Anil Mon Thomas and Another Vs. Central Bureau of Investigation, Represented by Its Retainer Counsel and Others - Court Judgment

SooperKanoon Citationsooperkanoon.com/947688
CourtKerala High Court
Decided OnOct-14-2011
Case NumberCrl.M.C.No.3449 of 2011, 3265 of 2011
Judge N.K. BALAKRISHNAN
AppellantAnil Mon Thomas and Another
RespondentCentral Bureau of Investigation, Represented by Its Retainer Counsel and Others
Cases Referred

1. State of M.P. v. Badri Yadav and another 2006(3) S.C.C.337
2. Johnson Vs. State of Kerala (1996 (2) KLT 1027).
3. Yakub Ismailbhai Patel v. State of Gujarat [(2004) 12 SCC 229].
4. Mishrilal and others v. State of M.P. and others [(2005) 10 SCC 701]

Excerpt:
1. criminal m.c. 3265 of 2011 is the petition filed by the witnesses under section 482 cr.p.c. to quash annexure-3 order dated 31.08.2011 passed by the iii additional sessions judge, ernakulam. criminal m.c. 3449/2011 is the petition filed by the second accused in that sessions case who also seeks quashment of annexure – 3 order dated 31.08.2011. the petitioner in criminal m.c.3265/11 was examined before the court below in the aforesaid sessions case as pw12. the charge sheet in that case was laid alleging that the accused murdered a boy after subjecting him to carnal intercourse against the order of nature. the accused therein was arrested on 10.02.2010. his bail application was dismissed by the trial court as well as by this court on several occasions. an observation was made by the trial court in criminal m.p.23/9/10 that is the trial was not completed before 10.02.2011 the accused could apply for trial again. but in the meanwhile, the bail application filed by him was already dismissed by this court on 15.10.2010 observing that the accused is not entitled to get bail considering the nature of the allegation, conduct of the parties, nature of injuries sustained, sentiments of the near relatives of the victim and such other facts. however, in view of the observation made by the trial court in criminal m.p.2390/11 the accused filed application for bail. it was allowed on 01.03.2011. 2. it was observed by the court below that the petitioner was examined on 12.01.2011 as pw12. he narrated the entire incident, the true facts, before the court in spite of the efforts made by the interested parties to persuade him to speak otherwise. it is also observed by the learned sessions judge that pw12 was thoroughly cross-examined by the defence counsel on 12.1.11. it could be discerned that as the evidence given by pw12 was against the accused, every effort was made by the accused subsequently also to win over that prosecution witness. pw13 was another witness who could be won over by the accused. pw13 also filed an application as criminal m.p. no.3160/11 before the trial court to recall her in order to retract the evidence given by her on oath before the court. an affidavit was also prepared for that purpose. it could be noticed by the learned sessions judge that a complaint was also filed by her (pw13) before the central police station on 24.1.11 alleging that the investigating officer had coerced and threatened her to give evidence before the court. 3. pw31, the investigating officer was examined in chief on 21.01.2011. he was not cross-examined on that date but sought adjournment for cross-examination. on 28/1/11, an application was filed by pw13 to allow her to be recalled. she remained absent. her application to recall herself for further examination was not allowed. another application was filed on behalf of the accused to recall pw13 as criminal m.p.3160/11 under section 311 of cr.p.c. both petitions were dismissed by the learned sessions judge as per common order dated 10.02.2011. after the prosecution evidence was closed, a list of the witnesses was filed by the accused on 17.02.2011 to examine them as defence witness. out of them the first witness was pw12 who had already been examined, cross-examined and re-examined in full. realising that the petition will not be allowed that witness list was subsequently withdrawn by the accused but another witness list was filed by the defence on 07.03.2011 in which pw13 was shown as the first defence witness and pw12 was shown as the 4th witness. the defence list was also subsequently withdrawn by the learned counsel for the accused. 4. it was then there was a turn of events. the accused was released on bail on 3.2.2011. on 09.03.2011, the defence witness list was again filed in which pw13 and pw12 figured as the 1st and 4th witnesses. the request made in that application was to recall them for further examination. that application was resisted by the prosecution relying upon the decision in state of m.p. v. badri yadav and another reported in 2006(3) s.c.c.337. the learned sessions judge allowed further cross-examination of pw13 as defence witness on 11.03.2011 and she was recalled on 18/03/2011. the learned sessions judge has observed that during the cross-examination of pw13 on 18.03.2011, she gave evidence as desired by the accused. it was also pointed out that certain unfounded allegations were made by pw13 against the investigating officer and the learned public prosecutor. 5. in the meanwhile, the respondent/cbi filed criminal m.c. no.942/11 before this court to quash the order of summoning pw13 and pw12 and to eschew that part of the evidence tendered by pw13 after she was recalled. the criminal m.c.942/11 was disposed of by this court with the following directions:- “(i) the acceptability of evidence that pw13 has tendered on her recall as requested by the defence shall be decided by the learned additional sessions judge having regard to the scope and ambit of sec.233 of the code is-a-vis sec.311 of the code and the decisions in state of m.p. vs. badri yadav and anr. and johnson vs. state of kerala (supra) (ii) so far as further examination of pw12 ordered by the learned additional sessions judge is concerned, it is directed that it shall be treated as further examination on recall under sec.311 of the code and subject to the scope of recall under the said provision as stated in johnson vs. state of kerala (supra). the acceptability of evidence that pw12 may give on such recall shall be decided by the learned sessions judge in the light of the observations made above and the decisions referred in clause (i) above.” 6. in the petition filed by pw12 so many allegations were made against the officers of cbi. the learned standing counsel appearing for the cbi would submit that a reading of the petition itself would make it clear that the entire allegations are unfounded and that it is a dexterous device, devised by an ingenious brain to give a colour of reality to the case attempted to be bolstered up and thereby to make a request for recalling the witnesses under sections 311 cr.p.c. the learned prosecutor would submit that an identification parade was conducted by the learned judicial first class magistrate, ernakulam during investigation and the accused was identified by the witness and later the statement of the witness was also recorded by the learned magistrate under section 164 cr.p.c. the contention that the witness was coerced or threatened by the officials of the cbi to identify the accused or to give statement before the magistrate under section 164 cr.p.c. cannot be accepted. at this stage it would be a misadventure to probe into the probity of the statement/evidence given by the witnesses and other matters with respect to which evidence has already been brought on record. these are matters to be analysed and appreciated after trial. but the earned public prosecutor would submit that these aspects have been highlighted here only to bring to the notice of the court, the way in which these applications have been filed and the circumstances which led to the filing of the successive applications. 7. the learned counsel for the witness and the learned counsel appearing for the accused (petitioner in criminal m.c.3449/2011) would in the same tune submit that section 311 of cr.p.c. does not preclude the court from recalling the witness who had already been examined. but it is indiscernible as to what promoted pw12 to come forward with a petition to recall himself to be examined after the accused was enlarged on bail and why he volunteered himself to be further cross-examined. the contention that it was only because of prick of conscience, the petition was filed is too hard to be digested, the learned standing counsel submits. the learned counsel for the accused and learned counsel for pw12 submit that as per the order passed by this court in criminal m.c.942/11 this court did not hold that pw12 should not be allowed to be recalled. what has been directed is that it would be subject to the scope of recall under section 311 and in the light of the division bench decision in johnson vs. state of kerala (1996 (2) klt 1027). 8. in johnson’s case cited supra, an application was filed by the accused under section 311 cr.p.c. to recall the witness for further cross-examination on the ground that “material evidence was not brought out while she was examined”. the learned sessions judge allowed that application and that witness was again cross-examined and then she made a volte face and disowned everything. that ultimately led the public prosecutor to cross-examine, declaring that witness hostile. in the background of that case it was held by the division bench: “the accused did not seek her further cross-examination under section 231 cr.p.c. but under section 311 cr.p.c., whose scope the sessions judge has, unfortunately, not cared to grasp. no doubt, there is power in the court under section 311 cr.p.c. to “recall or re-examine any person already examined”, but before this could be done, the court must be satisfied that the evidence appears to it “to be essential to just decision of the case”. in other words, it is not that the court can, for the asking, “recall and re-examine any person already examined.” it is not to be done as a matter of course or in a perfunctory manner, whenever a request is made therefore. the evidence of the witness, who is sought to be re-examined must be essential “for a just decision of the case”, and, whether it will or not, will depend upon the facts and circumstances of each case and the nature of the evidence that is sought to be brought in. no doubt, the court is given a discretion, that has to be exercised on sound judicial principles. it must be wary of attempt belatedly undertaken to decredit the witness. it must also be seen whether it is not to make the witness eat his/her words, after he or she had been won over. these and other matters must certainly engage the attention of the court, before permission is granted to re-examine a witness, who had already been examined. the sessions judge failed to realise that the petition was filed to re-examine pw 2 to undermine the prosecution case, having failed to do so in the first round” 9. relying on the observations made by the division bench the learned standing counsel for cbi would submit that it is for the sessions judge to find whether the evidence sought to be brought out on further examination is essential for a just decision of the case depending upon the facts and circumstances of the case. it is pointed out that the learned trial judge has pointed out certain factors to hold that the further examination of pw12 is not essential for the just decision of a case. therefore, though section 311 cr.p.c. enables the court to recall the witness for further examination, it cannot be done as a matter of course for the mere asking of it by the accused or by the witness himself. the learned counsel for the accused and the witness would submit that the respondent cannot assume that if the witness is recalled he would speak opposite to what was stated by him earlier. but that contention cannot be countenanced at all. the reason stated in the petition filed by the petitioner itself makes it clear that the sole purpose of further examination is to disown the entire statement given by him before the court. it is in this connection, at the risk of the repetition, it has to be stated that the witnesses were thoroughly examined and cross-examined and re-examined earlier. besides these witnesses had identified the accused in the identification parade and they had also given statement to the learned magistrate under section 164 cr.p.c. it was in tune with that statement, pw12 deposed before the trial court, the learned standing counsel for cbi submits. as the very purpose of recalling is to ‘eat the version’ already given when he was examined earlier, as can be discerned from the statement/affidavit filed by pw12 nothing more is required for the court to hold that the recalling is calculated to undermine the prosecution. 10. in state of m.p. v. badri yadav [(2006) 3 scc (cri) 337] the prosecution witnesses who were required to be summoned as defence witnesses under section 233(3) of the code were examined on 18.12.1990 and it was on 17.07.1995 that those witnesses were cited as defence witnesses. they were again examined as defence witnesses as d.ws.1 and 2. it was held by the apex court: “in this case the application under section 311 cr.p.c. for recalling pw 8 and pw 9 and re-examining them was rejected by the court on 2.9.1994. therefore, the question with regard to recalling pw 8 and pw 9 and re-examining them stood closed. there is no provision in the code of criminal procedure that by filing affidavit the witnesses examined as pws (pw 8 and pw 9 in this case) could be juxtaposed as dw1 and dw 2 and be examined as defence witnesses on behalf of the accused.” therefore, the standing counsel for c.b.i. submits that even filing affidavit by such witnesses subsequent to the closure of their evidence cannot be considered by the court. anyway, it is not necessary to delve deep into those aspects now. the question is whether p.w.12 can be allowed to be recalled at the instance of the witness himself and also at the instance of the accused, in a case where the witness had already been thoroughly cross-examined by the defence several months back. it was held by the apex court in badri yadav cited supra, that the power to summon any person as a witness or recall and re-examine any person already examined is the discretionary power of the court, in case, such evidence appears to it to be essential for a just decision of the case. the learned sessions judge has found that the further examination of p.w.12 is not essential or necessary for a just decision of the case. in badri yadav, it was further held by the apex court: “under section 233 cr.p.c. the accused can enter upon defence and he can apply for the issue of any process for compelling the attendance of any witness in his defence. the provisions of sub-section (3) of section 233 cannot be understood as compelling the attendance of any prosecution witness examined, cross-examined and discharged to be juxtaposed as a defence witness. in the present case pw 8 and pw 9 were juxtaposed as dw 1 and dw 2. this situation is not one what was contemplated by sub-section (3) of section 233 cr.p.c.” learned counsel for the accused would submit that petition now filed is under section 311 cr.p.c. the application filed under section 311 cr.p.c. to recall and re-examine the witness already examined by the witness was rejected by the learned sessions judge giving sound and valid reasons. 11. it was held in badri yadav cited supra: “when such frivolous and vexatious petitions are filed, a judge is not powerless. he should have used his discretionary power and should have refused relief on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice. in the present case, the witnesses were examined by the prosecution as eye witnesses on 18.12.1990, cross-examined and discharged. thereafter, an application under section 311 cr.p.c. was rejected. they were recalled purportedly in exercise of power under sub-section (3) of section 233 cr.p.c. and examined as dw 1 and dw 2 on behalf of the accused on 17.7.1995. this was clearly for the purpose of defeating the ends of justice, which is not permissible under the law.” the learned standing counsel for c.b.i. has also relied on the decision of the apex court in yakub ismailbhai patel v. state of gujarat [(2004) 12 scc 229]. that was a case where the evidence of p.w.1 who was an eye witness was relied upon by the trial court and also by the high court. that witness had identified the appellants therein and the co-accused in the court. after a long lapse of time he filed an affidavit stating that whatever he had stated before the court was not true and had done so at the instance of the police. in those facts and circumstances, it was held by the apex court: “38. significantly this witness, later on filed an affidavit, wherein he had sworn to the fact that whatever he had deposed before court as pw 1 was not true and it was so done at the instance of the police. 39. the averments in the affidavit are rightly rejected by the high court and also the sessions court. once the witness is examined as a prosecution witness, he cannot be allowed to perjure himself by resiling from the testimony given in court on oath. it is pertinent to note that during the intervening period between giving of evidence as pw 1 and filing of affidavit in court later, he was in jail in a narcotic case and that the accused persons were also fellow inmates there.” (underlined by me to supply emphasis). 12. it was observed by the learned trial judge that while crl.m.p.no.942/2011 was pending before this court, the accused gave up further examination of p.w.12 who was sought to be recalled and hence the defence evidence was closed and the case was posted for arguments. whatever that be, even otherwise in the light of the dictum laid down by the apex court in the decision cited supra, the court below was perfectly justified in rejecting the application since the very purpose of the application was to enable p.w.12 to perjure himself and to undermine the prosecution case. the court below has also taken note of the affidavit filed by p.w.12. on the face of it, it was seen to be false, making false allegations and imputations against the officials of the c.b.i. the acceptance of the request to recall p.w.12 was found to be legally impermissible in view of the decisions cited supra. as has been held in johnson v. state of kerala (1996(2) klt 1027) the court has to be satisfied that the evidence which is sought to be adduced by further examination is essential to a just decision of the case. here what is sought to be introduced is that the entire version given by him in evidence is absolutely false and that he was compelled to give such a statement as he was threatened or intimidated by the c.b.i. officials etc. such a course cannot be allowed. hence, i find that the court below was perfectly justified in rejecting the request made for recalling p.w.12 and to have his further examination by the defence; whether the petition is filed by the petitioner himself or by the accused in such circumstances makes no difference. as such the contention advanced by the learned counsel for the petitioner (a2) in crl.m.c.no.3449/2011 is also found to be devoid of any merit. since p.w.12 has filed an affidavit to the effect that he wants to completely resile from his previous statement (evidence) recorded by the court, it is explicitly clear that recalling of that witness is only to get the evidence recorded in court effaced and eschewed and thereby to sabotage prosecution. on his own showing p.w.12 has made it clear he wanted to ‘eat his word’ commit perjury. 13. the learned standing counsel for the c.b.i has also relied upon another decision of the apex court in mishrilal and others v. state of m.p. and others [(2005) 10 scc 701] wherein it was held: “in our opinion, the procedure adopted by the sessions judge was not strictly in accordance with law. once the witness was examined in-chief and cross-examined fully, such witness should not have been recalled and re-examined to deny the evidence he had already given before the court, even though that witness had given an inconsistent statement before any other court or forum subsequently.” in the light of what is stated above, i hold that the request to recall p.w.12 whether at the instance of himself or at the instance of the accused has to be turned down. it was rightly done by the court below. in the result, both these crl.m.cs. are dismissed.
Judgment:

1. Criminal M.C. 3265 of 2011 is the petition filed by the witnesses under Section 482 Cr.P.C. to quash Annexure-3 order dated 31.08.2011 passed by the III Additional Sessions Judge, Ernakulam. Criminal M.C. 3449/2011 is the petition filed by the second accused in that sessions case who also seeks quashment of Annexure – 3 order dated 31.08.2011. The petitioner in Criminal M.C.3265/11 was examined before the Court below in the aforesaid sessions case as PW12. The charge sheet in that case was laid alleging that the accused murdered a boy after subjecting him to carnal intercourse against the order of nature. The accused therein was arrested on 10.02.2010. His bail application was dismissed by the trial court as well as by this Court on several occasions. An observation was made by the trial court in Criminal M.P.23/9/10 that is the trial was not completed before 10.02.2011 the accused could apply for trial again. But in the meanwhile, the bail application filed by him was already dismissed by this court on 15.10.2010 observing that the accused is not entitled to get bail considering the nature of the allegation, conduct of the parties, nature of injuries sustained, sentiments of the near relatives of the victim and such other facts. However, in view of the observation made by the trial court in Criminal M.P.2390/11 the accused filed application for bail. It was allowed on 01.03.2011.

2. It was observed by the court below that the petitioner was examined on 12.01.2011 as PW12. He narrated the entire incident, the true facts, before the court in spite of the efforts made by the interested parties to persuade him to speak otherwise. It is also observed by the learned Sessions Judge that PW12 was thoroughly cross-examined by the defence counsel on 12.1.11. It could be discerned that as the evidence given by PW12 was against the accused, every effort was made by the accused subsequently also to win over that prosecution witness. PW13 was another witness who could be won over by the accused. PW13 also filed an application as Criminal M.P. No.3160/11 before the trial court to recall her in order to retract the evidence given by her on oath before the court. An affidavit was also prepared for that purpose. It could be noticed by the learned Sessions Judge that a complaint was also filed by her (PW13) before the central police station on 24.1.11 alleging that the investigating officer had coerced and threatened her to give evidence before the court.

3. PW31, the Investigating Officer was examined in chief on 21.01.2011. He was not cross-examined on that date but sought adjournment for cross-examination. On 28/1/11, an application was filed by PW13 to allow her to be recalled. She remained absent. Her application to recall herself for further examination was not allowed. Another application was filed on behalf of the accused to recall PW13 as Criminal M.P.3160/11 under Section 311 of Cr.P.C. Both petitions were dismissed by the learned Sessions Judge as per common order dated 10.02.2011. After the prosecution evidence was closed, a list of the witnesses was filed by the accused on 17.02.2011 to examine them as defence witness. Out of them the first witness was PW12 who had already been examined, cross-examined and re-examined in full. Realising that the petition will not be allowed that witness list was subsequently withdrawn by the accused but another witness list was filed by the defence on 07.03.2011 in which PW13 was shown as the first defence witness and PW12 was shown as the 4th witness. The defence list was also subsequently withdrawn by the learned counsel for the accused.

4. It was then there was a turn of events. The accused was released on bail on 3.2.2011. On 09.03.2011, the defence witness list was again filed in which PW13 and PW12 figured as the 1st and 4th witnesses. The request made in that application was to recall them for further examination. That application was resisted by the prosecution relying upon the decision in State of M.P. v. Badri Yadav and another reported in 2006(3) S.C.C.337. The learned Sessions Judge allowed further cross-examination of PW13 as defence witness on 11.03.2011 and she was recalled on 18/03/2011. The learned Sessions Judge has observed that during the cross-examination of PW13 on 18.03.2011, she gave evidence as desired by the accused. It was also pointed out that certain unfounded allegations were made by PW13 against the investigating officer and the learned Public Prosecutor.

5. In the meanwhile, the respondent/CBI filed Criminal M.C. No.942/11 before this court to quash the order of summoning PW13 and PW12 and to eschew that part of the evidence tendered by PW13 after she was recalled. The criminal M.C.942/11 was disposed of by this court with the following directions:-

“(i) The acceptability of evidence that PW13 has tendered on her recall as requested by the defence shall be decided by the learned Additional Sessions Judge having regard to the scope and ambit of Sec.233 of the Code is-a-vis Sec.311 of the Code and the decisions in State of M.P. Vs. Badri Yadav and Anr. and Johnson Vs. State of Kerala (supra)

(ii) So far as further examination of PW12 ordered by the learned Additional Sessions Judge is concerned, it is directed that it shall be treated as further examination on recall under Sec.311 of the Code and subject to the scope of recall under the said provision as stated in Johnson Vs. State of Kerala (supra). The acceptability of evidence that PW12 may give on such recall shall be decided by the learned Sessions Judge in the light of the observations made above and the decisions referred in clause (i) above.”

6. In the petition filed by PW12 so many allegations were made against the officers of CBI. The learned Standing Counsel appearing for the CBI would submit that a reading of the petition itself would make it clear that the entire allegations are unfounded and that it is a dexterous device, devised by an ingenious brain to give a colour of reality to the case attempted to be bolstered up and thereby to make a request for recalling the witnesses under Sections 311 Cr.P.C. The learned Prosecutor would submit that an identification parade was conducted by the learned Judicial First Class Magistrate, Ernakulam during investigation and the accused was identified by the witness and later the statement of the witness was also recorded by the learned Magistrate under Section 164 Cr.P.C. The contention that the witness was coerced or threatened by the officials of the CBI to identify the accused or to give statement before the Magistrate under Section 164 Cr.P.C. cannot be accepted. At this stage it would be a misadventure to probe into the probity of the statement/evidence given by the witnesses and other matters with respect to which evidence has already been brought on record. These are matters to be analysed and appreciated after trial. But the earned Public Prosecutor would submit that these aspects have been highlighted here only to bring to the notice of the Court, the way in which these applications have been filed and the circumstances which led to the filing of the successive applications.

7. The learned counsel for the witness and the learned counsel appearing for the accused (Petitioner in Criminal M.C.3449/2011) would in the same tune submit that Section 311 of Cr.P.C. does not preclude the court from recalling the witness who had already been examined. But it is indiscernible as to what promoted PW12 to come forward with a petition to recall himself to be examined after the accused was enlarged on bail and why he volunteered himself to be further cross-examined. The contention that it was only because of prick of conscience, the petition was filed is too hard to be digested, the learned Standing Counsel submits. The learned counsel for the accused and learned counsel for PW12 submit that as per the order passed by this court in Criminal M.C.942/11 this court did not hold that PW12 should not be allowed to be recalled. What has been directed is that it would be subject to the scope of recall under Section 311 and in the light of the Division Bench decision in Johnson Vs. State of Kerala (1996 (2) KLT 1027).

8. In Johnson’s case cited supra, an application was filed by the accused under section 311 Cr.P.C. to recall the witness for further cross-examination on the ground that “material evidence was not brought out while she was examined”. The learned Sessions Judge allowed that application and that witness was again cross-examined and then she made a volte face and disowned everything. That ultimately led the Public Prosecutor to cross-examine, declaring that witness hostile. In the background of that case it was held by the Division Bench:

“The accused did not seek her further cross-examination under Section 231 Cr.P.C. but under Section 311 Cr.P.C., whose scope the Sessions Judge has, unfortunately, not cared to grasp. No doubt, there is power in the court under Section 311 Cr.P.C. to “recall or re-examine any person already examined”, but before this could be done, the court must be satisfied that the evidence appears to it “to be essential to just decision of the case”. In other words, it is not that the court can, for the asking, “recall and re-examine any person already examined.” It is not to be done as a matter of course or in a perfunctory manner, whenever a request is made therefore. The evidence of the witness, who is sought to be re-examined must be essential “for a just decision of the case”, and, whether it will or not, will depend upon the facts and circumstances of each case and the nature of the evidence that is sought to be brought in. No doubt, the court is given a discretion, that has to be exercised on sound judicial principles. It must be wary of attempt belatedly undertaken to decredit the witness. It must also be seen whether it is not to make the witness eat his/her words, after he or she had been won over. These and other matters must certainly engage the attention of the court, before permission is granted to re-examine a witness, who had already been examined. The Sessions Judge failed to realise that the petition was filed to re-examine PW 2 to undermine the prosecution case, having failed to do so in the first round”

9. Relying on the observations made by the Division Bench the learned Standing Counsel for CBI would submit that it is for the Sessions Judge to find whether the evidence sought to be brought out on further examination is essential for a just decision of the case depending upon the facts and circumstances of the case. It is pointed out that the learned trial Judge has pointed out certain factors to hold that the further examination of PW12 is not essential for the just decision of a case. Therefore, though Section 311 Cr.P.C. enables the court to recall the witness for further examination, it cannot be done as a matter of course for the mere asking of it by the accused or by the witness himself. The learned counsel for the accused and the witness would submit that the respondent cannot assume that if the witness is recalled he would speak opposite to what was stated by him earlier. But that contention cannot be countenanced at all. The reason stated in the petition filed by the petitioner itself makes it clear that the sole purpose of further examination is to disown the entire statement given by him before the court. It is in this connection, at the risk of the repetition, it has to be stated that the witnesses were thoroughly examined and cross-examined and re-examined earlier. Besides these witnesses had identified the accused in the identification parade and they had also given statement to the learned Magistrate under Section 164 Cr.P.C. It was in tune with that statement, PW12 deposed before the trial court, the learned standing counsel for CBI submits. As the very purpose of recalling is to ‘eat the version’ already given when he was examined earlier, as can be discerned from the statement/affidavit filed by PW12 nothing more is required for the court to hold that the recalling is calculated to undermine the prosecution.

10. In State of M.P. v. Badri Yadav [(2006) 3 SCC (Cri) 337] the prosecution witnesses who were required to be summoned as defence witnesses under Section 233(3) of the Code were examined on 18.12.1990 and it was on 17.07.1995 that those witnesses were cited as defence witnesses. They were again examined as defence witnesses as D.Ws.1 and 2. It was held by the apex court:

“In this case the application under Section 311 Cr.P.C. for recalling PW 8 and PW 9 and re-examining them was rejected by the court on 2.9.1994. Therefore, the question with regard to recalling PW 8 and PW 9 and re-examining them stood closed. There is no provision in the Code of Criminal Procedure that by filing affidavit the witnesses examined as Pws (PW 8 and PW 9 in this case) could be juxtaposed as DW1 and DW 2 and be examined as defence witnesses on behalf of the accused.”

Therefore, the Standing Counsel for C.B.I. submits that even filing affidavit by such witnesses subsequent to the closure of their evidence cannot be considered by the court. Anyway, it is not necessary to delve deep into those aspects now. The question is whether P.W.12 can be allowed to be recalled at the instance of the witness himself and also at the instance of the accused, in a case where the witness had already been thoroughly cross-examined by the defence several months back. It was held by the apex court in Badri Yadav cited supra, that the power to summon any person as a witness or recall and re-examine any person already examined is the discretionary power of the court, in case, such evidence appears to it to be essential for a just decision of the case. The learned Sessions Judge has found that the further examination of P.W.12 is not essential or necessary for a just decision of the case. In Badri Yadav, it was further held by the apex court:

“Under Section 233 Cr.P.C. the accused can enter upon defence and he can apply for the issue of any process for compelling the attendance of any witness in his defence. The provisions of sub-section (3) of Section 233 cannot be understood as compelling the attendance of any prosecution witness examined, cross-examined and discharged to be juxtaposed as a defence witness. In the present case PW 8 and PW 9 were juxtaposed as DW 1 and DW 2. This situation is not one what was contemplated by sub-section (3) of Section 233 Cr.P.C.”

Learned counsel for the accused would submit that petition now filed is under Section 311 Cr.P.C. The application filed under Section 311 Cr.P.C. to recall and re-examine the witness already examined by the witness was rejected by the learned Sessions Judge giving sound and valid reasons.

11. It was held in Badri Yadav cited supra:

“When such frivolous and vexatious petitions are filed, a judge is not powerless. He should have used his discretionary power and should have refused relief on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice. In the present case, the witnesses were examined by the prosecution as eye witnesses on 18.12.1990, cross-examined and discharged. Thereafter, an application under Section 311 Cr.P.C. was rejected. They were recalled purportedly in exercise of power under sub-section (3) of Section 233 Cr.P.C. and examined as DW 1 and DW 2 on behalf of the accused on 17.7.1995. This was clearly for the purpose of defeating the ends of justice, which is not permissible under the law.”

The learned Standing Counsel for C.B.I. has also relied on the decision of the apex court in Yakub Ismailbhai Patel v. State of Gujarat [(2004) 12 SCC 229]. That was a case where the evidence of P.W.1 who was an eye witness was relied upon by the trial court and also by the High Court. That witness had identified the appellants therein and the co-accused in the court. After a long lapse of time he filed an affidavit stating that whatever he had stated before the court was not true and had done so at the instance of the police. In those facts and circumstances, it was held by the apex court:

“38. Significantly this witness, later on filed an affidavit, wherein he had sworn to the fact that whatever he had deposed before court as PW 1 was not true and it was so done at the instance of the police.

39. The averments in the affidavit are rightly rejected by the High Court and also the Sessions Court. Once the witness is examined as a prosecution witness, he cannot be allowed to perjure himself by resiling from the testimony given in court on oath. It is pertinent to note that during the intervening period between giving of evidence as PW 1 and filing of affidavit in court later, he was in jail in a narcotic case and that the accused persons were also fellow inmates there.” (underlined by me to supply emphasis).

12. It was observed by the learned trial judge that while Crl.M.P.No.942/2011 was pending before this court, the accused gave up further examination of P.W.12 who was sought to be recalled and hence the defence evidence was closed and the case was posted for arguments. Whatever that be, even otherwise in the light of the dictum laid down by the apex court in the decision cited supra, the court below was perfectly justified in rejecting the application since the very purpose of the application was to enable P.W.12 to perjure himself and to undermine the prosecution case. The court below has also taken note of the affidavit filed by P.W.12. On the face of it, it was seen to be false, making false allegations and imputations against the officials of the C.B.I. The acceptance of the request to recall P.W.12 was found to be legally impermissible in view of the decisions cited supra. As has been held in Johnson v. State of Kerala (1996(2) KLT 1027) the court has to be satisfied that the evidence which is sought to be adduced by further examination is essential to a just decision of the case. Here what is sought to be introduced is that the entire version given by him in evidence is absolutely false and that he was compelled to give such a statement as he was threatened or intimidated by the C.B.I. officials etc. Such a course cannot be allowed. Hence, I find that the court below was perfectly justified in rejecting the request made for recalling P.W.12 and to have his further examination by the defence; whether the petition is filed by the petitioner himself or by the accused in such circumstances makes no difference. As such the contention advanced by the learned counsel for the petitioner (A2) in Crl.M.C.No.3449/2011 is also found to be devoid of any merit. Since P.W.12 has filed an affidavit to the effect that he wants to completely resile from his previous statement (evidence) recorded by the court, it is explicitly clear that recalling of that witness is only to get the evidence recorded in court effaced and eschewed and thereby to sabotage prosecution. On his own showing P.W.12 has made it clear he wanted to ‘eat his word’ commit perjury.

13. The learned Standing Counsel for the C.B.I has also relied upon another decision of the apex court in Mishrilal and others v. State of M.P. and others [(2005) 10 SCC 701] wherein it was held:

“In our opinion, the procedure adopted by the Sessions Judge was not strictly in accordance with law. Once the witness was examined in-chief and cross-examined fully, such witness should not have been recalled and re-examined to deny the evidence he had already given before the court, even though that witness had given an inconsistent statement before any other court or forum subsequently.”

In the light of what is stated above, I hold that the request to recall P.W.12 whether at the instance of himself or at the instance of the accused has to be turned down. It was rightly done by the court below.

In the result, both these Crl.M.Cs. are dismissed.