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Gauhati High Court · body

2009 DIGILAW 833 (GAU)

Md. Bilal Ahmed Barlaskar v. State of Assam

2009-11-26

H.N.SARMA

body2009
JUDGMENT H.N. Sarma, J. 1. The subject-matter of challenge in this revision petition is the order dated 22.10.2009 passed by the learned Sessions Judge, Hailakandi in Session Case No. 13 of 2007 under Section 376, IPC thereby rejecting the prayer of the accused petitioner for re-examination of the few witnesses. 2. I have heard Mr. A.M. Barbhuya, learned Counsel for the petitioner and Mr. G. Gogoi, learned Addl. P.P., Assam appearing for the State. 3. The petitioner is an accused in Sessions Case No. 13 of 2007 under Section 366A/376, IPC. The trial of the case started and in due course of trial the prosecution examined six witnesses in total including the I.O. and the victim girl. Thereafter the accused petitioner was examined under Section313, Cr. PC putting before him the circumstances that appeared against him as revealed by the prosecution witnesses. The statement was recorded on 17.3.2009; thereafter the petitioner having declined to adduce any defence witness the case was posted for argument. Although four dates were fixed for argument hearing was adjourned on the prayer of the petitioner. At that stage, on 7.9.2009 the petitioner filed an application under Section 311, Cr. PC praying for summoning the two Doctors for examination as witnesses and for recalling P.Ws. 1 and 5 for further cross-examination. The learned trial court after hearing both sides, rejected the said prayer of the petitioner vide impugned order dated 22.10.2009 which is the subject-matter of challenge in this revision petition. 4. Mr. Borbhuya, learned Counsel for the petitioner submits that the power under Section 311 of the Cr. PC is very much wide and such power of recalling of witnesses can be exercised by the court at any time learned Counsel further submits that the finding of the learned Sessions Judge that the application has been filed to fill up the lacunae and if allowed would cause prejudice to the prosecution and is beyond the scope of consideration under Section 311, Cr. PC is untenable in law and accordingly the impugned order is illegal, unjust and improper. Learned Counsel further submits that in the event the impugned order is allowed to stand it would cause prejudice to the petitioner. Per contra, Mr. Gogoi, learned Addl. P.P. submits that the petitioner has not filed the application with due diligence. PC is untenable in law and accordingly the impugned order is illegal, unjust and improper. Learned Counsel further submits that in the event the impugned order is allowed to stand it would cause prejudice to the petitioner. Per contra, Mr. Gogoi, learned Addl. P.P. submits that the petitioner has not filed the application with due diligence. The petitioner waited up to the stage of argument and after taking, adjournment on several occasions, he ultimately, filed an application under Section 311, Cr. PC only to delay the proceeding. It is further contended that no just and sufficient reason having been shown for recalling and/or re-examination of the witnesses the learned trial judge rightly rejected the prayer which requires no interference in exercise of the revisional jurisdiction of this Court. 5. I have considered the rival submission made by both the learned Counsel. The application filed by the petitioner before the trial judge contains two prayers, namely for summoning Dr. M. Kalita and another Doctor Mr. M.R. Laskar as witnesses of the case and the other one for recalling PWs 1 and 5 for further cross-examination by the accused petitioner. 6. Section 311 of the Cr. PC empowers the court to summon material witnesses or examine the person present in the court. The court may, at any stage of any inquiry, trial or other proceeding, 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. The aforesaid provision further empowers the court to issue summon and examine or recall and re-examine any such person if his evidence appears to be essential for the just decision of the case. Section 311 reflects that it is the discretion of the court to summon any person as a witness or examine any person in attendance or recall and reexamine any person already examined but the subsequent part of Section is not discretionary. The court is mandatorily required to summon and re-call and re-examine any such person if his evidence appears to the court to be essential to the just decision of the case. Such power can be exercised at any stage of the enquiry or trial. 7. The provision of Section 311 came up for interpretation by the Apex Court in several cases. In the case of Mohanlal Shamjisoni vs. Union of India, 1991 Supp. Such power can be exercised at any stage of the enquiry or trial. 7. The provision of Section 311 came up for interpretation by the Apex Court in several cases. In the case of Mohanlal Shamjisoni vs. Union of India, 1991 Supp. (1) SCC, interpreting Section 540 of Criminal Procedure Code 1898 which is almost identical to Section 311, Cr. PC, the Apex Court held that 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 provision of the Code. The second part of the section docs 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. At paras 16 and 17, their lordship held as follows:- 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 to 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 principle underlying this provision is to discover or to obtain proper proof of relevant facts in order to meet the requirements of justice. In this connection we would like to quote with approval the following view of Lumpking, J. in Epps vs. S., which reads, thus: It is not only the right but the duty of the presiding judge to call the attention of the witness to it, whether it makes for or against the prosecution, his aim being neither to punish the innocent nor screen the guilty, but to administer the law correctly. Counsel seek only for their client's success; but the judge must watch that justice triumphs. 17. The law is clearly expounded in the case of Jamatraj Kewalji Govani (referred to above) wherein Hidayatullah, J. as he then was, while speaking for the bench about the unfettered discretionary power of the court as envisaged under Section 540 of the Code has stated, thus: (SCR. pp. 422-23) It is difficulty to limit the power under out Code to cases which involve something arising ex-improviso which no human ingenuity could foresee, in the course of the defence. Our Code does not make this a condition of the exercise of the power and it is not right to embark on judicial legislation. Cases that go far are of course not quite right. Indeed they could be decided on fact because it can always be seen whether the new matter is strictly necessary for a just decision and not intended to give an unfair advantage to one of the rival sides. It would appear that in our criminal jurisdiction, statutory law confers a power in absolute terms to be exercised at any stage of 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. If the court has acted without the requirements of a just decision, the action is open to criticism but if the court's action is supportable as being in aid of a just decision the action cannot be regarded as exceeding the jurisdiction. 8. In the case of Rameshwar Dayal vs. State of U.R. (1978) 2 SCC 518 , the Apex Court reminded about the careful exercise of this power by the court. In the said case the Apex Court held that though Section 540, Cr. PC (311, Cr. 8. In the case of Rameshwar Dayal vs. State of U.R. (1978) 2 SCC 518 , the Apex Court reminded about the careful exercise of this power by the court. In the said case the Apex Court held that though Section 540, Cr. PC (311, Cr. PC of the new Code), the High court has ample power to examine any witness it likes for the just decision of the case but this power has to be exercised sparingly and only when the ends of justice so demand. The higher the power the more careful should be in its exercise. It is further held that the words just decision of the case would become meaningless and without any significance if a decision is to be arrived at without a sense of justice and fair play Same view was also expressed by the Apex Court in the case of State of W.B. vs. Tulsidas Mundhra (1964) 1 Crl. LJ 443. 9. In the case of Rejendra Prasad vs. Narcotic Cell, (1999) 6 SCC 110 the Apex Court in the context of raising objection by the other side in an application under Section 311relating to the filling of the lacuna in the prosecution case, the Apex Court observed that a lacuna in the 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 err 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 conduct of a case cannot be understood as a 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 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. 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 any declare who among the parties performed better. 10. Again in the case of Mir Mohd. Omar and other vs. State of West Bengal, AIR 1989 SC 1785 , the Apex Court did not favour to recall a witness by the prosecution after examination of the accused under Section 313, Cr. PC. The Apex Court in Paragraph 15 has held as follows: 15. We equally see no justification for the High Court for giving liberty to the prosecution to file an application for re-examination of PW 34. In fact it will be seen from the operative portion of the impugned order the High Court proceeds on the assumption that PW 34 would be recalled be further examination. Here again it may be noted that the prosecution has closed the evidence. The accused have been examined under Section 313 of the Code. The prosecution did not at any stage move the trial Judge for recalling PW 34 for further examination. In these circumstances, the liberty reserved to the prosecution to recall PW 34 for re-examination is undoubtedly uncalled for. 11. The principle of law that emerges from different decisions of the Apex Court clearly go to show that the criminal court has got ample power to summon any person present as witness or re-call or re-examine any such person even if the evidence of both the sides is closed and the jurisdiction of the court is to be exercised as per exigency of the situation and fair play in action. 12. Now turning to the impugned order it is seen that the learned trial judge rejected the prayer of the petitioner also on the ground that the petition is filed at the belated stage and the ground stated in the petition is not found to be pressing and sound as it amount to fill up the lacuna and may cause prejudice to the prosecution. The aforesaid reason though not in consonance with the interpretation of the provision of Section 311 as indicated above but still then it is burden of the petitioner to show that the aforesaid four witnesses are required to be examined for the purpose of just decision of the case. 13. The petitioner prayed for summoning of two Doctors, namely, Mr. M. Kalita and M.R. Laskar as they were present in the medication examination of the victim lady. The medical examination report of the victim discloses that she was examined by Doctor Mrs. R. Begum in the presence of the M. Kalita and M.R. Laskar. Mrs. R. Begum was duly examined as PW4, in her deposition she stated, inter alia, that on 20.9.2006 she was working as Sr. Medical and Health Officer at Hailakandi Civil Hospital and on that date she examined the victim on the requisition of the police. PWs were also duly cross-examined on behalf of the petitioner. No justification has been shown for issuance of notice to the said two Doctors, namely, Mr. M. Kalita and Mr. M.R. Laskar as to why that they are required to be examined by the prosecution although none of them took any part in the examination of the victim. Similarly, the petitioner in his application stated that during the cross-examination of the PW 1 inadvertently no cross-examination was done in respect of the age and date of birth and about her shifting from one place to another and how she was brought to the police station. From the deposition of the victim it is found that she was married and was running in pregnancy. She was duly cross-examined on all material points. Learned Counsel strenuously urged that the age and date of birth of the victim was inadvertently not put up but such question can hardly be said to be material to be elucidated from the victim girl, As regards the date of birth of the PW 1 instead of her evidence, the evidence of guardian and others would be of much relevance. That apart, PW 1 was medically examined by PW 4. The findings of the Doctor are that her age was below 18 years. No positive cross-examination in this respect was made to the Doctor by the petitioner. 14. That apart, PW 1 was medically examined by PW 4. The findings of the Doctor are that her age was below 18 years. No positive cross-examination in this respect was made to the Doctor by the petitioner. 14. Lastly, as regards PW 5, it is submitted that the I.O. did not visit the house of PW 5 for recording the statement and during his cross-examination he was inadvertently left to be asked as to when and at which place I.O. recorded the statement. Such question is neither relevant nor necessary in the absence of denial about the examination of the PW 5 by the I.O. during investigation, it is admitted by the defence that the PW 5 was examined by the I.O. and it is not material at which place I.O. has examined the witnesses, for arriving at a just decision of the case. Taking note of the stand of the petitioner in support of the application filed under Section 311, Cr. PC, praying for recalling the witnesses, on facts the petitioner could not satisfy that such witnesses are essential for just decision of the case. Consequently, second part of Section 311, Cr. PC mandatorily requiring recalling the witnesses is not attracted rather it attracts discretionary part as contained in the first portion of the Section 311, Cr. PC. 15. Viewing the matter from every possible angle about the power of the court under Section 311, Cr. PC and in the light of the judicial interpretation rendered above to deal with an application under Section 311, Cr. PC in my considered opinion, the petitioner has failed to make out a case for summoning and or recalling the witnesses as prayed for. Accordingly, without approving the grounds reflected by the learned trial judge in the impugned judgment, I do not find any reason to interfere with the decision arrived at by the learned trial judge and the revision petition stands dismissed. Petition dismissed.