RECALLLING OF WITNESSES - POWERS OF HIGH COURT

THE HON'BLE SRI JUSTICE B.CHANDRA KUMAR

Criminal Petition No. 4379 of 2010

20-05-2010

Sri T.Achamma

The State of A.P. & others

Counsel for Petitioner: Sri K.Ramamohan Mahadeva

Counsel for Respondent : Additional Public Prosecutor

:ORDER:

This Criminal Petition under Section 482 Cr.P.C. is filed by the petitioner seeking to quash the order in Crl.R.C.No.19 of 2009 dated 05.02.2010 passed by the III Additional Sessions Judge (FTC), Rajampet, Kadapa District, confirming the order passed by the Judicial First Class Magistrate, Rajampet, in Crl.M.P.No.643 of 2008 in C.C.No.40 of 2005 dated 28.01.2009.

2. Heard

3. The petitioner is the defacto complainant in C.C.No.40 of 2005. In the said Calendar Case, on 15.02.2006 charges were framed, summons were issued to LWs 1 to 4 and the case was posted to 17.03.2006. During the pendency of the proceedings A.3 died and case against him was abated. On 02.01.2008 LW.1 (petitioner herein) was present and at the request of the accused, the case was adjourned to 07.01.2008. On 07.01.2008 also the petitioner (LW1) was present and at her request the case was adjourned to 21.01.2008. On 21.01.2008 LWs 1 to 4 were absent. However, on 06.05.2008 LW.1 was present and again sought for an adjournment, but there was no representation on behalf of the prosecution since it was not APP day. Again the case was adjourned to 03.06.2008 and fresh summons were ordered to the witnesses with specific instructions to produce the witnesses on 30.06.2008. However, on that day, LWs 1 to 4 were absent and summons were not served on them. Observing that in spite of passing specific orders, the summons could not be served, the learned Magistrate closed the evidence of LWs 1 to 4 and issued fresh summons to LWs 5 to 10 and posted the case to 22.07.2008. On that day, the prosecution filed Crl.M.P.No.643 of 2008 praying to recall LWs 1 to 4 and examine them. The learned Magistrate observing that inspite of giving several opportunities, the prosecution failed to produce the witnesses, dismissed the petition. Aggrieved by the same, the matter was carried in revision by the Prosecution. However, the said petition was dismissed mainly on the ground that revision is not maintainable against interlocutory orders. Challenging the same, this petition has been filed.

4. It appears that LW.1 is the injured witness and LWs 3 to 4 are the eye witnesses. They being the material witnesses, if not examined by the prosecution, the very purpose of conducting trial against the accused will be defeated. It is settled law that Revisional Power cannot be exercised in relation to interlocutory orders in view of sub-section 2 of Section 397 of Code of Criminal Procedure. However, the term 'interlocutory order' in Section 397 (2) of the Code of Criminal Procedure appears to have been used in a restricted sense and not in a broad sense. Any order, which substantially affects the rights of the parties, cannot be treated as interlocutory order to bar a Revision. Therefore, the impugned order, which has the affect on the result of the case, cannot be treated as an interlocutory order. Moreover, the trial Courts shall not close the doors particularly at the time of trial and allow the parties to adduce evidence. Of course, it is the mistake of the prosecution in not serving summons on the material witnesses in spite of specific directions issued by the Magistrate. For not serving summons on witnesses, the learned Magistrate ought to have taken steps against concerned Police Officials and ought not to have closed the prosecution evidence.

5. By closing the prosecution evidence, great injustice would be done to the victims. Justice is not only to be done to the accused but also to the victims. In view of the same, I consider that the impugned order has to be set aside.

6. Accordingly, the impugned order is set aside and the criminal petition is allowed. Consequently, Crl.M.P.No.463 of 2008 stands allowed. The learned Magistrate shall fix a date and issue summons to LWs 1 to 4 with a specific direction to the Police to comply with these directions and serve the summons and to see that summons are served on LWs 1 to 4 and that they are produced before the learned Magistrate on the date fixed by him. He may also inform the superior Police Officers with regard to this order to see that summons are served on LWs 1 to 4.

7. Subject to above observation, the Criminal Petition is allowed. 397. Calling for records to exercise powers of revision.

(1) The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order,- recorded or passed, and as to the regularity of any proceedings of such inferior Court, and may, when calling for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record. Explanation.- All Magistrates whether Executive or Judicial, and whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purposes of this sub- section and of section 398.

(2) The powers of revision conferred by sub- section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding.

(3) If an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them.2. Definitions. In this Code, unless the context otherwise requires,-

(a) " bailable offence" means an offence which is shown as bailable in the First Schedule, or which is made bailable by any other law for the time being in force; and" non- bailable offence" means any other offence;

(b) " charge" includes any head of charge when the charge contains more heads than one;

(c) " cognizable offence" means an offence for which, and" cognizable case" means a case in which, a police officer may, in

accordance with the First Schedule or under any other law for the time being in force, arrest without warrant;

(d) " complaint" means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report. Explanation.- A report made by a police officer in a case which discloses, after investigation, the commission of a non- cognizable offence shall be deemed to be a complaint; and the police officer by whom such report is made shall be deemed to be the complainant;

(e) " High Court" means,-

(i) in relation to any State, the High Court for that State;

(ii) in relation to a Union territory to which the juris- diction of the High Court for a State has been extended by law, that High Court;

(iii) in relation to any other Union territory, the highest Court of criminal appeal for that territory other than the Supreme Court of India;

(f) " India" means the territories to which this Code extends;

(g) " inquiry" means every inquiry, other than a trial, conducted under this Code by a Magistrate or Court;

(h) " investigation" includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf;

(i) " judicial proceeding" includes any proceeding in the course of which evidence is or may be legally taken on oath;

(j) " local jurisdiction", in relation to a Court or Magistrate, means the local area within which the Court or Magistrate may exercise all or any of its or his powers under this Code 1[ and such local area may comprise the whole of the State, or any part of the State, as the State Government may, by notification, specify];

999999. 1 Ins. by Act 45 of 1978, s. 2 (w. e, f, 18- 12- 1978 ).

(k) " metropolitan area" means the area declared, or deemed to be declared, under section 8, to be a metropolitan area;

(l) " non- cognizable offence" means an offence for which, and" non- cognizable case" means a case in which, a police officer has no authority to arrest without warrant;

(m) " notification" means a notification published in the Official Gazette;

(n) " offence" means any act or omission made punishable by any law for the time being in force and includes any act in respect of which a complaint may be made under section 20 of the Cattle- trespass Act, 1871 (1 of 1871 );

(o) " officer in charge of a police station" includes, when the officer in charge of the police station is absent from the station house or unable from illness or other cause to perform his duties, the police officer present at the station- house who is next in rank to such officer and is above the rank of constable or, when the State Government so directs, any other police officer so present;

(p) " place" includes a house, building, tent, vehicle and vessel;

(q) " pleader", when used with reference to any proceeding in any Court, means a person authorised by or under any law for the time being in force, to practise in such Court, and includes any other person appointed with the permission of the Court to act in such proceeding;

(r) " police report" means a report forwarded by a police officer to Magistrate under sub- section (2) of section 173;

(s) " police station" means any post or place declared generally or specially by the State Government, to be a police station, and includes any local area specified by the State Government in this behalf;

(t) " prescribed" means prescribed by rules made under this Code;

(u) " Public Prosecutor" means any person appointed under section 24, and includes any person acting under the directions of a Public Prosecutor;

(v) " sub- division" means a sub- division of a district;

(w) " summons- case" means a case relating to an offence, and not being a warrant- case;

(x) " warrant- case" means a case relating to an offence punishable with death, imprisonment for life or imprisonment for a term exceeding two years;

(y) words and expressions used herein and not defined but defined in the Indian Penal Code (45 of 1860 ) have the meanings respectively assigned to them in that Code.