APHC010396172025 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3396] TUESDAY, THE EIGHTEENTH DAY OF NOVEMBER TWO THOUSAND AND TWENTY FIVE PRESENT HONOURABLE DR. JUSTICE VENKATA JYOTHIRMAI PRATAPA CRIMINAL PETITION NO: 8432/2025 Between: 1. THEEGALA APPALANARASAYYA GUPTA, S/O LATE T.CHINNA VENKATA RAMANAYYA, AGED ABOUT 77 YEARS, D.NO.7-137, VIZIANAGARAM ROAD, KOTHAVALASA, VIZIANAGARAM DISTRICT. 2. ALLA VEERA VENKATA SATYA SURYA CHANDRA BHEEMA SEKHAR BABU, S/O PATTABHI RAMA RAO, AGED ABOUT 49 YEARS, R/O D.NO. 104, LAKSHMI APARTMENT, KAILASAMETTA, VISAKHAPTNAM CITY, COMPANY SECRETARY TO M/S.T.M.FOODS LIMITED COMPANY. ...PETITIONER/ACCUSED(S) AND 1. MALLIDI KASTURI, W/O LATE M.N.REDDY, AGED ABOUT 52 YEARS, R/O D.NO.11-9-3 DASAPALLA HILLS, VISAKHAPATNAM. 2. THE STATE OF ANDHRA PRADESH, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF ANDHRA PRADESH, AMARAVATI. ...RESPONDENT/COMPLAINANT(S): Counsel for the Petitioner/accused(S): 1. M R K CHAKRAVARTHY Counsel for the Respondent/complainant(S): 1. V SAI KUMAR 2. PUBLIC PROSECUTOR The Court made the following: ORDER: The instant petition under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 has been filed by the Petitioners / Accused, seeking quashment of the Order dated 21.04.2025 in Crl.M.P.No.7221 of 2024 in 2 C.C.No.126 of 2016 on the file of the Court of IV Additional Chief Metropolitan Magistrate, Visakhapatnam. 2. Heard Sri M.R.K.Chakravarthy, learned counsel for the Petitioners, Sri V.Sai Kumar, learned counsel for Respondent No.1 and Ms.K.Priyanka Lakshmi, learned Assistant Public Prosecutor for Respondent No.2. 3. Learned counsel for the Petitioners would submit that, earlier, the application filed under Section 311 Cr.P.C by the De facto complainant was dismissed by the trial Court as the same was not filed by the Prosecution. It is further submitted that, the Prosecution had already filed a petition in Crl.M.P.No.5925 of 2024 to recall L.Ws.12 to 16 and the same was allowed on vide order dated 07.10.2024 on the condition that the Prosecution shall produce and examine the proposed witnesses on 25.10.2024. On that day, L.W.15 was present, was examined and Exs.P.19 to 24 were marked through him. As the other witnesses were not present on the said date, the evidence of L.Ws.12 to 14 and 16 was closed and no application seeking enlargement of time has also been filed. Learned counsel would further submit that, no reason is assigned for not examining the remaining witnesses on the given date. Learned counsel would finally prays to allow the petition. 4. Per contra, learned counsel for Respondent No.1 and the learned Assistant Public Prosecutor, in unison, would submit that, the evidence of L.Ws.12 and 14, who are the expert and the Investigating Officer is necessary to prove the allegations made against the Accused. It is further submitted that, no prejudice will be caused to the Accused in allowing the witnesses to 3 be examined, as they will have every opportunity to cross examine the witnesses. Hence, prayed to dismiss the petition. 5. Section 311 Cr.P.C. empowers the Court to summon, examine, recall or re-examine any witness at any stage of the trial if such evidence appears to be essential to the just decision of the case. In Swapan Kumar Chatterjee v. CBI1, the Hon’ble Supreme Court had categorically observed that the provision under consideration comprises two distinct parts. The first part, being permissive in nature, confers a discretionary authority upon the criminal court to, at any stage of inquiry, trial or other proceedings under the Code: (i) summon any person as a witness; or (ii) examine any person present in court, though not summoned as a witness; or (iii) recall and re-examine any person already examined. The second part, which is mandatory, enjoins the court to either (i) summon and examine, or (ii) recall and re-examine any such person, where the evidence of such person appears to the court to be essential for a just decision of the case. 6. The Hon’ble Supreme Court of India in Munna Pandey vs. State of Bihar2, in similar circumstances, held as follows: “70. This Court has condemned the passive role played by the Judges and emphasized the importance and legal duty of a Judge to take an active role in the proceedings in order to find the truth to administer justice and to prevent the truth from becoming a casualty. A Judge is also duty bound to act with impartiality and before he gives an opinion or sits to decide the issues between the parties, he should be sure that there is no bias against or for either of the parties to the lis. For a judge to properly discharge this duty the concept of independence of judiciary is in existence and it includes ability and duty of a Judge to decide each case according to an objective evaluation and application of the law, without the influence of outside factors. 1 (2019) 14 SCC 328 : (2019) 4 SCC (Cri) 839 2 2023 SCC OnLine SC 1103 4 71. If the Courts are to impart justice in a free, fair and effective manner, then the presiding judge cannot afford to remain a mute spectator totally oblivious to the various happenings taking place around him, more particularly, concerning a particular case being tried by him. The fair trial is possible only when the court takes active interest and elicit all relevant information and material necessary so as to find out the truth for achieving the ultimate goal of dispensing justice with all fairness and impartiality to both the parties. 72. In Ram Chander (supra), while speaking about the presiding judge in a criminal trial, Chinnappa Reddy, J. observed that if a criminal court is to be an effective instrument in dispensing justice, the presiding judge must cease to be a spectator and a mere recording machine. He must become a participant in the trial by evincing intelligent active interest by putting questions to witnesses in order to ascertain the truth. The learned Judge reproduced a passage from Sessions Judge, Nellore v. Intha Ramana Reddy, 1972 Cri LJ 1485, which reads as follows:— “Every criminal trial is a voyage of discovery in which truth is the quest. It is the duty of a presiding Judge to explore every avenue open to him in order to discover the truth and to advance the cause of justice. For that purpose he is expressly invested by Section 165 of the Evidence Act with the right to put questions to witnesses. Indeed the right given to a Judge is so wide that he may, ask any question he pleases, in any form, at any time, of any witness, or of the parties about any fact, relevant or irrelevant. Section 172(2) of the Code of Criminal Procedure enables the court to send for the police-diaries in a case and use them to aid it in the trial. The record of the proceedings of the Committing Magistrate may also be perused by the Sessions Judge to further aid him in the trial.” 7. It is well settled that every criminal trial is a voyage of discovery of truth. The Court is not a mere spectator and is duty-bound to ensure that all material evidence necessary for a just decision is brought on record. The Court must not be deprived of the benefit of any valuable evidence. It is absolutely necessary that the Court must be apprised of the best evidence available. In a case where neither party is interested in examining a person as a witness yet the Court feels that the evidence of such a person is necessary for a just decision, the Court though cannot compel either the prosecution or the defence to call a witness, but it can invoke its power under Section 311 CrPC, 5 read with Section 165 of the Evidence Act. Thus, the powers under Section 311 Cr.P.C. read with Section 165 of the Evidence Act are wide and can be exercised even after closure of evidence, including at the stage when the matter is reserved for judgment. 8. In the instant case, as seen from the record, the application filed under Section 311 Cr.P.C to recall L.Ws.12 to 16, was dismissed as the same was a conditional order and was not complied with. Admittedly, the charges framed against the Accused were under Sections 420, 468, 471 and 120-B IPC. Further, L.W.12 is the Hand Writing Expert and L.W.14 is the Investigating Officer, whose evidence goes to the root of the matter and is necessary for a just and proper adjudication of the case. As rightly contended by the learned counsel for Respondent Nos.1 and 2, in view of the nature of the offences alleged against the Petitioners, the said witnesses are crucial to establish the case of the Prosecution. 9. The power of the Court under Section 311 Cr.P.C to summon or recall witnesses is intended to discover the truth and to render a just decision. The mere fact that the Prosecution failed to examine certain witnesses on the earlier date, by itself, cannot be a ground to close material evidence, where no irreparable prejudice would be caused to the Accused. Further, as rightly observed by the learned trial Judge, allowing the proposed witnesses to be examined, will not cause any prejudice to the case of the Accused, as they will have every opportunity to cross examine the said witnesses and elicit the truth. Non mentioning of any reason for not complying with the conditional 6 order passed in Crl.M.P.No.5925 of 2024, cannot be a ground to quash the impugned order. The trial Court, in the considered view of this Court, has exercised its discretion judiciously by permitting the examination of material witnesses in order to effectively adjudicate the issues involved. This Court does not find any illegality or infirmity in the impugned order dated 21.04.2025 passed in Crl.M.P.No.7221 of 2024 in C.C.No.126 of 2016 on the file of the Court of IV Additional Chief Metropolitan Magistrate, Visakhapatnam, warranting interference under Section 528 of BNSS. 10. Accordingly, the Criminal Petition is dismissed. As a sequel thereto, miscellaneous petitions, if any, pending shall stand closed. ________________________________________ Dr.JUSTICE VENKATA JYOTHIRMAI PRATAPA Date:18.11.2025 Dinesh 7 HON’BLE DR. JUSTICE VENKATA JYOTHIRMAI PRATAPA Crl.P.No.8432 of 2025 Dt.18.11.2025 Dinesh