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2002 DIGILAW 636 (CAL)

Kalyan Roy @ Nantu v. State of West Bengal

2002-09-24

Amit Talukdar

body2002
JUDGMENT Amit Talukdar, J.: "8. Lacuna in the prosecution must be understood as the inherent weakness or a latent wedge in the matrix of the prosecution case. The advantage of it should normally go to the accused in the trial of the case, but an oversight in the management of the prosecution cannot be treated as irreparable lacuna. No party in a trial can be foreclosed from correcting errors. 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. After all, function of the criminal court is administration of criminal justice and not to count errors committed by the parties or to find out and declare who among the parties performed better." The hallowed observations of the Hon'ble Supreme Court in the decision of Rajendra Prasad vs. Narcotic Cell, through its Officer-in-Charge, (1999) 6 SCC 110 , sets the signature-tune in this Revisional Application. 2. In a criminal trial which is a voyage of discovery the master of the vessel is, of course, the presiding officer and the two needles of the campus are the prosecution and the defence. While the presiding officer has every right to elicit the truth for arriving at his finding, the participants in the said voyage equally has the right to place before the master facts which are germane for a proper decision. 3. Had it not been so; then obviously the provisions of sections 91 & 311 of the Code of Criminal Procedure ('the said Code') and section 165 of the Evidence Act ('the said Act') could have been rendered nugatory by now and had stood obliterated from the statute book like a dead-leaf. 4. During the course of the management of a criminal trial being sessions trial No. 5(4) of 2001 the learned Trial Court performed a perfectly justified duty cast upon it by allowing the prayer of the prosecution of 06.03.2002 by its impugned order No. 20 dated; 11.3.2002. 5. Since the accused feels •that acceptance of the prayer of the prosecution by the learned Trial Court would operate to his prejudice and defence having already been disclosed and the evidence of the electronic media cannot be taken into consideration he has approached this courts invoking its inherent powers. 6. 5. Since the accused feels •that acceptance of the prayer of the prosecution by the learned Trial Court would operate to his prejudice and defence having already been disclosed and the evidence of the electronic media cannot be taken into consideration he has approached this courts invoking its inherent powers. 6. The learned Advocate Shri Sekhar Basu duly assisted by Shri Joymalya Bagchi appearing for the petitioner has made elaborate submissions with regard to feasibility of the order impugned on the ground that the witnesses who have already been cited in the charge-sheet are being examined at present and allowing the additional evidence would give a boost to a delinquent investigating agency who could not muster the materials at the stage of section 173 of the said Code. Further it was submitted on behalf of the accused/petitioner that there was no satisfaction by the prosecution for calling the additional witnesses who have been elicited in the petition dated 06.3.2002 filed by the prosecution unless there is a foundation of the belief that the said witnesses are relevant for the purpose of the trial the prayer should not have been allowed according to the learned Advocate for the accused/petitioner. He further submitted that only in exceptional situation the learned Trial Court could have exercised its power under section 311 of the said Code and as there was no reason given by the learned Judge in allowing the prayer of the prosecution the order impugned suffers from a great defect. He, thereafter, submitted that the provisions of section 311 of the said Code cannot be used as a surrogate of a charge-sheet and the witnesses which have been sought to be examined by the prosecution are not relevant. 7. The learned Additional Public Prosecutor with the sustained assistance of Shri Tapan Dutta Gupta for the State in his usual forensic skill distinguished the submission made on behalf of the accused/petitioner and took much pains to support the order. The learned Additional Public Prosecutor delineated the outline of the prosecution case and stressed that the witnesses are fully relevant in the fact situation of the instant case and are absolutely necessary for a proper trial. The learned Additional Public Prosecutor delineated the outline of the prosecution case and stressed that the witnesses are fully relevant in the fact situation of the instant case and are absolutely necessary for a proper trial. He by referring to the prosecution case submitted that the persons depicted in the petition of 06.3.2002 that each and everyone of them are required to place very important portions of the prosecution case which, if shut out, would cause prejudice and prayed for dismissal of the present application. 8. Shri Dilip Kumar Dutta the learned senior advocate assisted by Smt. Anusuya Dutta for Smt. Anuradha Bose @ Lakshmi Bose the unfortunate widowed mother of deceased Kunal Bose in connection with whose sinister murder the accused/petitioner Kalyan and the wife of the deceased Aparajita Bose @ Moon Moon have been impleaded in the array of the accused in Sessions Trial No.5(4) of 2001 before a learned Additional Sessions Judge, Alipore relied on a written notes of argument. Shri Dutta submitted that the witnesses are all relevant witnesses and they are required to be examined by the prosecution so as to unveil the actual truth. Shri Dutta refutaed the submissions of the learned Advocate for the accused/petitioner and submitted that the authenticity of the evidence with regard to the electronic media cannot be questioned as a tape recorded statement is accepted as primary evidence then there was no harm in a video recorded statement to be accepted as evidence which on the other hand gives a more correct picture. He further submitted that in view of section 4 of the Information and Technology Act, 2000 the evidence with regard to the electronic was very much admissible and further and lastly, he submitted that the court cannot by hyper-technical in coming to an actual truth. Shri Dutta has prayed for dismissing the prayer of the accused/petitioner and he has also expressed his apprehension that this is a veiled attempt on the part of the accused/petitioner to drag its feet so as just to delay the trial as the co-accused Aparajit Bose has also approached this court earlier for fixation of day-to-day trial. 9. In reply, Shri Bagchi learned Advocate assisting Shri Bose submitted that if the court allows item No.8 in the petition dated 6.3.2002 i.e., the evidence of Dr. 9. In reply, Shri Bagchi learned Advocate assisting Shri Bose submitted that if the court allows item No.8 in the petition dated 6.3.2002 i.e., the evidence of Dr. Rahit Kumar Basu, Executive Editor of Khas Khabar along with the camera-man and commentator with regard to the news displayed on 03.6.2000, 04.6.2000 and 05.6.2000 in the Khas Khabar Channel of the television then he felt afraid that the court would be allowing a co-lateral and non-statutory investigational process to wrap up the procedural bindings of law and give rise to an extra legal forum to guide the courts decision. 10. I have had 'the advantage of listening to the erudite submissions of the learned Advocate for the petitioner and the de facto complainant who has been arrayed as the opposite party by an earlier order passed' by a learned single Judge of this court as also the learned Additional Public Prosecutor for the State in the kaleidoscope of the material's and the legal position involved. 11. Agony of the accused in invoking the inherent powers of this court to , retrieve him self from the order passed by the learned Trial Court on 11.3.2002 can be spilt up into two parts: Firstly, with regard to allowing the prayer of the prosecution for examining the additional witnesses in column Nos. 1 to 7 of the petition dated 06.3.2002 as they are not relevant and their examination would give a boost to the otherwise halting investigation having failed to perform its statutory obligation at the stage of section 173 of the said Code has come up in the late hours of the day to invoke section 311 of the said Code, and Secondly, with regard to the question of admissibility of the evidence of Dr. 'Rahit Kumar Basu and his team of Khas Khabar which would not be permissible to accept as evidence and will act as co-lateral investigation. 12. May I take the first question which haunts the mind of the accused/ petitioner with regard to the examination of the witnesses. I have closely perused the order of the learned Trial Court vis-a-vis the petition dated 06.3.02. I find that in the fact situation of the instant case to unearth the actual truth if the shutters are rolled down on the face of the prosecution and-they' are denied examination of the elicited witnesses then it would be anything but not justice. I have closely perused the order of the learned Trial Court vis-a-vis the petition dated 06.3.02. I find that in the fact situation of the instant case to unearth the actual truth if the shutters are rolled down on the face of the prosecution and-they' are denied examination of the elicited witnesses then it would be anything but not justice. The learned Trial Court has taken extreme pains and with due diligence has come to its reasoned finding which I wholeheartedly concur and aim of the view that the same is not only correct but is the most apposite stand. 13. In this regard I am reminded of the passage from State of U.P. vs. Anil Singh, AIR 1988 SC 1998 , wherein K. Jagannatha Shetty, J. writing the judgment for the Division Bench of the Supreme Court held: "It is necessary to remember that a Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. One is as important as the other. Both are public duties which the Judge has to perform." 14. In that view of the matter how can it be said that the order impugned suffers from any defect? The provisions of section 311 of the said Code entails that the court may at any stage of any inquiry, trial or other proceeding summon a person and examine as a witness or recall or re-examine a person already examined 'if his evidence appears to it to be essential to the just decision of the case'. Section 311 of the said Code has to be read in conjunction with section 165 of the said Act as it is complementary to each other and not mutually exclusive. In section 311 of the said Code a court has an absolute discretion and confers very wide power which the court enjoys before the stage of pronouncing the judgment. In other words, the courts power to examine a witness at any stage of the proceeding for ends of justice is paramount and unless it is not justified or not in the interest of justice a Superior Court should not sit in judgment over the same. 15. Here the circumstances of the murder demonstrate very dark features. In other words, the courts power to examine a witness at any stage of the proceeding for ends of justice is paramount and unless it is not justified or not in the interest of justice a Superior Court should not sit in judgment over the same. 15. Here the circumstances of the murder demonstrate very dark features. It is the passion for truth which should preclude any court to resist itself from disallowing the prayer of the prosecution for adducing further additional witnesses. or such other or further other additional witnesses which the prosecution may think fit and proper and the court in its widest discretion deems fit and proper to allow it. So that the ultimate purpose-the quest of justice is achieved. 16. That being so the first part of the agony which has haunted the accused/petitioner in objecting to the examination of the additional witnesses featuring from item Nos. 1 to 7 of the petition dated 06.3.2002 has absolutely no basis and has to be spurned. 17. Now with regard to second fact touching on the question of the electronic media and the evidence thereof. 18. The Information and Technology Act, 2000 has been enacted by Parliament to gear up with the challenges of contemporary times as the traditional concept of the law of evidence faces the challenge with the introduction of the electronic method and computer technology. Accordingly, the provisions have also been made in the said Act in the said regard viz. sections 65A, 65B etc. 19. One has to view the conceptual aspect in the light of the Information and Technology Act, 2000 with the amendment in the said Act. 20. Serious exception was taken on behalf of the accused/petitioner with regard to allowing the prayer of the prosecution for examining Dr. Rahit Kumar Basu and his team of Khas Khabar as the same would not be legally permissible and it would tend to give rise to a parallel investigation and an extra-Constitutional Authority which the court should not allow. I has assessed the submissions of Shri Bose, Shri Dutta the learned Senior Advocate in the light of the legal position. 21. The learned advocate for the accused/petitioner has raised a mist. I am to demystify it and find out the actual position; otherwise, it would be running away from reality. I has assessed the submissions of Shri Bose, Shri Dutta the learned Senior Advocate in the light of the legal position. 21. The learned advocate for the accused/petitioner has raised a mist. I am to demystify it and find out the actual position; otherwise, it would be running away from reality. The argument made on behalf of the accused/ petitioner, in my humble view, has absolutely no basis in this regard and I am of the firm view that the evidence of Dr. Rahit Kumar Basu and his team of Khas Khabar can very well go in as evidence. Section 4 of the Information and Technology Act, 2000 makes provision for the material collected in electronic forum and section 65B of the said Act clearly speaks of any Information contained in an electronic records stored, recorded or copy shall also be a document and as such, I see no difficulty as to why the prayer for prosecution in allowing the evidence of Dr. Rahit Kumar Basu and his team which is quite admissible in evidence during the trial. 22. I am afraid we cannot shut our eyes to the reality and have to accept it. The argument of the learned Advocate for the accused/petitioner, I am equally afraid is not only archaic but apart from its vintage value does not have any force. I recall Mackardie, J. that law must progress, otherwise it shall perish. If the argument of the learned Advocate for the accused/ petitioner has to be accepted then we have to stand-still in the history of time and instead of meeting the challenges of the new millennium poised for the new century then I am very much afraid we will have to retrace ourselves following the path charted by the learned Advocate for the accused/ petitioner to the days even anterior to Lord Maculay and his first Commissioners of the Law Commission in the fag-end of 18th Century. 23. I fully agree with Shri Dutta, learned Senior Advocate that we have to live up to the expectations of the new challenges and open up new horizons and not to restrict ourselves to parochial and medieval views which are situated best for the archives. 24. 23. I fully agree with Shri Dutta, learned Senior Advocate that we have to live up to the expectations of the new challenges and open up new horizons and not to restrict ourselves to parochial and medieval views which are situated best for the archives. 24. Accordingly, in view of the discussion held here-in-above I see no difficulty with that portion of the prayer of the prosecution in item No.8 of the petition dated 06.3.2002 for adducing the evidence of Dr. Rahit Kumar Basu and his team of the Khas Khabar. I am of the view that if such evidence is allowed to be adduced it will only focus a true and authentic picture and will definitely spell out the actual state of affairs. 25. I am unable to persuade myself to the submission of the learned Advocate for the accused/petitioner that this will allow a co-lateral investigation beyond the statute in view of the fact that as today the profile of crime has changed law has also to progress to face new dimensions and cannot stand mute with conventional change of the said Act and trappings of the procedural laws in the Museum of Time. It has to progress or it shall perish. The Electronic Media Report can very well go in evidence in view of the discussions held here-in-above and I am of the considered opinion that the same has rightly been allowed by the learned Trial Judge which will only unveil the truth and throw a clear light on a macabre crime. As such, I do not find any merit in the Revisional Application at all. 26. Before I take leave from the heat and dust raised in the application culminating from the jinxed trial which I find has suffered a roller-coaster movement on account of procrastinating attitude adopted by the accused/ petitioner should be given some momentum, keeping in mind' the stages punctuated with the interregnum journey of the present petitioner before this court preceded by the same of the co-accused on another occasion. 27. The learned Trial Court is requested so. 28. 27. The learned Trial Court is requested so. 28. I, having found no merit in the present application dismiss the same with the finding that the order No. 20 dated 11.3.2002 is affirmed and now the learned Trial Court would examine the witnesses enumerated in the petition dated 06.3.2002 expeditiously in an unhindered fashion and follow the schedule which is originally fixed and it is also made clear that in event the prosecution so feels that it desires to examine such other or further other witnesses or documents in support of its case they will be at liberty to do so and the learned Trial Judge would allow the same and needless to say, that the defence would have adequate opportunity to rebutt the same by way of such cross-examination. 29. As a clarification I also further make it clear that the learned Trial Court shall not be foreclosed at any stage from exercising its power under sections 91 and 311 of the said Code and section 165 of the said Act to arrive at its subjective satisfaction for reaching a decision in the trial irrespective of the dismissal of this application. Revisional application dismissed. No order as to costs. 30. Now, the learned Trial Court would proceed with the trial by first allowing the witnesses sought to be adduced by the prosecution in its petition dated 06.3.2002 in accordance with law. 31. After this order was dictated and pronounced in open court the learned Senior Advocate Shri Dutta for the de facto/complainant prays that the order should be communicated by special messenger at his costs in view of the fact as stated by him the next date of the trial is fixed on 26.9.2002. Revisional application dismissed.