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2004 DIGILAW 1283 (PNJ)

Manjit Kaur And Ors. v. State Of Punjab

2004-11-23

M.M.KUMAR

body2004
Judgment M.M.Kumar, J. 1. This petition tiled under Section 401 Criminal Procedure Code, 1973, (for brevity, Cr.P.C.) prays for quashing the order dated 9-9-2004 passed by the Additional Sessions, Judge, Gurdaspur, allowing an application under Section 311, Cr.P.C. filed by the prosecution at the stage when the case was fixed for pronouncement of the judgment. 2. The prosecution version in brief was that one Harnek Singh suspected his wife Manjit Kaur having illicit relations with some boy who was living at her parental village. He told his mother, who is the complainant, that he had seen his wife Manjit Kaur with his own eyes talking to that boy. It has further been alleged that the complainant mother and Harnek Singh tried to prevail upon Manjit Kaur to forget the past and settle in her matrimonial home but she did not follow the sane counsel. The illicit relationship was disclosed to her parents. The complainant further stated that she had gone to Jammu and in her absence Manjit Kaur had gone to Batala, along with Harnek Singh. On account of the illicit relations of Manjit Kaur, Harnek Singh her husband, was grief sticken and took some poisonous substance at her house and he died. It is alleged that Manjit Kaur wife, Swaran Singh, her father and her brothers have caused irritation to Harnek Singh which led to extreme step of consuming poison. The aforementioned version has been disclosed in the FIR by complainant Surjit Kaur who is mother of deceased Harnek Singh. 3. After due investigation of the case, the police filed challan only against Manjit Kaur under Section 306, IPC. The basis of not filing any challan against the father of Manjit Kaur, Swaran and her brothers Sher Singh and Sukwinder Singh was that the father of Harnek Singh, namely, Amarjit Singh had made a statement to the police under Section 161, Cr. P.C. that his wife complainant Surjit Kaur has implicated them due to the revengeful intention and they were all innocent. However, during the trial when Surjit Kaur appeared as a witness, she reiterated her statement made in the FIR and named Swaran Singh, father of Manjit Kaur, Sher Singh and Sukhwinder Singh (who are her brothers) as accused. Accordingly, charge was amended and other accused were summoned under Section 319, Cr. However, during the trial when Surjit Kaur appeared as a witness, she reiterated her statement made in the FIR and named Swaran Singh, father of Manjit Kaur, Sher Singh and Sukhwinder Singh (who are her brothers) as accused. Accordingly, charge was amended and other accused were summoned under Section 319, Cr. P.C. On 19-1-2004, Amarjit Singh P.W. 6, had made a statement before the Court stating that his son was given poison by the accused in order to eliminate him. The accused started claiming that Harnek Singh had committed suicide. However, the prosecution moved an application under Section 311, Cr. P.C. to summon Amarjit Singh, which has been allowed by the Learned Sessions Judge. The operative part of the order reads as under :- - "6. In my considered opinion in the instant case the challan was filed against accused Manjit Kaur alone under Section 306, 34, IPC Police Station Sadar Batala. However, on the basis of application filed by the prosecution under Section 319, Cr. P.C. the remaining three accused namely Swaran Singh, Sher Singh and Sukhwinder Singh were summoned to stand the trial. As such, charge was framed against all the four accused, under Section 306, IPC. 7. From the challan put in by the police and the charge framed by the Court the trial of the accused proceeded under Section 306, IPC and the witnesses deposed accordingly. However, statement of P.W. 6 Amarjit Singh father of deceased Harnek Singh has changed the entire complexion of the case. In this context, I shall refer to the statement of P.W. 6 Amarjit Singh, who has stated that his son was given poison by the accused in order to eliminate him and later on accused started saying that Harnek Singh has committed suicide. In fact P.W. 6 Amarjit Singh has denied the prosecution version of suicide and given evidence to the effect that his son Harnek Singh was poisoned and killed by the accused. 8. In my considered opinion the statement of P.W. 6 Amarjit Singh discussed above cannot be brushed aside lightly in view of the fact that P.W. 6 Amarjit Singh was the father of the deceased Harnek Singh. Secondly, it does not appeal to logic that Harnek Singh has committed suicide in the residence of his in laws. 8. In my considered opinion the statement of P.W. 6 Amarjit Singh discussed above cannot be brushed aside lightly in view of the fact that P.W. 6 Amarjit Singh was the father of the deceased Harnek Singh. Secondly, it does not appeal to logic that Harnek Singh has committed suicide in the residence of his in laws. If he had any grudge against the illicit relations of his wife Manjit Kaur even then it does not make out a case of committing suicide by Harnek Singh at the residence of his in-laws. From the above discussion it is apparent that the prosecution story of suicide is doubtful and requires further investigation. 4. Mr. Ashok Saini learned counsel for the petitioners has argued that after 19-1-2004, when the statement of Amarjit Singh by the trial Court was recorded to the effect that his son was given poison by the accused no effort was made by the prosecution to file any application and the case was fixed for arguments. It was adjourned 4-5 times for pronouncement of order. After the judgment has been reserved for pronouncement of order, an application was filed by the prosecution for recalling Amarjit Singh P.W. 6 for re-examination. Learned counsel has referred to the statement of Amarjit Singh recorded under Section 161, Cr.P.C. on 28-5-2000, exonerating all the accused except Manjit Kaur whom he held responsible for suicide of his son Harnek Singh. The other accused were declared innocent. The statement of Amarjit Singh under Section 161, Cr.P.C. has been placed on record as Annexure P-4. On the basis of the aforementioned fact, the learned counsel has argued that once the arguments in the trial have been heard and the orders are reserved, there is no possibility for recalling the witness for further examination, under Section 311, Cr.P.C. In support of his submission, learned counsel has placed reliance on a judgment of Kerala High Court in Sajeendraan V/s. Thalakulathoor Grama, 2004 (1) Rec Cri R 611 : (2004 Cri LJ 555). 5. Having heard the learned counsel for the petitioners, I am of the considered view that there is no legal infirmity in the Order passed by the learned Additional Sessions Judge warranting interference of this Court. It is well settled that under Section 311, Cr. 5. Having heard the learned counsel for the petitioners, I am of the considered view that there is no legal infirmity in the Order passed by the learned Additional Sessions Judge warranting interference of this Court. It is well settled that under Section 311, Cr. P.C. plenary and wide powers have been conferred on the trial Court to examine and additional evidence, provided it is considered essential to the just decision of the case. In order to appreciate the controversy, it would be necessary to make a reference to Section 311, Cr. P.C. which reads as under :- - 311. Power to summon material witness, or examine person present.-- 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; and 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. 6. The aforementioned provision has been subject-matter of consideration of the Supreme Court in the case of Mohanlal Shamji Soni V/s. Union of India, 1991 Supp (1) SCC 271 : (1991 Cri LJ 1521). It has been held that Section 311 Cr. P.C. (Section 540 of the old Code) is manifestly in two parts as the use of word may in the first part and that of shall in the subsequent part makes it evident. The second part is mandatory. The observations of their Lordships in that regard read as under :- - " 7. .......... This section is manifestly in two parts, whereas the word used in the first part is "may" the word used in the second part is "shall". In consequence, the first part which is permissive gives purely discretionary authority to the criminal code and enables it at any stage of enquiry, trial other proceedings under the Code to act in one of the three ways, namely. (1) to summon any person as a witness, or (2) to examine any person in attendance, though not summoned as a witness, or (3) to recall and re-examine any person already examined. 8. (1) to summon any person as a witness, or (2) to examine any person in attendance, though not summoned as a witness, or (3) to recall and re-examine any person already examined. 8. The second part which is mandatory imposes an obligation on the Court -- (1) to summon and examine, or (2) to recall and re-examine any such person if his evidence appears to be essential to the just decision of the case. 9. The very usage of the words such as any Court, at any stage, or of any enquiry, trial or other proceedings, any person and any such person clearly spells out that this section is expressed in the widest possible terms and do not limit the discretion of the Court in any way, however, the very width requires a corresponding caution that the discretionary power should be invoked as the exigencies of justice require and exercised judicially with circumspection and consistently with the provisions of the Code, the second part of the section does not allow for any discretion but it binds and compels the Court to take any of the aforementioned two steps if the fresh evidence to be obtained is essential to the just decision of the case. 10. to 15. xx xx xx xx 16. The second part of Section 540 as pointed out albeit imposes upon the Court an obligation of summoning or recalling and re-examining any witness and the only condition prescribed is that the evidence sought (o be obtained must be essential to the just decision of the case. When any party to the proceedings points out the desirability of some evidence being taken, then the Court has to exercise its power under this provision -- either discretionary or mandatory --depending on the facts and circumstances of each case, having in view that the most paramount principles underlying this provision is to discover or to obtain proper proof of relevant facts in order to meet the requirements of justice." 7. The Supreme Court has also held that the power under Section 311, Cr. P.C. should be invoked only with the object of discovering relevant facts or obtaining proper proof of such facts for a just decision of the case and the same should not be used for filling up the lacuna left by the prosecution or by defence to the disadvantage of the case. P.C. should be invoked only with the object of discovering relevant facts or obtaining proper proof of such facts for a just decision of the case and the same should not be used for filling up the lacuna left by the prosecution or by defence to the disadvantage of the case. It has also been observed that the power can be used any time before the pronouncement of the order. The observation of their Lordships in that regard reads as under :- - 18. The next important question is whether Section 540 gives the Court carte blanche drawing no underlying principle in the exercise of the extraordinary power and whether the said section is unguided, uncontrolled and uncanalised. Though Section 540 (Section 211 of the new Code) is, in the widest possible terms and calls for no limitation, either with regard to the stage at which the powers of the Court should be exercised, or with regard to the manner in which they should be exercised, that power is circumscribed by the principle that underlines Section 540, namely, evidence to be obtained should appear to the Court essential to a just decision of the case by getting at the truth by all lawful means. Therefore, it should be borne in mind that the aid of the section should be invoked only with the object of discovering relevant facts or obtaining proper proof of such facts for a just decision of the case and it must be used judicially and not capriciously or arbitrarily because any improper or capricious exercise of the power may lead to undesirable results. Further it is incumbent that due care should be taken by the Court while exercising the power under this section and it should not be used for filling up the lacuna left by the prosecution or by the defence or to the disadvantage of the accused or to cause serious prejudice to the defence of the accused or to give an unfair advance to the rival side and further the additional evidence should not be received as a disguise for a retrial or to change the nature of the case against either of the parties. 27. 27. The principle of law that emerges from the views expressed by this Court in the above decisions is that the criminal Court has ample power to summon any person as a witness or recall and re-examine any such person even if the evidence on both sides is closed and the jurisdiction of the Court must obviously be dictated by exigency of the situation, and fair play and good sense appear to be the only safe guides and that only the requirements of justice command the examination of any person which would depend on the facts and circumstances of each case." 8. The aforementioned view taken by the Supreme Court in Mohanlal Shamji Sonis case (1991 Cri LJ 1521) (supra) has been followed in the case of Rajendra Prasad v. Narcotic Cell, (1999) 6 SCC 110 : (1999 Cri LJ 3529). 9. When the facts of the present case are examined in the light of the principles laid down by the Supreme Court while interpreting Section 311, Cr. P.C., it becomes evident that the impugned order passed by the learned Additional Sessions Judge does not suffer from any illegality. The father of deceased, Harnek Singh, has earlier made a statement under Section 161 Cr. P.C. exonerating Swaran Singh, who is the father of Manjit Kaur (father-in-law of deceased Harnek Singh). He has also exonerated her brothers Sher Singh and Sukhwinder Singh. When complainant Surjit Kaur, mother of the deceased, appeared as a witness before the trial Court, the aforementioned Swaran Singh, Sher Singh and Sukhwinder Singh were summoned under Section 319, Cr. P.C. when Amarjit Singh, appeared before the trial Court on 19-1-2004 as P.W. 6, he made a statement that his son was given poison by the accused in order to eliminate him and the version of the accused that he committed suicide has come into conflict with the statement of Amarjit Singh. Although the judgment was reserved after the arguments yet the prosecution filed an application under Section 311, Cr. P.C. to summon Amarjit Singh once again to reach the just conclusion and to meet the ends of justice. The application has been rightly allowed because the statement of Amarjit Singh. P.W. 6 cannot be brushed aside as he is the father of deceased, Harnek Singh. P.C. to summon Amarjit Singh once again to reach the just conclusion and to meet the ends of justice. The application has been rightly allowed because the statement of Amarjit Singh. P.W. 6 cannot be brushed aside as he is the father of deceased, Harnek Singh. Moreover, it is unlikely that deceased Harnek Singh would commit suicide at the house of his in-laws on account of illicit relations of his wife Manjit Kaur with someone at her parental village. The trial Court has doubted the prosecution story of suicide and considered it essential to the just decision of the case. It appears that the trial Court is grappling with the two versions of suicide and elimination. With a view to fathom the truth, recall of Amarjit Singh, P.W. 6 is essential and therefore, the impugned order does not suffer from any legal infirmity. I am further of the view that in the facts and circumstances of the case, the impugned order would not amount to filing up the lacuna in the prosecution version so as to cause prejudice to the accused-petitioners. It is needless to say that adducing of any additional evidence against the accused-petitioners, the accused are to be given a fair and reasonable opportunity to rebut that evidence which may be brought on record by recall of the witness. 10. The argument of the learned counsel based on the Kerala High Court in Sajeendrans case (2004 Cri LJ 556) (supra) does not advance his case. With utmost respect to the view taken by the Kerala High Court, it has failed to take into consideration observation made by the Supreme Court in para 21 of its judgment in Moharilal Shamji Sonis case (1991 Cri LJ 1521) (supra) although the judgment has been referred. The observation of the Supreme Court in Mohanlal Shamji Sonis case (supra) can be quoted with advantage which reads as under :- - "Section 540 allows the criminal Court to invoke its inherent power at any stage without qualifying any limitation or prohibition. It can summon any person as a witness or recall and re-examine any such person as long as the Court retains seisin of the criminal proceedings even if evidence on both sides is closed. It can summon any person as a witness or recall and re-examine any such person as long as the Court retains seisin of the criminal proceedings even if evidence on both sides is closed. An enquiry or trial in a criminal proceedings comes to an end or reaches its finality when the order or judgment is pronounced and until then the Court has power to use this section." 11. Moreover, at best, it can be considered as a mistake on the part of the prosecution to examine Amarjit Singh, PW-6. A lacuna in the prosecution cannot be equated with the fall out of an oversight committed by a public prosecutor during the trial in eliciting relevant answers from witnesses or humans are prone to err. The observation of the Supreme Court in Rajendra Prasads case (1999 Cri LJ 3529) (supra) further goes on to indicate that even delay in making such an application after the defence has highlighted the same during final arguments, would not result into any limitation on the exercise of power under Section 311 Cr. P. C. A reference in this regard is essential to the observations made in para 12 of the judgment and the same reads as under:- - "It cannot be said as a legal proposition that the Court cannot exercise power of re-summoning any witness if once that power was exercised, nor can the power be whittled down merely on the ground that the prosecution discovered laches only when the defence highlighted them during final arguments. The power of Court is plenary to summon or even recall any witness at any stage of the case if the Court considers it necessary for a just decision. The steps which the trial Court permitted in this case for resummoning certain witnesses cannot therefore, be spurned down or frowned at." 12. For the reasons aforementioned, this petition fails and the same is dismissed.