Salim v. State of Rajasthan — 1996 DIGILAW 1079 (RAJ)

Honble MITAL, J. – This petition is directed against the order dt. 18.4.96 passed by learned Special Judge, NDPS Act Cases, Jodhpur in criminal revision No. 2/96 (State vs. Salim) whereby the order passed by learned Addl. Chief Judicial Magistrate, No. 4, Jodhpur dated 6.1.1996 u/s. 311 Cr.P.C. was set aside and the prosecution was allowed on payment of cost Rs. 1,000/- to examine the prosecution witness Shri Bhanwardan. The learned Addl. Chief Judicial Magistrate dismissed the application of the prosecution u/s. 311 Cr.P.C. filed by the learned Public Prose- cutor to record the statement of the witness Shri Bhanwardan present in the Court. (2). The brief facts may be stated that the petitioner is facing trial in criminal case No. 1/89 u/s. 457 and 380 IPC. The charges were framed against him on 26.10.89. The prosecution commenced its evidence and examined P.W. 1 Firoz Khan on 6.5.91 and other seven witnesses till 5.7.95. Shri Bhanwardan is the inves- tigation officer in this case at serial No. 12 of the chargesheet, on 5.7.95, the learned Public Prosecutor, closed his evidence after examining PW 9 Gajesingh and the case was fixed on 27.7.95 for recording the statements U/s. 313 Cr.P.C. of the petitioner-accused and the same were recorded on the above date and the case was fixed for defence evidence on 1.8.95. The petitioner accused closed his defen- ce evidence on 1.8.95 and the case was adjourned to 2.8.95 for final arguments. However on 2.8.95 the learned Public Prosecutor moved an application u/s. 311 Cr.P.C. to call the prosecution witness Shri Bhanwardan. It was accepted and Shri Bhanwardan was summoned for evidence. The case was adjourned to 2.9.95, 26.9.95 and 19.10. 95. Shri Bhanwardan Police Official the investigation officer was not produced in the court and the process issued against him was not served, therefore, the learned trial court gave a last chance to the prosecution to produce this witness by order dt. 19.10.1995 but on the next day on 8.11.1995 prosecution failed to produce his witness despite the fact that the summons were given `dasti to Public Prosecutor and the learned trial court closed the evidence. However it was also observed that if Assistant Public Prosecutor shall produce the witness, his statements will be recorded. 19.10.1995 but on the next day on 8.11.1995 prosecution failed to produce his witness despite the fact that the summons were given `dasti to Public Prosecutor and the learned trial court closed the evidence. However it was also observed that if Assistant Public Prosecutor shall produce the witness, his statements will be recorded. The case was adjourned to 1.12.1995 and 7.12.1995 even then the prosecution failed to produce Bhanwardan police official investigation officer as witness and the matter was again fixed for 19.12.1995 for final arguments. On 6.1.1996, the learned Assistant Public Prosecutor again filed an app- lication u/s. 311 Cr.P.C. presenting the witness in the court, Shri Bhanwardan also for recording his statements. After hearing the parties this second application u/s 311 Cr.P.C. was rejected and case was adjourned for final arguments on 6.2.96. (3). The State preferred revision against the above said order dt. 6.1.96 and the learned Special Judge NDPS Act Cases, Jodhpur (Addl. Sessions Judge) heard the revision petition and set aside the impugned order dt. 6.1.96 and allowed the second application under section 311 Cr.P.C. on behalf of the State on payment of cost of Rs. 1,000/- to record the statement of Bhanwardan Investigation Officer. Now, the petitioner has come up by way of this misc. petition u/s. 482 Cr.P.C. praying to quash the order passed by learned Special Judge dt 18.4.1996. (4). The learned counsel for the petitioner vehemently argued that the above narration of the fact shows that the prosecution has been grossly negligent in producing his own police official witness Shri Bhanwardan investigation officer despite liberal view taken by learned trial court and several opportunities were given to the prosecution even after acceptance of the first application u/s. 311 Cr. P.C. The trial court had to close the prosecution evidence and when the case was fixed for final arguments, the prosecution again open the chapter of prosecution evidence by filing second application u/s. 311 Cr.P.C. on 6.1.1996. The learned trial Court recorded by the Chief Examination of Shri Bhanwardan the time the learned counsel for the petitioner came in the court after attending the case in other court and raised an objection on which the second application u/s. 311 Cr.P.C. was rejected after hearing arguments. The learned trial Court recorded by the Chief Examination of Shri Bhanwardan the time the learned counsel for the petitioner came in the court after attending the case in other court and raised an objection on which the second application u/s. 311 Cr.P.C. was rejected after hearing arguments. It is contended that the prosecution cannot be permitted to fill up the gaps and the lacuna left by it either negligently or otherwise by filing an application u/s 311 Cr.P.C. and more so second time when it did not avail of the chance given to it by the court by accepting its first application u/s. 311 Cr.P.C. The first application u/s 311 Cr.P.C. was also accepted at the stage of final arguments, even then prosecution did not care to serve the process upon Shri Bhanwardan who is a police officer or to produce him in the court. Therefore it was an abuse of the process of law by the prosecution to file second application u/s 311 Cr.P.C. on 6.1.96 when the case was fixed for final arguments. The contention of learned counsel for the petitioner is that the prosecution has no right to present the witness at any time at its will and file an application u/s. 311 Cr.P.C. to examine the witness at any stage without proper reason and explanation. It is further contended that the learned trial Court also could not review its order once the prosecution evidence was closed even then witness was not produced by it after taking permission u/s. 311 Cr.P.C. (5). Learned Public Prosecutor has strenuously argued that the court has wide powers to call a witness whose examination is essential for the just and proper decision for the case and the trial court had exercised its power to call Bhanwardan investigation officer under section 311 Cr.P.C. He contended that the order passed by learned Special Judge, Jodhpur requires no interference because the prosecution has been permitted to examine material witness Bhanwardan investigation officer more so on payment of cost of Rs. 1,000/-. According to him the prosecution is not filling the gape or any lacuna because Shri Bhanwardan being an investigation officer is a material witness and has been shown at serial no. 12 in the chargesheet. 1,000/-. According to him the prosecution is not filling the gape or any lacuna because Shri Bhanwardan being an investigation officer is a material witness and has been shown at serial no. 12 in the chargesheet. He will prove the information furnished by the accused-petitioner u/s 27 of the Indian Evidence Act and the recovery effected by him in pursuance of the information which will go a long way to prove the charges against the petitioner. Therefore in the above facts and circumstances, no lacunae or gaps are being filled up by the prosecution and the petitioner is not prejudiced in any manner. (6). I have given my throughtful consideration to the rival submissions. The counsel for the petitioner has relied upon Balwantsingh and Ors. vs. State of Raj. (1) and Bindeswari Prasad Singh vs. Kalisingh (2) in which it has been laid down that Magistrate is not empowered to review or recall its order because the subor- dinate courts have no inherent powers like High Courts and Supreme Court. Unlike, section 151 CPC, the sub- ordinate criminal courts have no inherent powers. Further reliance has been placed on Ganpat Ram vs. State of Rajasthan (3). In the above decisions the principle has been laid down that the powers under section 311 Cr.P.C. cannot be invoked to fill up the gap and lacuna left by the prosecution. If the prosecution neglects to elicit essential facts to prove the charge against the accused then the powers u/s 311 Cr.P.C. cannot be pressed into service to remove the latches of the prosecution and fill up the lacunae. However the court has to scrutinize on the facts and circumstances of the case and the purpose for which the witness is recalled and to satisfy that to call or to recall the witness will not amount to fill up the lacuna or gap left by the prosecution but it is essential to exercise the powers u/s 311 Cr.P.C. for just and proper decision of the case. Each and every circumstance justifying to call or recall the witness cannot be stated as to fill up the gap or lacuma left by the prosecution. Each and every circumstance justifying to call or recall the witness cannot be stated as to fill up the gap or lacuma left by the prosecution. In the light of above proposition of law when I examine the facts and circum- stances of this case, I am unable to agree with the impugned order passed by learned Special Judge, Jodhpur whereby second application u/s. 311 Cr.P.C. has been allowed. No doubt Shri Bhanwardan is a material witness the is investigation officer who effected the recovery u/s 27 of Evidence Act but if the prosecution has been neglient and conducted the case in a cavalier manner and left the gap and lacuna then it cannot claim to exercise all the powers u/s. 311 Cr.P.C. to call or recall a witness as it will amount to fill up the gap and the lacuna left by it. (7). It is strange that on 5.7.95 prosecution closed its evidence after examining PW 9 Gajesingh and did not care to see whether any other witness required to be examined particularly when Shri Bhanwardan is said to be a material witness and was named in the list of witnesses. So much so that the statements of accused were taken and he completed his defence evidence also and the case was fixed for argu- ments but it did not strike the prosecution that Shri Bhanwardan was necessary to be examined in this case. It was only on 2.8.95 that the learned Public Prosecutor moved an application u/s. 311 Cr.P.C. Learned trial court, however, accepted the same and even then the prosecution failed to present this witness in the court despite several adjournments and court had to warn the prosecution on 19.10.95 by giving last opportunity. But the prosecution did not awake from its slumber and even did not produce him on 8.11.95 and the learned trial court closed the evidence. On this day the court passed conditional order that if APP will produced him, his statement will be recorded. But inspite of three adjournments Shri Bhanwardan could not be produced by the prosecution and when the case was fixed on 6.1.1996 for final arguments Shri Bhanwardan appeared in the court and another application u/s. 311 Cr.P.C. was filed when the case was fixed for final arguments. But inspite of three adjournments Shri Bhanwardan could not be produced by the prosecution and when the case was fixed on 6.1.1996 for final arguments Shri Bhanwardan appeared in the court and another application u/s. 311 Cr.P.C. was filed when the case was fixed for final arguments. In the above facts of the case, the second application u/s. 311 Cr.P.C. was rightly rejected by the trial court because in the above facts and circumstances of the case exercising powers u/s. 311 Cr.P.C. second time for the same witness would in my opinion, amount to the filling up the gap and lacuna left by the prosecution. I am inclined to agree with learned counsel for the petitioner that it is not open and free will of the prosecution to present any witness at any time filing an application u/s 311 Cr.P.C. with a prayer to record the statements. The prosecution cannot be allowed to thrive upon its own weakness or carelessness and cavalier manner of conducting the case. It is true that powers u/s. 311 Cr.P.C. can be exercised by the court at any stage of the proceedings i.e. even at the stage of final arguments but it does not give a clean chit to the prosecution not to examine a witness at the proper stage and then to invoke the powers u/s. 311 Cr.P.C. without assigning sufficient and good reasons. In the present case I am clearly of the view that the prosecution has no sufficient and good reasons to justify its right to call and examine Shri Bhanwardan witness in the above stated facts and circumstances of the case. The learned Special Judge has observed that the trial court accepted an application u/s. 311 Cr.P.C. on 2.8.1995 and that order attained finality as the order was not challenged in revision. Further the learned trial court started recording the statement of Shri Bhanwardan and Completed chief examination and then second application u/s. 311 Cr.P.C. was rejected which according to the learned Special Judge the trial court could not do so because the trial court recorded the chief examination on the premises that his statement was essential for the just and proper decision of the case. Therefore according to the learned Special Judge the trial court could not reject the second application u/s. 311 Cr.P.C. as it amounted to review of its act of recording the chief examination of Bhanwardan. Therefore according to the learned Special Judge the trial court could not reject the second application u/s. 311 Cr.P.C. as it amounted to review of its act of recording the chief examination of Bhanwardan. Therefore learned trial court could not review its action and learned Special Judge accepted the revision petition. (8). It appears to be a plausible situation but when I closely scrutinize the se- quence of the proceedings conducted by the trial court then I am of the opinion that the trial court was still in the seisin of the matter and was well within its rights to hear and decide the second application u/s. 311 Cr.P.C. On reading the proceedings dt. 5.1.96, it goes to show that the learned APP presented Bhanwardan witness and submitted second application u/s. 311 Cr.P.C. The copy of the application was furnished to the counsel for the accused and after hearing parties learned trial court rejected that application recording reasons therein. It is not clear from the proceedings noted on 6.1.96 as to how before even deciding the application u/s. 311 Cr.P.C. chief examination of Shri Bhanwardan were recorded by the court. The matter stands clarified from the statements of Shri Bhanwardan that the chief examination were recorded in the absence of counsel for the petitioner accused, though in the presence of the petitioner and as soon as the counsel for the petitioner came in the court from other court then he raised an objection and prayed that the statement recorded so far should not be read against the accused. By rejecting the application u/s. 311 Cr.P.C. the learned trial court in the above circumstances accepted the objection and recorded in the second page of the statement that the chief examination part of the statement shall not be read against the accused. The sum and substance is that when the application u/s 311 Cr.P.C. was not heard and accepted then the statement of Bhanwardan could not commence and the chief examination could not have been recorded. His statement could be recorded only after a decision on the application of the learned APP u/s. 311 Cr.P.C. In the above circumstances, the learned trial court exercised its jurisdiction and did not further record the statements and thought it propper to first decide the application u/s 311 Cr.P.C. That application was accordingly decided and it was rejected for the rea- sons mentioned in the order. Therefore, I am unable to agree with the view of learned Special Judge that the trial court could not hear and decide the application u/s. 311 Cr.P.C. and it was so decided then it amounted to the review of its own order because the chief examination of Shri Bhanwardan were recorded without deciding the application u/s. 311 Cr.P.C. after hearing the objections on behalf of the petitioner. If for any reason the chief examination was recorded before taking decision on the application u/s 311 Cr.P.C. then such statement was not recorded under the proper procedure and the chief examination part of the statement have been kept on file and the order that it cannot be read against the accused is justified. Perhaps this complication arose due to the recording of chief examination of Bhan- wardan without reasonable wait for the presence of the learned counsel for the petitioner who could have first objected on the very inception if the chief examination would have begun in his presence. Therefore, I am of the opinion that the trial court was right in dismissing the application u/s. 311 Cr.P.C. and the order of learned Special Judge accepting the revision is not sustainable. (9). In the result, this miscellaneous petition is allowed. The impugned order dt. 18.4.1996 is hereby set aside and the order dt. 16.1.1996 passed by learned Addl. Chief Judicial Magistrate, No.4, Jodhpur is hereby restored by which the application u/s. 311 Cr.P.C. has been dismissed and the case has been ordered to be fixed for final arguments. Record of the lower court be sent forthwith.