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Madhya Pradesh High Court · body

2010 DIGILAW 1224 (MP)

P. L. Usrete v. State of M. P.

2010-12-10

R.C.MISHRA, VIMLA JAIN

body2010
ORDER R.C. Mishra, J. 1. Arguments heard. 2. This is a petition, under Section 482 of the Code of Criminal Procedure (for short "the Code"). The Petitioner is aggrieved by the order-dated 22/9/2010 passed by Special Judge (under the Prevention of Corruption Act, 1988), Sagar in Special Case No. 3/1998 whereby, in exercise of the powers conferred, under Section 311 of the Code, direction was given to summon the following as Court witnesses- (i) Swadesh Kumar Khare (ii) B.K. Gupta (iii) OmkareshwarTiwari (iv) R.R. Singh (v) KailashSurya (vi) P.K. Guru (vii) M.S. Parmar (though not named due to inadvertence in the operative part of the order) 3. Learned Counsel has stated at bar that till date, none of these witnesses has been examined/re-examined. 4. Background facts may be summed as under: - The Petitioner is one amongst the public servants facing trial upon the charges of the offences punishable under Sections 467 read with 34, 468 read with 34 of the Indian Penal Code, 471 and 120-B of the Indian Penal Code as well as under Section 13 (1)(d) read with Section 13(2) of the Act. Although, the above-named persons were cited as witnesses in the charge-sheet yet, the prosecution did not prefer to examine them. The prosecution evidence was declared closed on 19/5/2010. Thereafter, on 11/6/2010, the Petitioner and the co-accused were examined under Section 313 of the Code. The defence then availed of the opportunity to adduce the evidence. Ultimately, final arguments were heard on 9/9/2010 and the case was fixed for delivery on judgment on 22/9/2010. However, instead of pronouncing the judgment, learned trial Judge, while observing that evidence of the aforesaid witnesses was essential to the just decision of the case, proceeded to pass the order in question. 5. Learned Counsel for the Petitioner has contended that the trial Judge has committed a serious illegality in calling the witnesses after a virtual conclusion of the trial. According to him, amongst the witnesses sought to be called - (i) B.K. Gupta, Omkareshwar Tiwari and R.R. Singh had already been given up by the prosecution on 12/7/2000, 8/9/2000 and 26/3/2010 respectively. (ii) Name of S.K. Khare did not figure in the revised trial program submitted by the prosecution on 23/9/2009. 6. According to him, amongst the witnesses sought to be called - (i) B.K. Gupta, Omkareshwar Tiwari and R.R. Singh had already been given up by the prosecution on 12/7/2000, 8/9/2000 and 26/3/2010 respectively. (ii) Name of S.K. Khare did not figure in the revised trial program submitted by the prosecution on 23/9/2009. 6. He is further of the view that the order has resulted in great prejudice to the Petitioner as well as the co-accused, who have been undergoing the ordeal of trial for the last 12 years particularly when the witnesses were given up by the prosecution after a conscious and careful assessment of total effect of their evidence on the merits of the case. Attention has also been invited to the fact that the impugned order contains reasons only for recalling P.K. Guru, the Investigating Officer. 7. In reply, learned Special Public Prosecutor has submitted that recording of reasons was not at all necessary for summoning the witnesses in exercise of the power conferred under Section 311 of the Code. To buttress the contention, he has placed reliance on the following observations made by the Apex Court in Captain Amarinder Singh v. Parkash Singh Badal (2009) 6 SCC 260 : Ultimately, it is upon the Presiding Officer/Special Judge and not this Court to evaluate those witnesses and arrive at a conclusion one way or other depending on the charges leveled against the accused. It would not be fair on the part of this Court either to assess and arrive at an opinion about the same. Even after closing of the prosecution side by the Public Prosecutor, if the court wants to examine some more witnesses from the list furnished by the prosecution, it is for the Presiding Judge to take a decision in accordance with the law and issue appropriate direction 8. However, the facts of the instant case are distinguishable, as prosecution has already expressed its intention not to examine S.K. Khare, M.S. Parmar, B.K. Gupta, Omkareshwar Tiwari, R.R. Singh and Kailash Surya. 9. However, the facts of the instant case are distinguishable, as prosecution has already expressed its intention not to examine S.K. Khare, M.S. Parmar, B.K. Gupta, Omkareshwar Tiwari, R.R. Singh and Kailash Surya. 9. Still, making extensive reference to the relevant guidelines laid down by the Supreme Court in Zahira Habibulla H. Sheikh v. State of Gujarat (2004) 4 SCC 158 , learned Special Public Prosecutor has further contended that it was also the duty of the Court to ensure that there might not be miscarriage of justice due to non-production of the material evidence by the prosecutor in-charge of the case. 10. In response, Learned Counsel has submitted that the prosecution agency should not be permitted to take contradictory or inconsistent stand. 11. As explained in Zahira's case (supra), Section 311 of the Code consists of two parts. The first part is directory whereas the second one is mandatory. The order under challenge appears to have been passed under the second part. However, a bare perusal of the order would reveal that it merely cites the section and does not indicate the reasons for calling S.K. Khare, M.S. Parmar, B.K. Gupta, Omkareshwar Tiwari, R.R. Singh and Kailash Surya, who were expressly as well as impliedly given up by the prosecution. 12. It is true that the criminal Court has unrestricted power to recall or re-examine any witness at any stage for just decision of the case (Mohanlal Shamji Soni v. Union of India AIR 1991 SC 1346 referred to) but jurisdiction must obviously be dictated by exigency of the situation and must be guided by fair play and good sense. As emphasized in Zahira's case, the courts have to take a participatory role in a trial and second part of Section 311 of the Code compels the court to examine a witness if his evidence appears to be essential to the just decision of the court. As emphasized in Zahira's case, the courts have to take a participatory role in a trial and second part of Section 311 of the Code compels the court to examine a witness if his evidence appears to be essential to the just decision of the court. Still, the following note of caution uttered by Hidayatullah, J. (as he then was), speaking for the Bench in Jamatraj Kewalji Govani v. State of Maharashtra AIR 1968 SC 178 , wherein scope and ambit of Section 540 of the old Code that corresponds to Section 311 of the Code was explained,: ...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. 13. Answering the question as to whether the provision gives the court carte blanche drawing no underlying principle in the exercise of the extraordinary power and whether the said section is unguided, uncontrolled and uncanalised ? The Apex Court in Mohanlal's case (above) made the following illuminating observations - Though Section 540 (Section 311 of the new Code) is, in the widest possible terms and calls for no limitation, either with regard to the stage at which the powers of the court should be exercised, or with regard to the manner in which they should be exercised, that power is circumscribed by the principle that underlines Section 540, namely, evidence to be obtained should appear to the court essential to a just decision of the case by getting at the truth by all lawful means. Therefore, it should be borne in mind that the aid of the section should be invoked only with the object of discovering relevant facts or obtaining proper proof of such facts for a just decision of the case and it must be used judicially and not capriciously or arbitrarily because any improper or capricious exercise of the power may lead to undesirable results. Further it is incumbent that due care should be taken by the court while exercising the power under this section and it should not be used for filling up the lacuna left by the prosecution or by the defence or to the disadvantage of the accused or to cause serious prejudice to the defence of the accused or to give an unfair advantage to the rival side and further the additional evidence should not be received as a disguise for a retrial or to change the nature of the case against either of the parties. (Emphasis supplied) 14. Accordingly, learned trial Judge ought to have assigned cogent reasons so as to justify his observation that evidence of each one of the above-named witnesses who were given up by the prosecution was material to the just decision of the case by highlighting the respective role. 15. Applying the guiding principle to the factual scenario as highlighted above, we are of the opinion that the order requires interference under the inherent powers. 16. The petition stands allowed in part and the impugned order, so far as it relates to S.K. Khare, M.S. Parmar, B.K. Gupta, Omkareshwar Tiwari, R.R. Singh and Kailash Surya is hereby set aside with the observation that learned trial Judge shall be at liberty to call these witnesses only after passing a speaking order reflecting as to how the evidence of each one of them would be essential for a just decision of the case.