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2009 DIGILAW 735 (JHR)

Amit Raj Vardhan v. State of Jharkhand

2009-05-08

AMARESHWAR SAHAY

body2009
ORDER Heard the parties. 2. By the impugned order dated 17/06/2008, the trial court has rejected the petition under Section 311 Cr.P.C. filed by the prosecution for examination of two charge sheeted eye-witnesses namely, Shweta Verma and Rohit Yashvardhan mainly on three grounds:- (i) As per the High Court’s direction the trial has to be concluded within a prescribed period of time but due to latches on the part of the prosecution the disposal of the trial is being delayed. (ii) Earlier also the prosecution was allowed to examine the witnesses namely Shweta Verma and Shilpi Verma but only the evidence of Shilpi Verma was recorded and Sweta Verma did not appear to depose. (iii) And now when the final argument of the case was fixed on 17/06/2008 with the consent of both the parties then on that day a petition under Section 311 Cr. P.C. was filed for examination of two witnesses therefore, the balance of interest of justice leans to infer that the case must be concluded without allowing the prosecution any further time for recording evidence of any prosecution witness. 3. In order to appreciate the real issue, the background of the case is required to be noticed. A practicing Advocate of Siwan (Bihar) namely Raghuveer Sharan Verma and his wife Madhu Verma were allegedly brutally murdered by the accused persons because of the fact the deceased Raghuveer Sharan Verma, Advocate, refused to compromise the case in which the accused persons were being prosecuted for committing the murder of his son Sumeet Harshvardhan. The F.I.R. in this case was registered, the case was investigated and the charge sheet was submitted against the accused persons and the trial started against accused persons at the Sessions Court at Siwan in the State of Bihar. On an application made by the petitioner, the Supreme Court, transferred the trial by order dated 11/02/2002 from Bihar to Jharkhand since the family members and other witnesses in the said Sessions Trial were being threatened by the accused persons consistently with dire consequences if they deposed in the case against the accused persons. The Sessions trial was transferred to the Court of Sri B.M.Singh on 06/04/2002. Charges were framed on 23/07/2004 and the evidence in the case was started on 04/12/2006. The Sessions trial was transferred to the Court of Sri B.M.Singh on 06/04/2002. Charges were framed on 23/07/2004 and the evidence in the case was started on 04/12/2006. However, the trial remained pending on account of the transfer of the Presiding Officer and also on account of the abscondence of the accused Md. Guddu. Subsequently, the trial of Md. Guddu was separated on 14/09/2007 and the case was fixed for further evidence on 21/09/2007. The trial could not proceed further since the Presiding officer was again transferred and, ultimately, the case was transferred to the Court of Sri B.Jha Praveer, A.J.C., Ranchi, who received the record on 12/12/2007 and posted the case for evidence on the very next day, i.e. on 13/12/2007 and passed an order that if on 07/01/2008 no PW would appear the case of the prosecution would be closed. However, on the next dates, i.e. 07/01/2008 and 08/01/2008, no witnesses could be examined since no witness was present but on 09/01/2008, the Investigating Officer of the case was examined and then on 10/01/2008 the evidence was closed and the accused persons were examined under Section 313 Cr.P.C. by fixing 21/01/2008 for final argument. On the said date, i.e. 21/01/2008, a petition under Section 311 Cr.P.C. was filed by the prosecution for examination of two charge sheeted eye-witnesses namely, Shilpi Verma and Shweta Verma, which was allowed by the Court. Shilpi Verma was examined and cross-examined and, thereafter, she was discharged on 15/03/2008. Though another witness Shweta Verma had also filed her attendance on 14/03/2008 but her evidence could not be recorded since cross-examination of the other witness Shilpi Verma could not be completed. 4. According to the petitioner, since Shweta Verma and her younger brother Rohit Yashvardhan, both charge sheeted eyewitnesses were getting serious threats at the hands of the accused persons and, therefore, the P.P. Incharge wrote to D.G.P., Bihar to provide adequate security to them so that they can give their evidence at Ranchi. The petitioner alleges that since adequate security was not provided to the witnesses and, therefore, they were not able to come to Ranchi to depose. 5. The petitioner alleges that since adequate security was not provided to the witnesses and, therefore, they were not able to come to Ranchi to depose. 5. In the aforesaid background of the case, it is to be seen as to whether the trial court is justified in rejecting the petition under Section 311 Cr.P.C., filed by the prosecution on the grounds mentioned in the impugned order, which have already been noticed above? The learned trial court, while rejecting the prayer of the prosecution, has given much stress that the High Court has given direction to conclude the trial within a time frame and further the interest of justice demanded that the prayer of the prosecution be not allowed since the trial got delayed due to the latches on the part of the prosecution. 6. Admittedly, two witnesses namely Shweta Verma and Rohit Yashvardhan are the charge sheeted eye-witnesses to the occurrence and, therefore, they are material witnesses and they were receiving threats not to depose in the case. 7. Section 311 Cr.P.C. provides that any Court at any stage of enquiry or trial may 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 if his evidence appears to it to be essential to the just decision of the case (emphasis is mine). 8. Section 311 Cr.P.C. consists of two parts. The first part speaks about the discretionary powers enabling a Court to exercise the power at any stage to summon any witness or to examine any witness present in Court or to recall and re-examine any witness. Whereas the second part is mandatory in nature which speaks that if the new evidence appears to be essential to the just decision of the case, the Court is bound to take any of the above steps. The object of the section is to arrive at the truth irrespective of the fact that the prosecution or the defence has failed to produce some evidence which is necessary for the just decision of a case. 9. If the Court finds that the new evidence is to be admitted for the just decision of the case, then in that case, such power can be exercised at any stage even after closure of the prosecution and defence. 9. If the Court finds that the new evidence is to be admitted for the just decision of the case, then in that case, such power can be exercised at any stage even after closure of the prosecution and defence. This power can be exercised so long as the judgment has not been pronounced by the Court. 10. The main and foremost question to be considered by the trial court is as to whether the examination of the witnesses for whom prayer has been made by the prosecution for their examination is essential to the just decision of the case or not? 11. The function of the Court is to render just decision. The criminal court is to administer criminal justice and not to count errors committed by the parties. If the examination of any witness is essential to the just decision of the case then the trial court must exercise its power under Section 311 Cr.P.C. and allow the prosecution to examine the witnesses. 12. In the present case, I fine that the learned trial court has not at all applied its mind as to whether the examination of those two charge sheeted eye-witnesses Shweta Verma and Rohit Yashvardhan was essential for the just decision of the case or not? The trial court has rejected the prayer on the ground that the balance of interest of justice leans to infer that now this case must be concluded without allowing the prosecution any further time for recording evidence of any of the prosecution witnesses on attendance. This observation of the trial court come since earlier there was direction of the High Court to conclude the trial expeditiously. In my view, the approach of the learned trial court is wholly erroneous. Admittedly, the aforesaid two witnesses Shweta Verma and Rohit Yashvardhan were physically present in Court on the date the application under Section 311 Cr.P.C. was filed by the prosecution for their examination. Therefore, it was not that the prosecution was praying for any adjournment for examination of those witnesses. The trial court could have examined both the witnesses on that day itself. 13. Therefore, it was not that the prosecution was praying for any adjournment for examination of those witnesses. The trial court could have examined both the witnesses on that day itself. 13. The Constitution Bench of the Supreme Court in the case of “P.Ram Chandra Rao-versus-State of Karnataka, reported in 2002 (2) JCR 272 SC”, held that no direction to conclude the criminal trial or a criminal proceeding or to mandatorily closure of the case be given to the trial court. It is neither advisable, nor feasible, nor judicially permissible to draw or prescribe an outer time limit for conclusion of all criminal proceedings. 14. In the case of “Zahira Habibullah Sheikh (5) and Anr.- versus-State of Gujarat & Others, reported in (2006) 3 SCC 374 ”, in Para-27, the Supreme Court has held as follows:- “The object underlying Section 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 the 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. The section is a general section which applies to all proceedings, enquiries and trials under the Code and empowers the Magistrate to issue summons to any witness at any stage of such proceedings, trial or enquiry. In Section 311 the significant expression that occurs is “at any stage of any inquiry or trial or other proceeding under this Code”. It is, however, to be borne in mind that whereas the section confers a very wide power on the court on summoning witnesses, the discretion conferred is to be exercised judiciously, as the wider the power the greater is the necessity for application of judicial mind.” 15. Whether the new evidence is essential or not must of course depend on the facts of the each case and has to be determined by the trial court itself on the facts appearing in a particular case. 16. Whether the new evidence is essential or not must of course depend on the facts of the each case and has to be determined by the trial court itself on the facts appearing in a particular case. 16. In the present case, as already held above, the trial court has totally failed to apply his judicial mind on this aspect of the matter. 17. Admittedly, Shweta Verma and Rohit Yashvardhan were the charge sheeted eye-witnesses and, therefore, the trial court has to decide after applying his judicial mind as to whether their evidence is essential for the just decision of the case or not? 18. In view of the discussions and findings above, this application is allowed. The impugned order dated 17/06/2008 is hereby set aside and the matter is remitted back to the trial court to pass a fresh order on the petition of the prosecution under Section 311 Cr.P.C. in accordance with law within a period of two weeks from the date of receipt/production of a copy of this order and, thereafter, shall proceed to conclude the trial as expeditiously as possible.