PAUL Vs. STATE

JUDGEMENT

(1.) THE petitioner is the de facto complainant in Crime no. 44 of 1980 on the file of Mattancherry Police Station. THE learned magistrate discharged the accused, in that case without recording any evidence. Against the said order the petitioner filed Crl. R P. 78 of 1981 which was allowed by this court and the matter was remanded.

(2.) AFTER remand some witnesses were examined on behalf of the prosecution. AFTER the closing of evidence of prosecution, the accused were questioned under S. 313 of the Code of Criminal Procedure and the case was posted for defence evidence on 27-2-1984. The 6th accused then produced Ext. D1 an order of stay passed by this court on 22-2-1980. Thereupon the A. P. P. II. Cochin filed an application for reopening the evidence for the purpose of enabling the prosecution to mark the final order of the High Court in CRP No. 2781 and the judgment of the Munsiff's court in OS No. 105 of 1980 The learned Magistrate dismissed the application. It is aggrieved by the said order that the above crl. MC was filed.

(3.) THE Supreme Court in Jamatraj Kawalji Govani v. THE state of Maharashtra (AIR 1968 SC 178) considered the scope of S. 540 of Code of criminal Procedure 1898 corresponding to S. 311 of the new Code and made the following observation: "as the section stands there is no limitation on the power of the court arising from the stage to which the trial may have reached, provided court is bonafide of the opinion that for the just decision of the case, the steps may be taken It is clear that the requirement of just decision of the case does not limit the action to something in the interest of the accused only. THE action may equally benefit the prosecution. THEre are however, two aspects of the matter which must be distinctly kept apart. THE first is that the prosecution cannot be allowed to rebut the defence evidence unless the prisoner brings forward something suddenly and unexpectedly. " THEir Lordships of the Supreme Court then proceeded to consider the dictum laid down by Tinadal C J. in Reg. v. Frost. (1840) St. Tr. (NS) 85 at p. 86, where the following passage occurs: "there is no doubt that the general rule is that where the Crown begins its case like a plaintiff in a civil suit, they cannot afterwards support their case by calling fresh witnesses, because they are met by certain evidence that contradicts it. THEy stand or fall by the evidence they have given. THEy must close their case before the defence begins; but if any matter arises ex improvise, which no human ingenuity can foresee, on the part of a defendant in a civil suit or a prisoner in a criminal case, there seems to me no reason why that matter which so arose ex improvise may not be answered by contrary evidence on the part of the Crown". After noticing the above observation their Lordships of the Supreme Court stated thus: "there is however the other aspect namely of the power of the Court which is to be exercised to reach a just decision. This power is exercisable at any time and the Code of Criminal Procedure clearly so states. " THEir Lordships then made the following observations: "it is difficult to limit the power under our Code to cases which involve something arising ex improvise which no human ingenuity could foresee in the course of the defence. Our code does not make this a condition of the exercise of the power and it is not right to embark on judicial legislation. Cases that go that far are of course not quite right. Indeed they could be decided on fact because it can always be seen whether the new matter is strictly necessary for a just decision and not intended to give an unfair advantage to one of the rival sides. Even in England where the rule in Dora Harris case, 1927-2 KB 587 obtains, the powers of the court have not been held to be wrongly exercised, when fresh evidence has been let in for a just decision In Willian Sullivan, (1922) 16 Criminal Appeal Rep. 112, rebutting evidence was held to be properly called when the accused put forward a suggestion which could not have been foreseen and in John Mekenna (1956) 40 crl. Appeal Rep. 65, it was held that a judge had complete discretion whether a witness should be recalled and that the Court of Criminal Appeal would not interfere unless it was made to appear that injustice had been caused. " After discussing different aspects, their Lordships ultimately put the law as follows: "it would appear that in our criminal jurisdiction statutory law confers a power in absolute terms to be exercised at any stage of the trial to summon a witness or examine one present in court or to recall a witness already examined, and makes this the duty and obligation of the court provided the just decision of the case demands it. In other words, where the court exercises the power under the second part, the inquiry cannot be whether the accused has brought anything suddenly or unexpectedly but whether the court is right in thinking'hat the new evidence is needed by it for a just decision of case. If the court has acted without the requirements of a just decision, the action is open to criticism but if the court's action is supportable as being in aid of a just decision the action cannot be regarded as exceeding the jurisdiction. "