Prosecution Can Be Allowed To Produce Evidence In Addition To Materials Submitted With Final Report If They're Necessary For Fair Trial: Kerala HC

The Kerala High Court has observed that the Court may permit the prosecution to tender such evidence which appears to be essential to decide the case in a just manner, even after the commencement of the trial. 

Justice A. Badharudeen observed that:

It is true that the prosecution is duty bound to place all the evidence to be tendered along with the final report and copies thereof shall be furnished to the accused, as mandated under Section 208 Cr.P.C, in a Sessions trial.

However, in an appropriate case where the evidence sought to be tendered by the prosecution is absolutely necessary to decide the case fairly and the Court is of the opinion that the said evidence is essential for the just decision of the Court, the Court observed that:

...the said evidence also can be permitted to be tendered and there is no hard and fast rule that the prosecution is totally debarred from adducing evidence in excess of the materials, what have been filed along with the final report.

The prosecution case is that the accused has committed offences punishable under Sections 143,147,148, 323, 324, 326, 294(b), 342, 352, 364,367, 368, 302 r/w 149 IPC and Sections 3(1)(d)(1) and 3(2)(v) of the SC/ST Act. During the final stage of trial, the prosecution tender two inquiry reports, one an inquiry report under Section 176(1-A) by the Judicial Magistrate and another by the Sub Divisional Magistrate as evidence in the Sessions trial. Opposing this the present petition was moved. 

The Senior Public Prosecutor submitted that the specific case put up by the prosecution before the trial court is that the deceased Madhu was brutally manhandled by the accused and he died as a consequence thereof. But the defence case taken by the accused throughout the case is that Madhu died due to police torture while he was in police custody. Therefore, the above two reports dealt with the cause of death and are essential for throwing light on the fact that there was no police torture as alleged by the defence. Therefore, it is contended that the said evidence is absolutely necessary to decide the case in a fair manner and thus, the Special Judge rightly allowed the petitions.

On the contrary, the Counsel appearing for the petitioner contended that the inquiry reports under Section 176 of Cr.P.C are mere opinion evidence and the same is not substantive evidence. The Counsel also submitted that the said documents would not come under the purview of Section 35 of the Evidence Act.

The Court observed that after the introduction of sub-section 1-A, Section 176, when a person dies or disappears or rape is alleged to have been committed on any woman, while such person or woman is in the custody of the police, or in any other custody authorised by the Magistrate or the court, under this Code, in addition to the inquiry or investigation held by the police an inquiry shall be held by the Judicial Magistrate or any Metropolitan Magistrate as the case may be, within whose local jurisdiction the offence has been committed. The Court further clarified that the aforesaid inquiry is in addition to the inquiry provided under Section 176 (1) CrPC.

Furthermore, the High Court in Pookunju v. State of Kerala, had held that the record of what the Investigating Officer had seen with his own eyes and the inquest report is proved under law, the same is relevant under Section 35 of the Evidence Act and are admissible in evidence.

As per Section 5 of the Evidence Act, evidence may be given in any suit or proceeding of the existence or non-existence of every fact in issue and of such other facts as are hereinafter declared to be relevant, and of no others. Therefore, the Court opined that going by the wording of Section 5 it is clear that evidence may be given in any proceeding regarding the existence or non-existence of every fact in issue and of such other facts.

The Court opined that even though the prosecution did not produce the above reports along with the final report, if the reports have something so as to decide the fact in issue finally, merely because of non-production of the same, the hands of the prosecution can not be chained. 

The power provided under Section 311 of CrPC to summon material witnesses under the Code is significant at this juncture as it is one part discretionary and mandatory on the other. 

...at the first part, any court may at any stage of any inquiry, trial or other proceeding under this Code, 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. On the second part, the Court is given a wide and mandatory power and the same is to the effect that 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.

Therefore the Court observed that the court has power to summon and examine any person if his evidence appears to be essential to the just decision of the case.

The Court further pointed out that in the present case the inquiry reports under Sections 176(1) and 176(1-A) of Cr.P.C include three types of recitals. The first one is the contemporaneous and coetaneous acts done by the Judicial Magistrate as well as the Sub Divisional Magistrate recorded in the reports as to the cause of death of the person, which the Magistrate had seen with his own eyes. The Court opined that regarding those recitals, the Magistrates could very well give direct evidence and the said part of evidence, if given before a court, the same is a substantive piece of admissible evidence.

Furthermore, the second part includes the statements of the witnesses recorded during the inquiry by the Magistrates on oath and the same are previous statements without an opportunity for the affected persons to cross-examine the maker of the statements and these statements can be used for contradicting and corroborating the makers of the statements during the trial and the same have no other independent evidentiary value substantive in nature. Similarly, the third part is the opinion formed by the Magistrate based on the inquiry. The same is nothing but the opinion of the Magistrates and not substantive evidence. Therefore the Court observed that the sanctity, as well as the probative value of the aforesaid opinion, should be decided by the Court when deciding the case finally. 

The Court observed that though it is true that the prosecution is duty bound to place all evidence to be tendered along with the final report and copies should be furnished to the accused, as mandated under Section 208 CrPC in a Sessions trial, however in a particular case where the evidence sought to be tendered by the prosecution is absolutely necessary to decide the case fairly and the Court is of the opinion that particular evidence is essential for the just decision of the court, then the said evidence also can be permitted to be tendered and there is no rule barring the prosecution from adducing evidence in excess of the materials, what has been filed along with the final report. 

Therefore, the Court after considering the aforesaid legal positions rejected the contentions raised by the petitioner. 

Resultantly, I am inclined to hold that the order to summon and examine the above witnesses by the prosecution, is within the ambit of power of the Court under Section 311 of Cr.P.C and the said order suffers from no illegality, warranting interference by this Court.

Thereby, the Court dismissed the petition. 

Advocate John Sebastian Ralph appeared for the Petitioner. 

Senior Public Prosecutor Advocate S. U. Nazar appeared for the Respondents. 

Case Title: Hussain v. State of Kerala and another 

Citation: 2022 LiveLaw (Ker) 619

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