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2009 DIGILAW 610 (CAL)

Ranjit Kumar Poddar v. Avik Bhattacharjee

2009-08-11

P.S.DATTA

body2009
Judgment :- P.S. DATTA, J (1) CRR 2180/2009 and CRR 2181/2009 are being disposed of by this common order. (2) The O.P one Arun Kumar Bhattacharya lodged a petition of complaint with the learned CJM of Alipore being Case No.C-1798198 (T.R. No.366/98) against the present petitioner alleging offence under Section 138 of the N.I. Act. It is not necessary to go into the merit of the case. The prosecution witnesses were examined. The accused was examined under Section 313 of the Cr.P.C. Defence also examined its witness and argument was heard. The stage was set for delivery of judgment. Before delivery of judgment an application was taken out by the complainant under Section 311 of the Cr.P.C. Learned trial court observed that provision of Section 311 Cr.P.C. praying for an order for examination of one Subhro Kanti Ganguly on the ground that evidence of the said witness is very much necessary for clarification of the stand of the accused and also to assist the court in the matter of arriving at a just decision. The petition was resisted by the accused primarily on the ground that the prayer is a belated one and it is intended to fill up the lacunae by invoking the provision of Section 311 of the Cr.P.C. can be availed of if it appears to be the court that evidence of a certain person is essential to arrive at a just decision of the case and the trial of a case continues till delivery of judgment. (3) It was further observed that it became almost an admitted position from the respective cases through evidence on record that out of a sum of Rs. 1,60,000 payable to the complainant the accused paid a sum of Rs. 1,50,000 and the dispute between the parties was with regard to the question as to whether accused had really made an assurance to the complainant to make payment of interest over the said original amount. However, learned trial court allowed the application of the petitioner. (4) In the other case being Case No.C-1945/98 being T.R. No.361/98 the position was the same. The facts are identical and the parties are the same. Since another cheque was issued a separate case was instituted by the complainant against the accused. However, learned trial court allowed the application of the petitioner. (4) In the other case being Case No.C-1945/98 being T.R. No.361/98 the position was the same. The facts are identical and the parties are the same. Since another cheque was issued a separate case was instituted by the complainant against the accused. (5) During the pendency of the trial, the complainant died and his son Abhik Bhattacharya who is the O.P. in this application was permitted by the learned trial court to proceed with the criminal cases. (6) The question involved in this application is whether the learned trial court is justified in invoking its jurisdiction under Section 311 of the CrPC. (7) Mr. Kaji Safiulla, learned counsel for the petitioner first drew my attention to paragraph 2 of the petition of complaint wherein it has been averred that the accused was introduced to the complainant by the agent and close confident Subhro Kanti Ganguly. Thus it was not unknown to the complainant that Subhro Kanti Ganguly could be cited as a witness. The name of Subhro Kanti Ganguly cannot be said to have been detected or discovered by the complainant after the trial ended but the complainant did not take any step for taking out summons under Section 254(2) of the Cr.P.C. for examination of Subhro Kanti Ganguly and when no leave was taken from the Magistrate under the said provision of the Cr.P.C. the complainant cannot be allowed to take recourse to Section 311 of the Cr.P.C. just to gain an advantage over the accused with oblique motive of filling up the lacunae. Therefore, in the circumstances of the case, the complainant should not have been allowed to examine Subhro Kanti Ganguly. The second branch of argument of Mr. Safiulla is with respect to the provision of Section 353 of the CrPC which I reproduce herein below so far as it is necessary for the purpose of this application. "353. Judgment-The judgment in every trial in any criminal court of original jurisdiction shall be pronounced in open court by the presiding officer immediately after the termination of the trial or at some subsequent time of which notice shall be given to the parties or their pleaders". (8) Mr. Safiulla argued that trial must be held to have been concluded when recording of evidence of both the parties was completed, and arguments were heard. (8) Mr. Safiulla argued that trial must be held to have been concluded when recording of evidence of both the parties was completed, and arguments were heard. Recording of evidence of the defence witnesses followed after the examination of the accused under Section 313 of the Cr.P.C. So in terms of Section 353 of the Cr.P.C. the court has to pronounce a judgment after the termination of the trial, meaning thereby trial does not extend up to the stage of delivery of judgment. In support of the submission, Mr. Safiulla referred to a decision of Kerala High Court in K. Sajeendran and Anr. v. The Secretary Thalakulathur Gram Panchayat wherein a learned Judge of Kerala High Court by referring to the decision of the Supreme Court in Rajendra Prasad v. Narcotic Cell; Mohanlal Shamji Sone v. Union of India and Jamatraj v. State of Maharashtra held that power under Section 311 Cr.P.C. does not extend to a case when the case is posted for judgment on the ground that when the case is posted for judgment trial had stood terminated. The learned Judge distinguished all the three decisions referred to above rendered by the Supreme Court from the facts of the said Kerala case and held as above. Mr. Safiulla with the aid of the said decision submitted that the learned trial court was not legally justified in invoking jurisdiction under Section 311 of Cr.P.C. to the aid of the complainant only for the purpose of filling up of the lacunae. (9) Mr. Ayan Bhattacharya, learned advocate appearing for the O.P. complainant referred to the decision of the Supreme Court in Jantraj Kewalji Govani v. State of Maharashtra (supra) the decision referred to in the Kerala case, in support of the submission that provision of Section 540 (old) gives power to the court to summoning material witness or to examine a person present in court or to recall a witness already examined at any stage of the proceeding. Section 540 (old code) is intended to be wide as the repeated use of the word any throughout its length clearly indicates and it confers a wide discretion on the court an act as the exigencies of justice is required. (10) Now so far as three aforesaid decisions of the Supreme Court is concerned they do not set out any limitation as to up to which stage this power can be exercised. (10) Now so far as three aforesaid decisions of the Supreme Court is concerned they do not set out any limitation as to up to which stage this power can be exercised. The language of Section 311 of the CrPC is that the power is exercisable at any stage of any enquiry or trial. The question necessarily arises as to when trial ends. The concept of trial as is indicated in Section 353 of the CrPC appears to be that it ends only when a case is posted for judgment and so far as the Kerala decision is concerned, the power under Section 311, CrPC is non-exercisable when the Judge fixes a date for writing judgment. (11) Now what is meant by trial has not been defined in the Code of Criminal Procedure in 1973, and the exact question came up for consideration before a division bench of Allahabad High Court in Ranjeet v. The State. In this decision it was argued that when the case is posted for judgment Section 540 of the Cr.P.C. (old) was no longer available. Happily for us, the concept of what is called trial was decided by the Calcutta High Court and the Division Bench of Allahabad High Court approved of the decision of the Division Bench of Calcutta case in Jeevan Molla v. Emperor where this court held that the word trial has no fix or universal meaning and must be construed with regard to the particular context in which it is used and with regard to the scheme and purpose of the measure concerned. Relying on this decision of the Calcutta case, the division bench of the Allahabad held that for the purpose of Section 540 CrPC no help can be derived legally from Section 353 of the Cr.P.C. The Division Bench very aptly observed as follows: "After hearing arguments the Magistrate or Judge sits down to prepare his judgment and for this studies the police case diary, he finds that it contains some essential evidence which the prosecution have withheld, the defence have naturally no means of knowing what the dairy contains. Shall we than hold that the Magistrate or Judge is debarred from calling that essential evidence? If he is so debarred, a just decision of the case would manifestly not be possible. But keeping in mind the object of Section 540 we must hold that he is not debarred. Shall we than hold that the Magistrate or Judge is debarred from calling that essential evidence? If he is so debarred, a just decision of the case would manifestly not be possible. But keeping in mind the object of Section 540 we must hold that he is not debarred. It follows that he can take evidence under Section 540 up to the time of delivery of judgment". (12) Now this Allahabad decision has been approved by the Supreme Court in Jametraj Kewalji Govani. The Supreme Court also approved of similar other decisions of different High Courts including one of Madras and Orissa. In Jamatraj the Honble Supreme Court did not put any limitation to the exercise of the power observing that it is exercisable as the exigencies of justice would require. (13) Mr. Bhattacharya submits that in the Criminal Procedure Code 1898 also there was no definition of trial but in the Criminal Procedure Code previous thereto trial was defined. I have no occasion at the moment to go through the Criminal Procedure Code that preceded 1898, but it is rightly submitted that when Criminal Procedure Code is a consolidating statute presumption is that the Parliament does not intend to alter the existing law which applies with equal measure as it applied when it was in force. (14) My attention has been drawn to observation of Lord Evershed M.R. as is quoted in Maxwells Interpretation of Statute 12th Edition, "That Parliament must be taken to have been aware of the decisions of the courts in the mean time" (15) Be that as it may, I have been taken to certain other subsequent decisions of the Supreme Court and they can be referred to here. In P. Chhganlal Daga v. N. Sanjay Show the decision was similar. It was a case where the learned Magistrate, fixed the case for delivery of judgment and before the judgment was pronounced an application was taken out for exercise of the power under Section 311 of the CrPC. The Supreme Court again referred to Rajendra Prasad (supra) and Mohan Lal Shamji (supra) to hold that power can be exercised and the High Court was in error on the assumption that the production of the document at that belated stage was only to fill up the lacunae. The Supreme Court again referred to Rajendra Prasad (supra) and Mohan Lal Shamji (supra) to hold that power can be exercised and the High Court was in error on the assumption that the production of the document at that belated stage was only to fill up the lacunae. Yet in a more recent decision in U. T. of Dadra Nagar Haveli v. Fatehsinh Mohansinh Cahuhan the position was exactly similar. Here also argument was that the exercise of the power would be to fill up the lacunae and the plea was turned down. Their Lordships held at paragraph 15 which I reproduce below: "A conspectus of authorities referred to above would show that the principle is well settled that the exercise of power under Section 311 CrPC should be resorted to only with the object of finding out the truth or obtaining proper proof of such facts which lead to a just and correct decision of the case, this being the primary duty of a criminal court. Calling a witness or re-examination a witness already examined for the purpose of finding out the truth in order to enable the court to arrive at a just decision of the case cannot be dubbed as "filling in a lacuna in the prosecution case" unless the facts and circumstances of the case make it apparent that the exercise of power by the court would result in causing serious prejudice to the accused resulting in miscarriage of justice". (16) Thus, for the purpose of Section 311 CrPC trial continues till judgment is pronounced, and the said section is not controlled by Section 353 CrPC. (17) A preliminary point was taken by Mr. Bhattacharya with reference to Sethuraman v. Raja Manickam that an order under Section 311 CrPC is an interlocutory order and are not revisable under Section 397(2) CrPC, I reproduce the last paragraph of the order of the Supreme Court which is as follows: "Secondly, what was not realised was that the orders passed by the trial court refusing to call the documents and rejecting the application under Section 311 CrPC were interlocutory orders and as such, the revision against those orders was clearly, barred under Section 397(2) CrPC. The trial court, in its common order, had clearly mentioned that the cheque was admittedly signed by the respondent/ accused and the only defence that was raised, was that his signed cheques were lost and that the appellant complainant had falsely used one such cheque. The trial court also recorded a finding that the documents were not necessary. This order did not in any manner, decide anything finally. Therefore, both the orders i.e. one on the application under Section 91 CrPC for production of documents and other on the application under Section 311 CrPC for recalling the witness, were the orders of interlocutory nature, in which case, under Section 397 Cr.P.C. revision was clearly not maintainable. Under such circumstances, the learned Judge could not have interfered in his revisional jurisdiction. The impugned judgment is clearly incorrect in law and would have to be set aside. It is accordingly set aside. The appeals are allowed." (18) However, in view of the deliberation made in the preceding paragraph this preliminary point is not too much of significance. Still then the decision is not out of context because it refers to a similar situation where power was exercised under Section 311Cr.P.C. (19) With respect to the question as to whether Subhra Kanti Ganguly is important witness for just decision of the case, the learned trial court observed in the order impugned which is no doubt a speaking order to the effect that according to him for a just decision of the case examination of the said person is necessary. Sitting in this inherent jurisdiction and/or revisional jurisdiction it is not possible for this court to over turn the finding. In the circumstances, I am not inclined to go into the f-actualities of the case. (20) The result is that the two applications are not maintainable. Applications are dismissed. The order of the learned trial court is affirmed. Urgent Xerox certified copy of the order shall be given to the parties, if applied for, as expeditiously as possible. Revision dismissed.