State of Goa v. Sharachandra Upendra Kamat — 1988 DIGILAW 393 (BOM)

JUDGMENT G.F. Couto, J. - The petitioner-State of Goa challenges in this writ petition the Order dated 30th March, 1988, passed by the learned Chief Judicial Magistrate, Panaji, dismissing an application filed on behalf of the prosecution to examine one witness and to produce through the said witness an order of detention. 2. A criminal case has been instituted against the respondents herein for offences punishable, inter alia, under sections, 120-B, 173, 221, 222, 223, 225-A, 225-B and 465 read with section 32 of the Indian Penal Code. The main charge against the first respondent is that he had not co-operated with the Police Officers of the Gujarat Government, who had been specially deputed to Goa to execute a COFEPOSA detention order issued by the Government of Gujarat against the fifth respondent, who was, at the relevant time, in custody in the Central Jail of Aguada, where the said respondent No. 1 was functioning as Superintendent of Jail. The prosecution examined witnesses, and after closing its case, arguments were being heard. At this stage, an application was moved by the learned Special Public Prosecutor under section 311 of the Criminal Procedure Cede praying that one witness, namely, either Mr. P.M. Shah or Mr. Vasarada be allowed to be examined in order to exhibit and produce in Court the COFEPOSA detention order. The said order, it was stated, was not exhibited due to inadvertence because the prosecution thought that the existence of the said order of detention was not disputed. 3. This application was opposed by the respondent, and finally, by his impugned order dated 30th March, 1988, the learned Chief Judicial Magistrate. Panaji, dismissed it. 4. Mr. Namjoshi, the learned counsel appearing for the petitioner, has, at the outset, submitted to the Court that the prosecution wishes to examine only one witness and this, for the limited purpose of exhibiting the COFEPOSA detention order, which is the basis of the prosecution case and to prove it. He submitted that the said order was not exhibited by pure inadvertence, since the prosecution thought that the defence was not disputing its existence. It was only while arguments were being advanced by the defence counsel after the closing of the evidence of the prosecution, that it was found that the said document, which is essential for the just determination of the case, had not been produced. It was only while arguments were being advanced by the defence counsel after the closing of the evidence of the prosecution, that it was found that the said document, which is essential for the just determination of the case, had not been produced. The learned counsel urged that the said document is essential for the just decision of the case, and therefore, the learned Chief Judicial Magistrate ought to have allowed the application filed by the prosecution. 5. Mr. R.M.S. Khandeparcar, the learned counsel appearing for the first respondent, strongly opposed the views of Mr. Namjoshi. He contended that through the aforesaid application under section 311 of Criminal Procedure Code, the prosecution is attempting to close the loopholes in its case and to re-open a case that was already closed. This will, manifestly, work to the prejudice of the respondent, and particular of the respondent, and therefore, will cause injustice to him. Mr. Kahndeparcar further contended that a bare reading of paragraph 4 of the Writ Petition is sufficient to disclose that there is no inadvertence on the part of the prosecution in producing the aforesaid document. In fact, it is averred, on one hand, that the Special Public Prosecutor all the time believed that the existence of the detention order was not disputed, and on the other, that the said order of detention was not produced on account of inadvertence and loss of sight thereof. Mr. Khandeparcar submits that the above averments in paragraph 4 of the Writ Petition are contradictory in terms, for they disclose that the order of detention was not produced because in the opinion of the learned Special Public Prosecutor there was no dispute about its existence, and therefore, it was not necessary to be exhibited. Therefore, if that was the opinion of the learned Special Public Prosecutor, obviously, it cannot be said that the said detention order was not produced by mere in advertence. Mr. S.Y. Patel, the learned counsel appearing for the respondent No. 3, concurred with the view expressed by Mr. Khandeparcar and in his turn, Mr. Mahesh Sonek, the learned counsel appearing for the respondent No. 4, while agreeing in general with Mr. Khandeparcar, further argued that the prosecution cannot be allowed to re-open its case and to examine more witnesses in order to fill up the gape existing in its case. Khandeparcar and in his turn, Mr. Mahesh Sonek, the learned counsel appearing for the respondent No. 4, while agreeing in general with Mr. Khandeparcar, further argued that the prosecution cannot be allowed to re-open its case and to examine more witnesses in order to fill up the gape existing in its case. In this connection, the learned counsel placed reliance in Ibrahim hussen v. State1, and in Kashmira Singh v. State2. He further contended that while exercising the powers under section 311 of Criminal Procedure Code, the court should bear in mind that while doing that injustice should not be caused to the accused. In this regard, he placed reliance in Shreelal Kajaria v. The State3. 6. It is seen that the main charge against the accused No. 1 first respondent herein is that he did not co-operate with the Police Officers of the Gujarat a COFEPOSA detention order issued by the Gujarat Government against the fifth respondent Sukur Narayan Tandel Bakia, who at the relevant time, Was detained in the Central Jail of Aguada, where the said respondent was posted as Superintendent of Jail. It is, therefore, exceedingly clear that the aforesaid detention order constituted an essential piece of evidence to be brought on record by the prosecution to support and to prove its case. The omission in exhibiting such order of detention would necessarily lead to the acquittal of the accused No. 1, since if the detention order had no existence, the question of executing it would not at all arise. This being so, it is manifest that the prosecution has made a major mistake in not producing it in the course of evidence. This major mistake can be explained either by inadvertence or by negligence or even by sheer dishonesty of the prosecution. The record is sufficient to safely hold that the third hypothesis is to be ruled out since the prosecution had been, admittedly, examining numerous witnesses and had taken great pains to deal with the case. Therefore, the reason given by the learned Special 1. AIR 1969 Doa, Daman and Diu 68. 2. AIR 1965 J. K. 37. 3. AIR 1964 Bom. 165 . Therefore, the reason given by the learned Special 1. AIR 1969 Doa, Daman and Diu 68. 2. AIR 1965 J. K. 37. 3. AIR 1964 Bom. 165 . Public Prosecutor in the application moved to the Court under section 311 of Criminal Procedure Code is to be accepted and it is to be held that the said order of detention was not produced by mere inadvertence caused by the wrong belief that the defence was not disputing its existence. 7. Section 311 of Criminal Procedure Code empowers the Court to summon material witnesses or to examine persons present who had not been examined by the prosecution. It lays down that any Court may, at any stage of any inquiry, trial or other proceeding under the Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and reexamine any person already examined, and further, that the Court shall summon or examine or re-call or re-examine any such person if his evidence appears to it to be essential to the just decision of the case. Iii the case before me, it is the second part of the provision that is attracted and I should therefore, address myself to the question as to whether or not the said order of detention under the COFEPOSA Act is essential to the just decision of the case. I have no doubt in answering this question in the affirmative, as I already mentioned that the main charge against the accused No. 1 is that he did not co-operate with the Police Officers of the Gujarat State who had been specially deputed to Goa for the execution of the said detention order against the fifth respondent, who was at the relevant time, detained in the Aguada Central Jail. It is true that the prosecution ought to have produced the said order of detention through the Police Officer who had been deputed by the Gujarat State to execute the aforesaid order of detention. It appears that the said Police Officer, namely P.I. Sawant was not at all examined by the prosecution. I, therefore, enquired from Mr. Namjoshi why the said Police Officer has not been examined. It appears that the said Police Officer, namely P.I. Sawant was not at all examined by the prosecution. I, therefore, enquired from Mr. Namjoshi why the said Police Officer has not been examined. The learned counsel placing reliance on the evidence of P.W. 27 Prabhu Dessai which was recorded on 28th July, 1987, stated that the P.I. Sawant was not available to the prosecution as unfortunately, he had died prior to the time the prosecution closed its case. This statement was not apparently challenged in cross examination and it was only asked to Prabhu Dessai if he had any death certificate to prove the death of the P.I. Sawant. Prahhu Dessai stated that he had no such certificate in his possession, but it may be pointed out that the actual fact of death of P.I. Sawant was not seriously challenged. I may, therefore, proceed on the basis that Sawant had already died prior to the closing of the prosecution case, and therefore, he was not available for giving evidence. In the context of the facts, it is my considered opinion that the learned trial Judge ought to have allowed the application filed on behalf of the prosecution under section 311, Cr. P.C. to examine one witness for the limited purpose of exhibiting the aforesaid COFEPOSA detention order and to prove it. The said document, as already seen, is absolutely essential for the just decision of the case. 8. The authorities cited at the Bar by Mr. Sonak in no manner advance the case of the respondent. In fact, in Ibrahim Hussen's case, the Court has examined suo motu a witness which was not cited by the prosecution. The learned Judicial Commissioner observed that it was not clear why the court has examined the witness suo motu and remarked that it is for the prosecution to prove its case and it is not permissible to the Court to examine witnesses to plug the loopholes of the prosecution case. In Kashmira Singh's case, the learned Single Judge of the Jammu and Kashmir High Court observed that the powers of the appellate court either for ordering re-trial or for taking additional evidence are not meant to be exercised in order to enable the prosecution to fill up lacunae in the case. This prosecution of jaw is undisputable and I have no quarrel with it. This prosecution of jaw is undisputable and I have no quarrel with it. The only thing is that the same proposition is not at all attracted to the facts of this case where the examination of a fresh witness ii meant only for the purpose of producing a document which is essential for the just decision of the case. Finally, in Shreelal Kajaria's case, the learned Single Judge of this Court observed that the question whether or not, after the entire evidence is over, the Court should permit further evidence to be led will depend on the facts of each case. He added that it cannot be laid down as a general rule that in no case can an additional witness be called by the Judge at the close of the trial after the case of the defence had been closed. The Judge has to exercise caution in exercising his powers and before using them, he has to take into account the circumstances and decide whether the course of examining witnesses after the entire case is closed, would be so irregular that it may be in justice to the accused. The above view taken by the learned Single Judge of this Court is entirely correct and respectfully agree with it. As he rightly said, the question whether or not the court should permit further evidence to be led entirely depends on the facts and circumstances of each case, If further evidence is essential to the just decision of the case, the Court will definitely and should definitely exercise its powers and allow further evidence to be allowed. This is exactly what happens in the present case. 9. In view of the above discussion, it is obvious that the learned Chief Judicial Magistrate was wrong in dismissing the application. He ought to have granted the application filed by the prosecution and allowed it to examine either Mr. P.M. Shah or Mr. Vasarada for the limited purpose of exhibiting the COPEPOSA detention order issued against the fifth respondent and to prove it. 10. The result, therefore, is that the rule is made absolute in terms of prayer (b). Consequently, the impugned order dated 30th March, 1988, is set aside and the learned trial Judge is directed to allow the examination of either Mr. 10. The result, therefore, is that the rule is made absolute in terms of prayer (b). Consequently, the impugned order dated 30th March, 1988, is set aside and the learned trial Judge is directed to allow the examination of either Mr. Shah or Vasarada, or any other Officer of Gujarat State, if any of them is not available, for the limited purpose as stated above. The learned Chief Judicial Magistrate is further directed to give an opportunity to the accused to cross-examine the witness examined by the prosecution to the aforesaid purpose, if they so desire, and thereafter, if necessary, to examine the accused once again under section 313 of Criminal Procedure Code. Petition allowed.