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Telangana High Court
Mohammed Vilayath Ali vs The State Of Telangana on 2 May, 2025
Author: N.Tukaramji
Bench: N.Tukaramji
THE HONOURABLE SRI JUSTICE N.TUKARAMJI
CRIMINAL PETITION NOs.16136, 16170 and 16171 of 2024
COMMON ORDER
Criminal Petition No.16136 of 2024 has been filed assailing the
order dated 02.12.2024 in Crl.M.P.No.118 of 2024 whereby the prayer
for issuance of summons to the present Chief/Central Public
Information Officer, Indian Security Press, Nashik Road, Maharashtra-
422101 to give evidence on behalf of the prosecution and to produce
documents in respect of information provided under RTI Act vide its
letter No.1363/RTI-274 dated 29.04.2011 along with its annexures i.e.
letter dated 21.11.2009 and invoice copy before the Court, has been
dismissed.
2. Criminal Petition No.16170 of 2024 has been filed aggrieved by
the dismissal order dated 02.12.2024 in Crl.M.P.No.117 of 2024 for
issuance of summons to the present Deputy Inspector General,
Registration and Stamps, Hyderabad and to direct him to give evidence
as prosecution witness and to produce the entire records in respect of
the report issued Memo No.RTI/1399/2024 dated 21.06.2014 along
with its enclosures.
3. Criminal Petition No.16171 of 2024 has been filed challenging
the dismissal order dated 02.12.2024 in Crl.M.P.No.53 of 2024 the
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petition filed under Section 311 of CrPC to recall PWs.1, 3, 4 and 5 for
the purpose of further chief examination and marking the left out
documents filed in the case.
4. As the above miscellaneous petitions were filed in C.C.No.223
of 2011 on the file of the Judicial Magistrate of First Class, Tandur,
Vikarabad District and as the reliefs prayed for are intertwined, these
petitions were heard together and are being determined in this
common order.
5. I have heard Ms.K.Annapurna Reddy, learned counsel for the
petitioners and Mr.Jithender Rao Veeramalla, learned Additional Public
Prosecutor appearing for the respondent No.1.
6. In spite of due service the respondent No.2/accused chose to
remain silent.
7. The relevant facts are that the petitioner/complainant has filed
police report alleging that the respondent No.2/accused created a
forged agreement of sale by manipulating non judicial stamp paper and
his signature to knock away the property admeasuring Ac.0.28 guntas
in Sy.No.10/E and Ac.0.29 guntas in Sy.No.10/EE situated at Saipur
village of Tandur mandal, Ranga Reddy District thereby to cause
wrongful loss to the petitioner. Basing on the report Crime No.226 of
2008 was registered and after due investigation charge sheet was laid
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and Calendar Case vide CC No.223 of 2011 has been registered for
the offences under Sections 420, 468 and 471 of IPC.
8. Learned counsel for the petitioner/de facto complainant would
submit that the respondent No.2/accused had created an agreement of
sale/Ex.P-5 dated 11.09.2006 by manipulating a non judicial stamp
paper bearing No.H 375588 and forged his signature on it. Further to
make out falsity of the document the petitioner/de facto complainant
pursued the RTI proceedings at Nashik Security Printing Press/Ex.P-2
and letter from Deputy Inspector General of Registrations and Stamps,
Hyderabad/Ex.P-3. The responses elicited that by the Serial number
the stamp paper was printed on 11.03.2008 and came into market on
21.05.2008. This fact clinches the impossibility of the execution of
agreement of sale on that stamp paper in 2006. However during trial
the prosecution failed to properly elicit these facts and got marked the
documents along with its annexures. Thus recall of examined
witnesses and summoning the officials concerned for properly brining
the fact on to record and for marking of the documents. Further
pleaded that rejection of the petition filed by the trial Court would cause
serious prejudice to the prosecution case and it would affect the
valuable rights of the de facto complainant. Further pleads that the
evidence, recall and examination of witnesses would clarify the facts
for effective adjudication. That apart, the respondent No.2/accused
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would have opportunity of cross examination. As such allowing the
petition will not cause any prejudice and in deed sub serve the justice.
Hence prayed for interference.
9. Learned counsel for the petitioner during deliberation fairly
admits that further examination of PWs.1, 3, 4 and 5 and marking of
relevant documents would be sufficient to prove and establish the
related fact. Thus prayed for considering the prayer in Crl.M.P.No.53 of
2024 (Crl.P.No.16171 of 2024).
10. Learned Additional Public Prosecutor would submit that the
calendar case is of the year 2011 and the witnesses were examined in
2022 and the de facto complainant came up with present petition in
2024. Further the prosecution got marked letter addressed to Nashik
Security Printing Press/Ex.P-2 and letter from the Deputy Inspector
General of Registration and Stamps, Hyderabad to the Commissioner,
Inspector General, Registrations and Stamps, Hyderabad/Ex.P-3 and
sworn statement of Abdul Qadeer/LW-5 as Ex.P-4 and the relevant
witnesses were examined and the evidence of stamp vendor/PW-5 and
stamp register/Sub-Registrar, Charminar are sufficient to establish the
pleaded aspect by the petitioner/de facto complainant. He fairly admits
that the reply said to have been issued by the Nashik Security Printing
Press not marked and the other witnesses could have been specifically
questioned to elicit the disputed fact. However the prayer for
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summoning present Chief/Central Public Information Officer, Indian
Security Press, Nashik and the present Deputy Inspector General,
Registration and Stamps, Hyderabad may not be required. Thus
prayed for passing the orders on merits.
11. I have perused the materials on record.
12. The specific pleading of the petitioner/de facto complainant is
that the non judicial stamp paper of 2008 has been used to show that
the agreement of sale was executed on 11.09.2006 and this fact sets
the seal on the fact of fabrication of the document. Further examining
the PWs.1, 3, 4 and 5 on this specific aspect and getting marked the
left out documents on file is necessary to prove this foundational
aspect. In the impugned order the trial Court declined the prayer on
the ground of belated filing of the petition and the effort of the petitioner
to bring the annexures of Ex.P-2 which was refused by the Court and
the same was affirmed by this Court vide Criminal Petition No.72 of
2022.
13. It is pertinent to note that Section 311 of CrPC empowers the
Court to summon, recall and re-examine the witnesses already
examined to ensure just decision by enabling it to access and relevant
evidence.
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14. The Hon’ble Supreme Court in Rajaram Prasad Yadav v. State
of Bihar and another – 2013(14) SCC 461 considering the settled
positions enumerated principles to be borne in mind by the Courts
while dealing with an application under Section 311 of CrPC. For better
appreciation, the relevant para No.23 is extracted as hereunder:
“23. From a conspectus consideration of the above decisions, while
dealing with an application under Section 311 Cr.P.C. read along
with Section 138 of the Evidence Act, we feel the following principles
will have to be borne in mind by the Courts:
a) Whether the Court is right in thinking that the new evidence is
needed by it? Whether the evidence sought to be led in under
Section 311 is noted by the Court for a just decision of a case?
b) The exercise of the widest discretionary power under Section
311 Cr.P.C. should ensure that the judgment should not be rendered
on inchoate, inconclusive speculative presentation of facts, as
thereby the ends of justice would be defeated.
c) If evidence of any witness appears to the Court to be essential to
the just decision of the case, it is the power of the Court to summon
and examine or recall and re-examine any such person.
d) The exercise of power under Section 311 Cr.P.C. should be
resorted to only with the object of finding out the truth or obtaining
proper proof for such facts, which will lead to a just and correct
decision of the case.
e) The exercise of the said power cannot be dubbed as filling in a
lacuna in a prosecution case, unless the facts and circumstances of
the case make it apparent that the exercise of power by the Court
would result in causing serious prejudice to the accused, resulting in
miscarriage of justice.
f) The wide discretionary power should be exercised judiciously and
not arbitrarily.
g) The Court must satisfy itself that it was in every respect essential
to examine such a witness or to recall him for further examination in
order to arrive at a just decision of the case.
h) The object of Section 311 Cr.P.C. simultaneously imposes a duty
on the Court to determine the truth and to render a just decision.
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i) The Court arrives at the conclusion that additional evidence is
necessary, not because it would be impossible to pronounce the
judgment without it, but because there would be a failure of justice
without such evidence being considered.
j) Exigency of the situation, fair play and good sense should be the
safe guard, while exercising the discretion. The Court should bear in
mind that no party in a trial can be foreclosed from correcting errors
and that if proper evidence was not adduced or a relevant material
was not brought on record due to any inadvertence, the Court should
be magnanimous in permitting such mistakes to be rectified.
k) The Court should be conscious of the position that after all the trial
is basically for the prisoners and the Court should afford an
opportunity to them in the fairest manner possible. In that parity of
reasoning, it would be safe to err in favour of the accused getting an
opportunity rather than protecting the prosecution against possible
prejudice at the cost of the accused. The Court should bear in mind
that improper or capricious exercise of such a discretionary power,
may lead to undesirable results.
l) The additional evidence must not be received as a disguise or to
change the nature of the case against any of the party.
m) The power must be exercised keeping in mind that the evidence
that is likely to be tendered, would be germane to the issue involved
and also ensure that an opportunity of rebuttal is given to the other
party.
n) The power under Section 311 Cr.P.C. 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 care, caution
and circumspection. The Court should bear in mind that fair trial
entails the interest of the accused, the victim and the society and,
therefore, the grant of fair and proper opportunities to the persons
concerned, must be ensured being a constitutional goal, as well as a
human right.
15. Thus by the guidelines it shall be held that the power under
Section 311 of CrPC is wider and has to be exercised to meet the
endowed responsibility on the Court to determine the truth and to reach
just decision. The Court shall be cautious in making a balance between
reaching just and correct decision and miscarriage of justice. Further
in determining the petition, the Court must consider whether non
allowance of the examination/evidence prayed for would be a failure of
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justice. Thus the power under Section 311 of CrPC has to be invoked
to meet the ends of justice balancing the interests of accused and
victim.
16. In the instant case, the petitioner is seeking recall of already
examined witnesses for further examination to specifically make out the
fact of printing and sale of non judicial stamp in the year 2008. Though
the witnesses were already examined and considering the essentiality
of the fact to render just decision, allowing the petitioner for recall and
examining PWs.1, 3, 4 and 5 is found proper to meet the ends of
justice.
17. For the aforesaid, these criminal petitions are answered as
follows:
i) Crl.P.Nos.16136 and 16170 of 2024 are dismissed as not
pressed.
ii) The impugned order dated 02.12.2024 in Crl.M.P.No.53 of
2024 in C.C.No.223 of 2011 on the file of the Judicial
Magistrate of First Class, Tandur, Vikarabad District is set
aside and the witnesses i.e. PWs.1, 3, 4 and 5 are recalled
for further chief examination and to mark left out material
documents. Accordingly, Crl.P.No.16171 of 2024 stands
allowed.
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iii) The trial Court shall fix the schedule for examining the
recalled witnesses PWs.1,3, 4 and 5 within a time frame of
four weeks from the date of receipt of a copy of this order.
The witnesses shall be chief examined by the prosecution
with the assistance of the petitioner on the aspect of the
origin and sale of the disputed non judicial stamp and the
defence shall cross examine the witnesses on the same day,
saving the exceptional circumstances beyond control.
iv) Allowing of the petition shall not be construed as setting
aside the orders of the trial Court in Crl.M.P.No.338 of 2021
and the order in Crl.P.No.72 of 2022 in regard to the
documents considered therein. Accordingly ordered.
Pending miscellaneous applications, if any, shall stand closed.
_______________
N.TUKARAMJI, J
Date:02.05.2025
ccm
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