08 August 2011
I THE COMPLAINANT HAS MADE AN APPLICATION U/S.311 OF Cr.P.C FRO RE-CALLING FOR RE-EXAMINATION.THE COMPLAINANT WANT TO BRING ON RECOED THE COPY OF DELIVERY CHALLAN & TAX INVOICE.(THIS 2 DOCUMENTS ARE NOT REFERRED IN THE COMPLAINT.) THIS SAID APPLICATION IS MOVED AFTER THE STATEMENT OF ACCUSED U/S.313 OF Cr.P.C. IS OVER AND THE MATTER IS ADJOURNED COUPLE OF TIMES FOR FINAL ARGUMENT. THE APPLICATION U/S.311 OF Cr.P.C. STANDS REJECTED. I FILED REVISION APPLICATION. ARE THERE ANY JUDGMENT WHICH STATES THAT SUCH REVISION APPLICATION CAN BE ALLOWED. PLEASE GIVE ME YOUR OPINION & REFERENCE ON IT. THANK YOU
08 August 2011
1)revision applications are allowed if it is due toversight that delivery challan was not filed .if on the other hand it tis to fill in lacuna of your case court may not allow reexamination .
2006 (4) KLT SN 55 (C.No. 76) M.P. Hon'ble Mr. Justice S.A. Naqvi Jagmohan Parashar v. State of M.P. Crl. R. No.290 of 2006 5.5.2006
Criminal P.C. 1973, Ss.311 & 397 -- Rejection of application under S.311 for recalling a prosecution witness for re-cross-examination is not an interlocutory order -- Revision is maintainable.
Impugned order rejecting the application under S.311 of Cr.P.C. for recalling a prosecution witness for re-cross-examination is not an interlocutory order reason being is that an accused has right to cross-examine prosecution witness and refusal to cross-examine prosecution witness substantially affects the right of the accused and prejudices the accused. Impugned order affects the right of the defence at particular stage of the trial to cross-examine a witness. Impugned order decides rights and liabilities of the parties regarding examination and re-cross-examination of prosecution witness. The order is not merely of a purely interim or temporary nature because it decides or touches the important rights or the liabilities of the parties.
1985 C.Cr.J.Note 88 Dissented from
1982 Crl.L.J.646; 1995 (4) Crimes 145; 1995 (1) Crimes 471; AIR 1980 SC 962; 1999 SCC (Crl.) 393; 1977 SC 2185 & 1968 SC 733 Referred to
2006 (3) KLT 930 Hon'ble Mr. Justice J.B. Koshy & Hon'ble Mr. Justice M. Sasidharan Nambiar Sree Venkatadeswara Enterprises v. Rajasekharan Nair Crl. R.P. No.1827/04 and Crl. M.C. No.1921 of 2004 Decided on 3rd August, 2006
Criminal P.C. 1973, S.311 -- Trial as provided under S.311 will not be terminated by closing the evidence of prosecution and defence or posting the case for judgment -- Will stand terminated only on pronouncing judgment either acquitting accused or awarding sentence after conviction.
True, S.353 which deals with judgment, under sub-s.1 provides that in every trial in any criminal court of original jurisdiction, the judgment shall be pronounced in open court by the presiding officer immediately after the termination of the trial or at some subsequent time of which notice shall be given to the parties or their pleaders. But termination of trial as provided under sub-s.1 cannot be understood as providing that trial of a criminal court ends before the judgment is pronounced. As stated earlier whether it is a sessions trial or a warrant trial or a summons trial pronouncing of judgment acquitting or convicting the accused forms part of the trial as contemplated under Chapters XVIII, XIX and XX. S.354 provides the language and contents of judgment. S.354 makes it abundantly clear that sentence also form part of the judgment. Therefore till the accused is sentenced, judgment is not complete. Till the judgment is pronounced trial continues. Therefore it is not possible to restrict the scope of trial provided under S.311 of the Code to a stage up to the closing of evidence or hearing of arguments and posting the case for judgment. Even if, after closing evidence for prosecution and defence, prosecution and defence were heard and case is posted for judgment to a specified future date, it cannot be said that before pronouncing judgment the trial is terminated. When S.311 provides that the power thereunder could be invoked at any stage of trial it is not possible to restrict it to the stage of closing of evidence or posting of the case for judgment. The power could be exercised till the trial is completed, provided for a just decision of the case it is essential. S.391 of the Code empowers the appellate court while dealing with any appeal under Chapter XXIX to admit additional evidence, if it thinks additional evidence is necessary. It empowers the appellate court to take such evidence itself or direct it to be taken by a subordinate court. On hearing the appeal, if the appellate court finds that to arrive at the truth and take a just decision a particular witness should have been examined or a witness recalled and examined S.311 would definitely enable the appellate court to recall the witness and examine him or summon and examine the witness. If that be the case one cannot say that S.311 of the Code cannot be invoked by the trial court at the pre judgment stage before the judgment is pronounced. Trial as provided under S.31 1 of the Code will not be terminated by closing the evidence of prosecution and defence or posting the case for judgment. Trial would stand terminated only on pronouncing the judgment either acquitting the accused or awarding the sentence after conviction. (paras. 10, 11 & 15)
10 August 2011
JSDN! There is no matter of re-examination of prosecution himself rather the querist being complainant/witness wants to put 2 documents on file which he didn't mention in the complaint. I think the application filed under section 311 Cr. P.C. is not applicable and an application seeking additional application was a proper remedy which was not exhausted by querist. He may do so if complaint is still pending.
Applicant/complainant instead of calling himself might have called some other examined witness conversant with those documents to be produced.
Anyway the only remedy now vests to further go for revision before High Court.
10 August 2011
This is not allowed , pl read the SC citation given below :-
CASE NO.: Appeal (crl.) 950 of 2006 PETITIONER: Sabitha Ramamurthy & Anr. RESPONDENT: R.B.S. Channabasavaradhya DATE OF JUDGMENT: 13/09/2006
"From the above, it is evident that in the complaint there are no averments against the appellants except stating in the title that they are partners of the firm. Learned counsel for the respondent complainants contended that a copy of the partnership deed was also filed which would show that the appellants were active in the business. No such document was filed with the complaint or made part thereof. The filing of the partnership deed later is of no consequence for determining the point in issue.