an application under Section 311 could not be rejected on the sole ground that the case had been pending for an inordinate amount of time (ten years there). Rather, it noted that “the length/duration of a case cannot displace the basic requirement of ensuring the just decision after taking all the necessary and material evidence on record. In other words, the age of a case, by itself, cannot be decisive of the matter when a prayer is made for examination of a material witness”. In the present case, the prosecution has sought to produce a copy of the relevant document pertaining to the approval granted by the Board of TANGEDCO on the record and to have it marked as an exhibit in the evidence, for which purpose PWs 1 and 11 were sought to be recalled. In its applications, the prosecution noted that these witnesses were required to mark the relevant document, which was crucial for the decision of the case since the respondent had taken a defense that this document had been signed by the Chairman of TANGEDCO without the Board’s approval. In explaining the delay in filing the applications, the prosecution noted that it was due to the transfer of Special Public Prosecutor who was conducting the case Undoubtedly, we note that the respondent must have an opportunity to crossexamine these witnesses. Hence, we are not expressing any view on the merits of the submissions which were urged on behalf of the respondent by Mr Senthil Jagadeesan, in regard to the depositions of PWs 1 and 11, since these will have to be evaluated by the learned trial Judge. However, we are of the view that the rejection of the applications for recall under Section 311 was not in order. We accordingly allow the appeals and set aside the impugned judgment and order of the High Court dated 24 June 2019. The applications filed by the prosecution for recall of PWs 1 and 11 shall accordingly stand allowed. The respondent would also be at liberty to cross-examine these witnesses
1
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
Criminal Appeal Nos 231-232 of 2021
(Arising out of SLP (Crl) Nos 3104-3105 of 2020)
The State represented by the
Deputy Superintendent of Police .... Appellant(s)
Versus
Tr N Seenivasagan ....Respondent(s)
J U D G M E N T
Dr Dhananjaya Y Chandrachud, J
1 Leave granted.
2 These appeals arise out of a judgment and order of a learned Single Judge of the
High Court of Judicature at Madras dated 24 June 2019.
3 The appellant is the State represented by the Deputy Superintendent of Police,
Vigilance and Anti-Corruption, Chennai City–IV. On 13 July 2010, FIR No 14 of
2010 was registered against the respondent (Accused No 1) and another
accused (who has since passed away) under the Prevention of Corruption Act,
19881
. The respondent was a Chief Engineer in the Tamil Nadu Generation and
Distribution Company Limited2
. It is alleged that he demanded a bribe for
revoking the suspension of an employee. On 28 June 2011, the Chairman cum
1 “PC Act”
2 “TANGEDCO”
2
Managing Director of TANGEDCO accorded sanction to prosecute the respondent
and the co-accused under the PC Act. On behalf of the appellant, it has been
urged that this sanction was accorded by the Chairman on behalf of the Board of
TANGEDCO.
4 On the completion of the investigation, the investigating officer filed a final
report under Section 173(2) of the Code of Criminal Procedure 19733
on 27 July
2011 against the respondent and the co-accused under Sections 7, 12 and 13(2)
read with Section 13(1)(d) of the PC Act. During the trial in CC No. 9 of 2011, the
prosecution examined witnesses PW-1 to PW-12, and through them marked
Exhibits P-1 to P-11 and MO-1 to MO-10.
5 Insofar as it is material for this matter, it is necessary to note that PW-1, the
Chairman of TANGEDCO, was examined in-Chief on 6 June 2013. PW-1 was
cross-examined by the respondent on 18 March 2014, and was re-called on 17
July 2014 at the behest of the co-accused for further cross-examination. The
examination in-Chief of PW-11, the Deputy Superintendent of Police, was
recorded on 1 February 2017. Thereafter, he was cross-examined on 13
February 2017, and subsequently re-called and cross-examined again on 27
February 2017. The evidence from the prosecution’s side was closed on 31
October 2017, and the case was posted for final arguments.
6 The arguments on behalf of the prosecution commenced on 7 December 2017.
The arguments of the defense commenced on 16 December 2017, and
concluded on 16 February 2018. The case was posted for the final submissions
of the prosecution on 27 February 2018, and appears to have been adjourned on
thirty-three occasions until 26 October 2018. In the meantime, the presiding
officer was transferred on 25 June 2018, as a result of which the arguments
3 “CrPC”
3
could not be finally concluded. Even after 26 October 2018, the case was
adjourned on thirty-five occasions, following which it was posted on 11 March
2019 for the prosecution to submit its written arguments.
7 However, on 11 February 2019, the prosecution filed Criminal MP Nos 224 and
225 of 2019 under Section 311 of CrPC for recalling PWs 1 and 11, to enable the
appellant to mark as an exhibit in evidence, the approval dated 26 June 2011 of
the Board of TANGEDCO for sanctioning the prosecution of the respondent and
the co-accused. The respondent opposed these applications. The Trial Judge
passed an order dated 19 February 2019 by which the applications under
Section 311 were dismissed.
8 The prosecution thereafter filed Criminal OP Nos 7694 and 7816 of 2019 under
Section 482 of CrPC before the High Court challenging this order. These have
been dismissed by the High Court by the impugned order dated 24 June 2019.
After noting the earlier evidence of PWs 1 and 11, the High Court held that the
applications had been filed by the prosecution belatedly. The appellant has,
thus, travelled to this Court.
9 On 9 July 2020, this Court passed the following order, inter alia, condoning the
delay and recording the submissions urged on behalf of the appellant:
“1 Delay condoned.
2 Mr M Yogesh Kanna, appearing on behalf of the petitioner
submits that Annexure P-4 to the Special Leave Petition,
which is the order of sanction dated 28 June 2011, has
been marked as Exhibit P-1 in the trial. Referring to the
contents of the order of sanction, learned counsel
submits that there is a reference in the order to the fact
that the appointing authority is the Board and that the
papers for grant of sanction had been placed before the
Board. Learned counsel submitted that the prosecution
only seeks to mark as an exhibit the proceedings which
took place before the Board.
4
3 Issue notice, returnable in six weeks.
4 Dasti, in addition, is permitted.
5 In the meantime, for a period of eight weeks from today,
there shall be a stay of the further proceedings in the
pending trial, namely, CC No 9 of 2011, pending before
the Special Judge, Special Court for the Cases under
Prevention of Corruption Act at Chennai.”
10 In pursuance of the order issuing notice, Mr Senthil Jagadeesan, learned counsel,
has entered appearance on behalf of the respondent and has filed a counteraffidavit.
11 Mr M Yogesh Kanna, learned counsel appearing on behalf of the appellant,
submits that the order of sanction dated 28 June 2011 has already been marked
as Exhibit P-1 during the course of the trial. Essentially, the submission of the
prosecution is that the purpose of recalling PWs 1 and 11 was to place on the
record and mark in evidence a copy of the reference which was made to the
Board of TANGEDCO, where the respondent was employed as a Chief Engineer.
Learned counsel submits that having due regard to the ambit of Section 311, the
applications ought to have been allowed, particularly in view of the fact that the
final arguments could not be concluded in view of the intervening transfer of the
judicial officer and the case is still pending. It was further submitted that having
regard to the nature and scope of the proceedings which arise out of the
provisions of the PC Act, it would be appropriate and in the interests of justice if
liberty is granted to the prosecution to place the relevant document pertaining
to the approval granted by the Board of TANGEDCO on the record.
12 On the other hand, Mr Senthil Jagadeesan has drawn the attention of the Court
to the depositions of PW-1 and PW-11. Adverting also to the purported Board
Minutes at Annexure P-2 (a photocopy of which has been filed at Annexure R-2 of
5
the counter-affidavit), it has been submitted that the document, as a matter of
fact, does not have the signatures of the members of the Board. Moreover, it
has been urged that PW-1, who is the Chairman of TANGEDCO, during the course
of his deposition, submitted that he had granted sanction for the prosecution of
the respondent and the co-accused without reference to the Board, and that he
was entitled to do so in accordance with the provisions of the PC Act.
13 In our view, having due regard to the nature and ambit of Section 311 of the
CrPC, it was appropriate and proper that the applications filed by the prosecution
ought to have been allowed. Section 311 provides that any Court may, at any
stage of any inquiry, trial or other proceedings under the CrPC, summon any
person as a witness, or examine any person in attendance, though not
summoned as a witness, or recall and re-examine any person already examined
and the Court shall summon and examine or recall and re-examine any such
person “if his evidence appears to it to be essential to the just decision of the
case”. The true test, therefore, is whether it appears to the Court that the
evidence of such person who is sought to be recalled is essential to the just
decision of the case.
14 In Manju Devi v State of Rajasthan4
, a two-Judge bench of this Court noted
that an application under Section 311 could not be rejected on the sole ground
that the case had been pending for an inordinate amount of time (ten years
there). Rather, it noted that “the length/duration of a case cannot displace the
basic requirement of ensuring the just decision after taking all the necessary and
material evidence on record. In other words, the age of a case, by itself, cannot
be decisive of the matter when a prayer is made for examination of a material
witness”. Speaking for the Court, Justice Dinesh Maheshwari expounded on the
principles underlying Section 311 in the following terms:
4 (2019) 6 SCC 203
6
“10. It needs hardly any emphasis that the discretionary
powers like those under Section 311 CrPC are essentially
intended to ensure that every necessary and appropriate
measure is taken by the Court to keep the record straight
and to clear any ambiguity insofar as the evidence is
concerned as also to ensure that no prejudice is caused
to anyone. The principles underlying Section 311 CrPC
and amplitude of the powers of the court thereunder
have been explained by this Court in several decisions
[ Vide Mohanlal Shamji Soni v. Union of India, 1991 Supp
(1) SCC 271 : 1991 SCC (Cri) 595; Zahira Habibulla H.
Sheikh v. State of Gujarat, (2004) 4 SCC 158 : 2004 SCC
(Cri) 999; Mina Lalita Baruwa v. State of Orissa, (2013) 16
SCC 173 : (2014) 6 SCC (Cri) 218; Rajaram Prasad Yadav
v. State of Bihar, (2013) 14 SCC 461 : (2014) 4 SCC (Cri)
256 and Natasha Singh v. CBI, (2013) 5 SCC 741 : (2013)
4 SCC (Cri) 828] . In Natasha Singh v. CBI [Natasha Singh
v. CBI, (2013) 5 SCC 741 : (2013) 4 SCC (Cri) 828] ,
though the application for examination of witnesses was
filed by the accused but, on the principles relating to the
exercise of powers under Section 311, this Court
observed, inter alia, as under: (SCC pp. 746 & 748-49,
paras 8 &15)
“8. Section 311 CrPC empowers the court to summon a
material witness, or to examine a person present at “any
stage” of “any enquiry”, or “trial”, or “any other
proceedings” under CrPC, or to summon any person as a
witness, or to recall and re-examine any person who has
already been examined if his evidence appears to it, to
be essential to the arrival of a just decision of the case.
Undoubtedly, CrPC has conferred a very wide
discretionary power upon the court in this respect, but
such a discretion is to be exercised judiciously and not
arbitrarily. The power of the court in this context is very
wide, and in exercise of the same, it may summon any
person as a witness at any stage of the trial, or other
proceedings. The court is competent to exercise such
power even suo motu if no such application has been
filed by either of the parties. However, the court must
satisfy itself, that it was in fact essential to examine such
a witness, or to recall him for further examination in
order to arrive at a just decision of the case.
***
15. The scope and object of the provision is to enable the
court to determine the truth and to render a just decision
after discovering all relevant facts and obtaining proper
proof of such facts, to arrive at a just decision of the
case. Power must be exercised judiciously and not
capriciously or arbitrarily, as any improper or capricious
exercise of such power may lead to undesirable results.
An application under Section 311 CrPC must not be
allowed only to fill up a lacuna in the case of the
7
prosecution, or of the defence, or to the disadvantage of
the accused, or to cause serious prejudice to the defence
of the accused, or to give an unfair advantage to the
opposite party. Further, the additional evidence must not
be received as a disguise for retrial, or to change the
nature of the case against either of the parties. Such a
power must be exercised, provided that the evidence
that is likely to be tendered by a witness, is germane to
the issue involved. An opportunity of rebuttal however,
must be given to the other party. The power conferred
under Section 311 CrPC must therefore, be invoked by
the court only in order to meet the ends of justice, for
strong and valid reasons, and the same must be
exercised with great caution and circumspection. The
very use of words such as “any court”, “at any stage”, or
“or any enquiry, trial or other proceedings”, “any person”
and “any such person” clearly spells out that the
provisions of this section have been expressed in the
widest possible terms, and do not limit the discretion of
the court in any way. There is thus no escape if the fresh
evidence to be obtained is essential to the just decision
of the case. The determinative factor should therefore
be, whether the summoning/recalling of the said witness
is in fact, essential to the just decision of the case.”
(emphasis in original)”
15 In the present case, the prosecution has sought to produce a copy of the
relevant document pertaining to the approval granted by the Board of
TANGEDCO on the record and to have it marked as an exhibit in the evidence,
for which purpose PWs 1 and 11 were sought to be recalled. In its applications,
the prosecution noted that these witnesses were required to mark the relevant
document, which was crucial for the decision of the case since the respondent
had taken a defense that this document had been signed by the Chairman of
TANGEDCO without the Board’s approval. In explaining the delay in filing the
applications, the prosecution noted that it was due to the transfer of Special
Public Prosecutor who was conducting the case. The relevant parts of the
prosecution’s application are reproduced below:
“It is submitted that the case was conducted by
Additional Legal Adviser Tr.T.Panneerselvam and he was
transferred as Deputy Director of Prosecution,
Kancheepuram District and hence Tr.Pandiarajan, ADLA,
8
HQ, DVAC, Chennai is posted as Special Public Prosecutor
for conduction this case.
…
It is submitted that the Exhibit.Pl, the order of sanction
itself shows that the order was issued by the Board. But
the defence has taken a stand that the order was not
issued by the Board and the same was issued by the
Chairman who was not competent person to accord the
sanction.
It is submitted that at the time of filing the charge sheet
the Investigation Officer has obtained the Approval Order
of the Board and not submitted it before this Hon'ble
Court.
It is submitted that in support of the contention of the
prosecution it is necessary to mark the documents
pertaining to the Board of TANGEDCO to satisfy this
Hon'ble Court for just decision of the case that the
sanction was accorded in accordance with law and rules
and regulations stated in the TANGEDCO.
…
It is submitted that recalling PW1 and PW11 for marking
the documents pertaining to the Sanction cannot be
termed as lacuna or to fill up the gap. But only to help
this Hon'ble Court for arriving just decision of the case.”
16 Undoubtedly, we note that the respondent must have an opportunity to crossexamine these witnesses. Hence, we are not expressing any view on the merits
of the submissions which were urged on behalf of the respondent by Mr Senthil
Jagadeesan, in regard to the depositions of PWs 1 and 11, since these will have
to be evaluated by the learned trial Judge. However, we are of the view that the
rejection of the applications for recall under Section 311 was not in order. We
accordingly allow the appeals and set aside the impugned judgment and order of
the High Court dated 24 June 2019. The applications filed by the prosecution for
recall of PWs 1 and 11 shall accordingly stand allowed. The respondent would
also be at liberty to cross-examine these witnesses.
9
17 Having regard to the pendency of the trial for a long period of time, we order
and direct that the trial be completed by 31 July 2021.
18 Pending application, if any, stands disposed of.
…………...…...….......………………........J.
[Dr Dhananjaya Y Chandrachud]
…..…..…....…........……………….…........J.
[M R Shah]
New Delhi;
March 01, 2021
-S-
10
ITEM NO.4 Court 6 (Video Conferencing) SECTION II-C
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (Crl.) Nos.3104-3105/2020
(Arising out of impugned final judgment and order dated 24-06-2019
in CRLOP No. 7694/2019 and CRLOP No. 7816/2019 passed by the High
Court of Judicature at Madras)
THE STATE REPRESENTED BY THE
DEPUTY SUPERINTENDENT OF POLICE Petitioner(s)
VERSUS
TR. N. SEENIVASAGAN Respondent(s)
(WITH I.R., IA No. 54976/2020 - EXEMPTION FROM FILING O.T.)
Date : 01-03-2021 These petitions were called on for hearing today.
CORAM : HON'BLE DR. JUSTICE D.Y. CHANDRACHUD
HON'BLE MR. JUSTICE M.R. SHAH
For Petitioner(s) Mr. M. Yogesh Kanna, AOR
Mr. Raja Rajeshwaran S, Adv.
Mr. Aditya Chadha, Adv.
Ms. Uma Prasuna Bachu, Adv.
For Respondent(s) Mr. Senthil Jagadeesan, AOR
Ms. Mrinal Kanwar, Adv.
UPON hearing the counsel the Court made the following
O R D E R
1 Leave granted.
2 The appeals are allowed in terms of the signed reportable judgment.
3 Pending application, if any, stands disposed of.
(SANJAY KUMAR-I) (SAROJ KUMARI GAUR)
AR-CUM-PS COURT MASTER
(Signed reportable judgment is placed on the file)
