call anyone as a witness who has not been examined by the police while recording the statements under Section 161(3) of Cr.P.C. Therefore, if the husband of the petitioner has died and the petitioner is competent to speak about the incident, the petitioner can always be called as a witness in this case.

6.The police have dropped the charge under Section 379 of IPC. If in the course of trial, ultimately the offence is made out, the Court can always alter the charge under Section 216 of Cr.P.C. Hence, it is not necessary for ordering further investigation for this purpose.

7.In the light of the above discussion, it is made clear that the petitioner will be called as a witness in this case since her husband Manikkam from whom Section 161(3) of Cr.P.C. statement was recorded died and the petitioner is the only competent witness who can speak about the incident. Insofar as altering the charges, it is always left open to the Court to deal with the same in line with Section 216 of Cr.P.C.

8.This Criminal Original Petition is disposed of in the above terms.

19.11.2024

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2024 Supreme(Online)(MAD) 41733

HIGH COURT OF MADRASN.ANAND VENKATESH, JMallika – AppellantVersusThe Superintendent of Police – RespondentCrl.O.P.(MD) No.8139 of 2023

The trial Court has the authority to summon witnesses not previously examined and can alter charges if necessary to ensure justice.

HIGH COURT OF MADRAS
N.ANAND VENKATESH, J
Mallika – Appellant
Versus
The Superintendent of Police – Respondent
Crl.O.P.(MD) No.8139 of 2023