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2007 DIGILAW 231 (RAJ)

Narsi Ram Meena v. State of Rajasthan

2007-02-01

HARBANS LAL

body2007
JUDGMENT : 1. These two petitions under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter called in short as Cr.P.C.) have been filed by the complainant-petitioner challenging the orders dated 2.2.2006 and 3.4.2006 respectively, passed by the learned A.D.J. (Fast Track) No. 1, Jaipur City, Jaipur in Sessions Case No. 9/2005. 2. Briefly stated, the relevant facts are that during the course of trial of the abovesaid sessions case, the prosecution filed an application on 12.9.2005 along-with the birth certificate of Kumari Jyotsana who was born on 5.2.1989 in Santokba Durlabhji Medical Hospital, Jaipur along-with her sister as twins stating that the birth certificate of Kumari Jyotsana could not be produced in evidence inadvertently which may be now taken on record, but after hearing the learned counsel for the parties, the said application was dismissed on 2.2.2006. 3. Thereafter, another application under Section 294/311 Cr.P.C. was filed on 3.4.2006 stating that the Investigating Officer has wilfully not seized the birth certificate of Kumari Jyotsana. As per the birth certificate, her age was 14 years, 1 month and 23 days on the date of occurrence. Section 59 of the Indian Evidence Act provides that all the facts except (conditions of documents or electronics records) may be proved by oral evidence. Since the date of birth of Kumari Jyotsana is mentioned in the birth certificate, the same can be proved by producing the birth certificate. It was also prayed that the birth certificate of Kumari Jyotsana PW-1 be taken on record and the accused be required to admit or deny the same and in case he denies the document, Sub-Registrar of Births and Deaths posted in Jaipur Nagar Nigam, Jaipur may be summoned along-with relevant documents so that justice may be done to the parties. After hearing learned counsel for the parties, this application was also dismissed on 3.4.2006 itself. Being aggrieved by the said orders, the petitioner-complainant has challenged the orders in these petitions which substantially involve the same controversy and seek same relief. So, they have been heard together and are being disposed of by this common order. 4. I have heard at length learned counsel for the parties and the learned Public Prosecutor for the State and have perused the relevant documents and the impugned orders. 5. Learned counsel for the petitioner-complainant has contended that the impugned-orders dated 2.2.2006 and 3.4.2006 are erroneous, illegal and without jurisdiction. 4. I have heard at length learned counsel for the parties and the learned Public Prosecutor for the State and have perused the relevant documents and the impugned orders. 5. Learned counsel for the petitioner-complainant has contended that the impugned-orders dated 2.2.2006 and 3.4.2006 are erroneous, illegal and without jurisdiction. The Court below has not considered the import of Section 59 of the Indian Evidence Act, 1872. It has also not kept in view the law laid down by the Hon'ble Apex Court and this Court in a catena of cases. He has also submitted that the first application has been rejected on the ground that neither any specific provision has been mentioned in the application nor the same has been shown at the time of arguments. The second application has been rejected solely on the ground that it was inordinately belated. According to the learned counsel, these are not the valid grounds for rejecting the applications. The orders of the learned Court below tantamount to the abuse of the process of the Court and interference of this Court is called for and justified for securing the ends of justice. 6. Learned counsel for the accused-non-petitioner has vehemently opposed the petitions. He has submitted that the powers vested in the Court under Section 311 Cr.P.C. cannot be invoked to fill-up the lacuna in the prosecution case. The Court has already allowed the prayer of the prosecution to summon and examine the medical officer with regard to the age of the prosecutrix. If the instant petitions are allowed, it would be never ending process. The petitioner-complainant or the prosecution may come forward again with some other evidence to fill-up the lacuna in the prosecution case. According to him, allowing these petitions would substantially result in fulfilling the lacuna in the prosecution case which is not permissible under the law. 7. I have carefully considered the rival submissions made at the bar and have also gone through the authorities referred to on either side. 8. It would be apposite to extract here Section 311 Cr.P.C. which reads as under: 311. 7. I have carefully considered the rival submissions made at the bar and have also gone through the authorities referred to on either side. 8. It would be apposite to extract here 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." 9. It is apparent from a bare perusal of the aforesaid section that it has two parts. The first part which is discretionary, empowers the Court to examine at any stage of inquiry, trial or other proceedings any person as a witness or any person present in Court though not summoned as a witness or recall and reexamine any person already examined and the second part which is mandatory compels the Court and makes it obligatory on the Court to examine any person as a witness if his evidence appears it to be essential to the just decision of the case. This section does not confer on any party any right to examine, cross-examine or re-examine any witness. Section 311 Cr.P.C. is complementary to Section 165 of the Indian Evidence Act. No doubt, these sections confer vast and wide powers on the Courts to elicit all necessary materials by playing an active role in the process of collecting evidence. The object of these provisions is to enable the Court to arrive at truth irrespective of fact that the prosecution or the defence has failed to produce some evidence which is necessary for the just and proper decision of the case and to up-hold the truth. The very fact that the discretion given to the Court under Section 311 Cr.P.C. is very wide imposes a corresponding caution on the Court for the exercise of such discretion. The discretionary power conferred under this section ought to be invoked as the exigencies of justice require. These powers ought to be exercised judicially with circumspection. The very fact that the discretion given to the Court under Section 311 Cr.P.C. is very wide imposes a corresponding caution on the Court for the exercise of such discretion. The discretionary power conferred under this section ought to be invoked as the exigencies of justice require. These powers ought to be exercised judicially with circumspection. The powers conferred upon and discretion vested in the Court are to prevent irretrievable or immeasurable damage to the cause of the society, public interest and miscarriage of justice. These powers cannot be and should not be exercised in a routine manner. However, it has to be noted and kept in view that the second part of Section 311 Cr.P.C. does not allow any discretion to the Court. It rather obligates and binds the Court to take necessary steps if the fresh evidence to be obtained is essential to the just decision of the case. The Court can allow production of material and evidence at any stage. 10. In the instant case, even a bare look at the impugned orders would reveal that the learned Court below has not at all considered as to whether taking on record the documents sought to be produced and the evidence sought to be examined is essential for the just decision of the case or not. As indicated above, it has rejected the first application on the ground that no provision of law has been mentioned in the application and the same has not been pointed out at the time of arguments on the application. The second application has been rejected solely on the ground that it is inordinately belated. But it has not at all examined the case as to whether the materials sought to be produced and the evidence sought to be examined is essential for the just decision of the case or not. Therefore, the grounds on which both the applications have been rejected are wholly untenable and cannot be sustained. 11. It is undisputed that the age of the prosecutrix Kumari Jyotsana PW-1 is the material fact in issue in this case for the just decision of the charge of rape against the accused non-petitioner. In this regard, the birth certificate and entry in admission register of the school in which Kumari Jyotsana was a student are relevant documents for the just decision of the controversy with regard to her age. In this regard, the birth certificate and entry in admission register of the school in which Kumari Jyotsana was a student are relevant documents for the just decision of the controversy with regard to her age. Since the entry with regard to the date of birth of Kumari Jyotsana in the register of births and deaths being maintained by Jaipur Nagar Nigam, Jaipur as per Section 12/17 of the Birth and Death Registration Act, 1969 read with Rule 8 of the Rajasthan Birth and Death Registration Rules, 2000 is a relevant and material document. Certified copies of these documents are admissible into evidence under Section 35 of the Indian Evidence Act as they are made by the concerned officials in discharge of their official duties. 12. Learned counsel for the petitioner has contended that the Court could allow the production of material and evidence at any stage. Any laches or mistakes on the part of the prosecution during the conduct of the case cannot be understood as the lacuna which could not be fulfilled. He has relied upon the case of Rajendra Prasad v. The Narcotic Cell through its Officer-in Charge, Delhi . Learned counsel for the accused-non-petitioner has heavily relied upon this case and has contended that if the prosecution is permitted to produce the material and examine evidence, that would tantamount to fulfilling the lacuna in the prosecution case which is not permissible under the law. 13. A similar controversy was considered ill the aforesaid case. In the said case, after the close of the evidence of both the sides, an application was moved at the instance of the prosecution for re-summoning two witnesses who had already been examined for the purpose of proving certain documents for prosecution. They were further examined and the evidence was once again closed and the case was posted for hearing arguments. After hearing the arguments in piece-meal on different days, Public Prosecutor moved an application seeking permission to examine PW-21 and two other persons. The application was stoutly opposed, but the trial Court allowed the said application in exercise of its powers under Section 311 Cr.P.C. The said order was challenged in revision before the High Court of Delhi. Though it was directed against an interlocutory order, but this aspect of the matter was not considered and the High Court entertained the revision and dismissed it. Though it was directed against an interlocutory order, but this aspect of the matter was not considered and the High Court entertained the revision and dismissed it. The said order was challenged before the Hon'ble Apex Court and it was contended on the basis of observations made in the case of Mohanlal Shamji Soni v. Union of India, AIR 1991 SC 1346 , that the Court in exercise of its powers under Section 311 of the Code shall not use such power for filling-up the lacuna left by the prosecution. In this context their Lordships of the Hon'ble Apex Court observed in paras 7 to 10 as under; It is a common experience in criminal Courts that defence counsel would raise objections whenever Courts exercise powers under Section 311 of the Code or under Section 165 of the Evidence Act by saying that the Court could not fill the lacuna in the prosecution case. A lacuna in prosecution is not to be equated with the fallout of an oversight committed by a Public Prosecutor during trial, either in producing relevant materials or in eliciting relevant answers from witnesses. The adage to is human is the recognition of the possibility of making mistakes to which humans are prone. A corollary of any such laches or mistakes during the conducting of a case cannot be understood as the lacuna which a Court cannot fill up. 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 fore-closed 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 perform better. 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 perform better. The very same decision Mohan Shamji Soni v. Union of India (supra) which cautioned against filling up lacuna has also laid down the ratio thus : It is, therefore, clear 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 requirements of justice command the examination of any person which would depend on the facts and circumstances of each case. Dealing with the corresponding section in the old Code Section 540 Hidayutallah J. (as the learned Chief Justice then was) speaking from a three-judge bench of this Court had said in Jamatraj Kevalji Govani v. The State of Maharashtra, 1967 (3) SCR 415 , as follows : It would appear that in our criminal jurisdiction, statutory law confers a power in absolute terms to be exercised at any stage or the trial to summon a witness or examine one present in Court or to recall a witness already examined, and makes this-the duty and obligation of the Court provided the just decision of the case demands it. In other words, where the Court exercises the power under the second part, the inquiry cannot be whether the accused has brought anything suddenly or unexpectedly, but whether the Court is right in thinking that the new evidence is needed by it for a just decision of the case. Accordingly, it was held as under : We cannot therefore accept the contention of the appellant as a legal proposition that the Court cannot exercise power of resummoning any witness if once that power was exercised, nor can the power be whittled down merely on the ground that prosecution discovered laches only when the defence highlighted them during final arguments. The power of the 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 power of the 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 nor frowned at. The appeal was, therefore, dismissed. 14. Learned counsel for the accused-non-petitioner has contended that the aforesaid case is distinguishable on facts from the instant case in as much as in that case the accused appellant was on bail whereas the accused non petitioner is in custody in the instant case. But, that does not seem to me to be such a distinguishing feature on the basis of which the law laid down in the aforesaid authority can be said to be inapplicable to the facts of the present case. The law laid down in the aforesaid authority squarely governs the instant case and in this view of the matter, therefore, it cannot be said that allowing the petitions and consequently permitting the prosecution to produce materials and other evidence would tantamount to filling up of lacana in the prosecution case. Indeed, the evidence sought to be produced is pre-eminently essential for the just decision of the case and it is obligatory on the Court to allow production of such evidence for securing the ends of justice. The orders of the learned Court below having ignored, this fact appear to have resulted in abuse of the process of the Court. 15. As held in Umesh Chandra v. State of Rajasthan, (1982) 2 SCC 202 the question of determination of age of the prosecutrix is the fact in issue in the instant case and the entries with regard to the date of birth of the prosecutrix is material evidence for the just decision of the aforesaid question. These entries with regard to the date of birth of the prosecutrix were made ante litem motem, when the date of birth or the age of the prosecutrix was not called in question. Twin female children were born to Mrs. Asha wife of L.N. Meena on 5.2.1989 in Santokba Durlabhji Medical Hospital, Jaipur and their birth was got registered at Sr. Nos. 5071 and 5072 on 21.4.1989 in the register of births and deaths maintained by Jaipur Nagar Nigam, Jaipur. Twin female children were born to Mrs. Asha wife of L.N. Meena on 5.2.1989 in Santokba Durlabhji Medical Hospital, Jaipur and their birth was got registered at Sr. Nos. 5071 and 5072 on 21.4.1989 in the register of births and deaths maintained by Jaipur Nagar Nigam, Jaipur. So, prima facie these documents cannot be said to be suspicious or prepared afterwards. 16. Learned counsel for the accused-non-petitioner has referred to the case of P. Chhaganlal Daga v. M. Sanjay Shaw, (2003) 11 SCC 486 . It was a complaint under Section 138 of the Negotiable Instruments Act, 1881. When the case was posted for judgment the complainant sought permission to produce additional material i.e. a postal receipt. The trial Court granted the permission even at that stage. The High Court held that the production of the said document at that belated stage was only to fill up the lacuna. The Apex Court held that granting of permission by the trial Court even at the stage of judgment was within the powers of the trial Court. This authority rather supports the case of the petitioner-complainant. 17. In Sudham Chandra Roy v. Gobinda Mallick, Crimes 1986 (2) 568 , the Calcutta 1 ligh Court has held that the learned Magistrate was justified in disallowing the prayer made by the petitioner after the lapse of 2-1/2 years after the investigation of the case to produce fresh evidence. The view taken in this case does not find support from the view taken by the Hon'ble Apex Court in the aforementioned case and it is of little avail to the accused-non-petitioner. 18. In view of the foregoing discussion, therefore, the orders passed by the learned trial Court on the applications filed by and on behalf of the prosecution are unsustainable and interference by this Court in these orders is called for and justified for securing the ends of justice. 19. Consequently, both these petitions under Section 482 Cr.P.C. are allowed and the orders dated 2.2.2006 and 3.4.2006 passed by the learned A.D.J. (Last Track) No. 1, Jaipur City, Jaipur in Sessions Case No. 9/2005 are set-aside and the permission to produce the materials and evidence as sought for is granted to the petitioner-complainant.Petitions allowed.