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2007 DIGILAW 927 (ORI)

Nira alias Niranjan Jena v. State of Orissa

2007-12-14

S.C.PARIJA

body2007
Judgement S. C. PARIJA, J. :- The petitioner has filed this application under S. 482, Cr. P.C. assailing the order dated 19-6-2003 passed by the Asstt. Sessions Judge, Keonjhar, in S.T. No.57/154/2000, wherein the learned trial Court by invoking its power under S. 311, Cr. P.C. has directed summoning of witnesses to be examined as Court witness. 2. The main plea of Sri S. P. Mishra, learned senior counsel appearing for the petitioner is that when the witnesses for both the prosecution and defence had already been examined and the hearing had been closed and the matter had been posted for judgment, it was not open for the trial Court to resort to S. 311, Cr. P.C. for summoning witnesses to be examined as Court witness. It is further plea of the petitioner that such invocation of power under S. 311, Cr. P.C. to summon the remaining witnesses at the time of preparation of the judgment, only after noting certain lacuna in the prosecution case, is improper and illegal, as the Court cannot fill up the lacuna in the prosecution case by invoking the power under S. 311, Cr. P.C. 3. Since the petitioner has assailed the impugned order of the trial Court on the ground that exercise of power to summon witnesses to be examined as Court witness, after conclusion of the trial and hearing of the matter and when the same was posted for judgment, it is necessary to extract relevant portions of the impugned order which are as follows : "Accused persons are present. The case is posted to to-day for judgment. At the time of preparing judgment I found the prosecution has led half baked evidence which prompted me to invoke S. 311, Cr. P.C. Let me munify my reason. x x x" xxx xxx xxx "The prosecution has examined the brother of the deceased, who appears to have been gained over. The prosecution declined to examine the aforesaid material witnesses for the reason best known to it. Had these witnesses been examined, the truth of real cause of the deceased would have been unfolded. That is why I have stated that the prosecution by leading half baked evidence conducted the case in a phlegmatic manner meaning thereby that there was an unfair trial. Had these witnesses been examined, the truth of real cause of the deceased would have been unfolded. That is why I have stated that the prosecution by leading half baked evidence conducted the case in a phlegmatic manner meaning thereby that there was an unfair trial. It is well settled that Criminal Court has ample power to summon any person as witness or recall or re-examine any such person even if the evidence of both the sides is closed and the jurisdiction of the Court obviously dictated by exigency of situation and fair play and good sense appear to be only safe guide and the only requirement of justice commands the examination of any person which would depend on the facts and circumstances of each cases. In the instant case the evidence of P.W. 4 clearly suggests that the death of the deceased was homicidal due to pressing of her neck and the injury available on her are ante-mortem in nature. Her death was within seven years of her marriage. The plea of the accused that she died on natural death belied medical evidence. In the facts situation the aforesaid material witnesses are essential to unfold the truth of the case. Therefore, by invoking S. 311, Cr. P.C. these witnesses be summoned as Court witnesses. Bench clerk is directed to issue summon to the witnesses to be examined as Court witnesses. Call on 30-6-2003 for further hearing." 4. In order to appreciate the pleading of the petitioner, it is beneficial to refer to S. 311, Cr. P.C. which is extracted below : "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 a 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 in his evidence appears to it to be essential to the just decision of the case." 5. In order to enable the Court to find out the truth and render a just decision, the salutary provisions of S. 311 are enacted whereunder any Court by exercising its discretionary authority at any stage of inquiry, trial or other proceeding can summon any person as a witness or examine any person in attendance though not summoned as a witness or recall or re-examine any person in attendance though not summoned as a witness or recall and re-examine any person already examined, who are expected to be able to throw light upon the matter in dispute, because if judgments happen to be rendered on inchoate, in conclusive and speculative presentation of facts, the ends of justice would be defeated. The very usage of the words, such as 'any Court,' 'at any stage' or 'of any inquiry, 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 of such power 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 provision of the Code. The second part of the S. 311 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. 6. The main object underlying S. 311 of the Code is that there may not be failure of justice on account of mistake of either party in bringing the valuable evidence on record or leaving ambiguity in the statements of witnesses examined from either side. The determinative factor is whether it is essential to the just decision of the case. The section is not limited only for the benefit of the accused, and it will not be an improper exercise of the powers of the Court to summon a witness under the section merely because the evidence supports the case of the prosecution and not that of the accused. As indicated above, the section is wholly discretionary. The section is not limited only for the benefit of the accused, and it will not be an improper exercise of the powers of the Court to summon a witness under the section merely because the evidence supports the case of the prosecution and not that of the accused. As indicated above, the section is wholly discretionary. The second part of it imposes upon the Magistrate an obligation that the Court shall summon and examine all persons whose evidence appears to be essential to the just decision of the case. It is a cardinal rule in the law of evidence that the best available evidence should be brought before the Court. 7. In the case of Mohanlal Shamji Soni v. Union of India, reported in AIR 1991 SC 1346 : (1991 Cri LJ 1521), the Supreme Court while dealing with the power of the Court under S. 311 of the Code have 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 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. In the case of Rajendra Prasad v. Narcotic Cell, reported in AIR 1999 SC 2292 : (1999 Cri LJ 3529), it has been held that the conventional concept is that the Court should not permit lacuna in prosecution evidence to be filled up. But, then what is meant by lacuna in a prosecution case has to be understood before deciding the case. A lacuna in prosecution is not to be equated with the fall out of an oversight committed by a public prosecutor during trial, either in producing relevant materials or in eliciting relevant answers from the witnesses. The adage 'to err is human' is the recognition of the possibility of making mistakes to which humans are proned. A corollary of any such laches of mistakes during the conducting of a case cannot be understood as the lacuna which a Court cannot fill up. The adage 'to err is human' is the recognition of the possibility of making mistakes to which humans are proned. A corollary of any such laches of 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 clearly come 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. 9. In a recent judgment of the Supreme Court in the case of Iddar v. Aabida, reported in AIR 2007 SC 3029 : (2007 Cri LJ 4313), the Hon'ble Court while discussing the object underlying S. 311 of the Code, have proceeded to hold as follows : xxx xxx xxx "But in weighing evidence, the Court can take note of the fact that the best available evidence has not been given, and can draw an adverse inference. The Court while often have to defend on intercepted allegations made by the parties, or on inconclusive inference from facts elicited in the evidence. In such cases, the Court has to Act under the second part of the section. Sometimes the examination of witnesses as directed by the Court may result in what is thought to be "filling of loopholes." That is purely a subsidiary factor and cannot be taken into account. Whether the new evidence is essential or not, must of course depend on the facts of each case, and has to be determined by the Presiding Judge." "The object of the S. 311 is to bring on record evidence not only from the point of view of the accused and the prosecution but also from the points of view of the orderly society. If a witness called by Court gives evidence against the complainant, he should be allowed an opportunity to cross-examine. The right to cross-examine a witness who is called by a Court arises not under the provisions of S. 311, but under the Evidence Act which gives a party the right to cross-examine a witness who is not his own witness. Since a witness summoned by the Court could not be termed a witness of any particular party, the Court should give the right of cross-examination to the complainant. These aspects were highlighted in Jamatraj Kewalji Govani v. State of Maharashtra, AIR 1968 SC 178 : (1968 Cri LJ 231)." 10. Considering the scope and ambit of S. 311 of the Code and the reasons assigned by the trial Court in the impugned order dated 19-6-2003, the contention of the petitioner that the summoning of the witnesses by the trial Court as Court witnesses may result in filling up of lacuna or loopholes cannot be accepted. Moreover the power of the Court to summon witness for a just decision of the case cannot be whittled down merely on the ground that such power has been exercised at a very late stage of the proceeding. 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 has taken in this case for summoning of Court witnesses cannot therefore be spurned down nor frowned upon. 11. For the reasons stated above, I hold that the order dated 19-6-2003 does not suffer from any illegality or perversity so as to warrant any interference of this Court in exercise of its inherent power under S. 482, Cr. P.C. and as such this CRLMC is dismissed, being devoid of any merit. However, it goes without saying that the trial Court shall afford a fair opportunity to the petitioners/accused to cross-examine the witness sought to be examined as Court witnesses and also to lead rebuttal evidence, if the petitioners so desire. The CRLMC is accordingly dismissed. Petition dismissed.