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2010 DIGILAW 258 (GAU)

Ajit Kumar Nath v. State of Tripura

2010-04-12

UTPALENDU BIKAS SAHA

body2010
ORDER U.B. Saha, J. 1. The instant criminal revision petition is filed by the accused-petitioners who are now facing trial before the Court of learned Judicial Magistrate 1st Class, Amarpur, South Tripura (hereinafter referred to as 'the trial Court') for an alleged offence under Section 498A of the Indian Penal Code (for short 'the Code'). They are also on bail pursuant to the order of the learned trial Court. 2. While the trial was almost going to be completed after examination of the prosecution witnesses, the learned Assistant Public Prosecutor filed an application on 28-10-2009 under Section311 of the Code of Criminal Procedure (for short 'Cr.P.C.') for examining one Sri Tulsi Chakraborty of Gobinda Tilla and another Smt. Padma Debnath of Rangkang, both of P.S. Birganj as prosecution witnesses as their evidences are necessary for ends of justice. The said prayer for examining the prosecution witnesses was objected to by the present accused-petitioners and on 10-11-2009 they filed two applications under Section 311, Cr.P.C. for recalling Smt. Daltina Debnath, Shri Parimal Debnath, Shri Manindra Karmakar and Smt. Sandhya Debnath, P.Ws. 1, 2, 3 and 4 respectively for further examination as due to bona fide mistake and oversight of their advocate at the time of examination of those witnesses certain questions, particularly the questions relating to their previous statement made before the I.O. of the case, were not asked to them. All the applications filed by the learned Assistant Public Prosecutor and the accused-petitioners under Section 311, Cr.P.C. were taken up by the learned trial Court on 10-11-2009 for final disposal and after hearing the learned Counsel for the parties, the learned trial Court partly allowed the prayer of the prosecution for examining Smt. Padma Debnath as a prosecution witnesses and rejected the prayer for examining Shri Tulsi Chakraborty. The learned trial Court also rejected the prayer of the accused-petitioners for recalling the aforesaid P.Ws. 1 to 4 for their further examination observing, inter alia, "Section 311 of Cr.P.C. simply talks about (i) to summons any person as a witness, (ii) to examine any person who is in attendance though not summoned, and (iii) to recall and re-examine any person already examined. 1 to 4 for their further examination observing, inter alia, "Section 311 of Cr.P.C. simply talks about (i) to summons any person as a witness, (ii) to examine any person who is in attendance though not summoned, and (iii) to recall and re-examine any person already examined. Hence in the present case as per my opinion unless the witnesses are re-examined or that new evidence are not revealed, the question of re-cross-examination does not arise at all." It is also observed in the said order, inter alia, "Moreover, it would be commission of a mistake too, on the part of the Court if the petitions of Ld. Counsel for the defence are allowed with no due authority of law." Being aggrieved by the aforesaid order of the learned trial Court dated 10-11-2009, the accused-petitioners have filed the present revision petition. 3. Heard Mr. S. Talapatra, learned senior Counsel, assisted by Mr. J. Majumder, learned Counsel for the petitioners and Mr. D. Sarkar, learned Public Prosecutor for the respondent State. 4. Issue Rule. Service of Rule is waived as the respondent has already entered appearance through the learned Public Prosecutor and the matter is taken up for final disposal as agreed to by the learned Counsel of both sides considering the relief sought for in the petition. 5. While criticizing the order of the learned trial Court as impugned, Mr. Talapatra, learned senior Counsel for the petitioners contended that the learned trial Court failed to understand the scheme of the provisions under Section 311, Cr.P.C. According to him, the said section has two parts, one is whereas the word 'used' in the first part is 'may' the word used in the second part is 'shall'. Therefore, the first part is a discretionary power of the Court which enables it 'at any stage of enquiry, trial or other proceedings' under the Code to act in one of the three ways, namely, (1) to summon any person as a witness, or (2) to examine any person in attendance, though not summoned as a witnesses, or (3) to recall and re-examine any person already examined and the second part is mandatory which imposes an obligation on the Court (a) to summon and examine, or (b) to recall and re-examine any such person if his evidence appears to be essential to the just decision of the case. He further contended that the first part as aforesaid being the discretionary power of the Court, it is the Court who will decide whether it will exercise the power vested in it under Section 311, Cr.P.C. or not, but so far the second part is concerned, it is mandatory in nature, which binds and compels the Court to summon and examine or to recall and reexamine any such person if his evidence appears to be essential to the just decision of the case. His further contention was that in the second part of the section, the words 'examine' and 're-examine' both are there. The word 'examine' is used by the legislature so that a witness who was not examined earlier by either of the parties, but his/her examination is necessary for the just decision of the case, can be examined and the word 're-examine' is used to provide opportunity either to prosecution or to the defence to re-examine the witnesses who were examined earlier. The word 're-examine' also includes further cross-examination. Therefore, the views of the learned trial Court, inter alia, unless the witnesses are re-examined or that new evidence are not revealed, the question of re-cross-examination does not arise is not correct. 6. In support of his aforesaid contention, Mr. Talapatra, learned senior Counsel referred to the cases of Rajendrasinh Jaidevsinh Dabhi v. State of Gujarat reported in 2005 Cri LJ 1690 and Rajesh K. Kondappa v. State of Karnataka reported in 2006 Cri LJ 1574. In both the cases, their Lordships of the respective High Courts allowed the petitions setting aside the orders impugned therein and the petitioners of those cases were permitted to cross-examine the respective P.Ws. He also referred to the case of Zahira Habibulla H. Sheikh v. State of Gujarat reported in AIR 2004 SC 3114 : 2004 Cri LJ 2050. 7. Mr. Sarkar, learned Public Prosecutor though initially supported the impugned order passed by the learned trial Court contending that the defence should not be allowed to fill up the lacuna, but on query of this Court, ultimately conceded to the prayer of the petitioners for setting aside the impugned order as the learned trial Court misunderstood the provision of Section 311, Cr.P.C. and permitting them to further cross-examine P.Ws. 1 to 4. 8. 1 to 4. 8. Having heard the learned Counsel appearing for the parties and on perusal of the impugned order as well as the applications under Section 311, Cr.P.C. filed by the accused-petitioners and going through the provision of Section 311, Cr.P.C. this Court is of the opinion that it would fail to discharge its duties if it does not quote the provision of the aforesaid section which is in question before this Court. Accordingly, the same is reproduced hereinunder: 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 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 if his evidence appears to it to be essential to the just decision of the case. 9. On perusal of the aforesaid provision of the Code, this Court is of the considered opinion that the submission of Mr. Talapatra, learned senior Counsel has some force which gets support from the decision of the Apex Court in Mohanlal Shamji Soni v. Union of India reported in 1991 Cri LJ 1521, wherein the Apex Court in paras 7 and 8 discussed about the scope of Section 540 of old Cr.P.C., which is similar to Section 311 of the new Code. In para 9 of the said law report, the Apex Court noted thus- 9. 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 provisions of the Code. The second part of the section 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. 10. The second part of the section 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. 10. In Zahira Habibulla H. Sheikh (supra), the Apex Court while considering the case of Mohan Lal Soni (supra) noted that the power of the Court under Section 165 of the Evidence Act is in a way complementary to power under Section 311 of the Code. The section consists of two parts i.e. (i) giving a discretion to the Court to examine the witness at any stage, and (ii) the mandatory portion which compels the Court to examine a witness if his evidence appears to be essential to the just decision of the Court. Though the discretion given to the Court is very wide, the very width requires a corresponding caution. The Apex Court also stated that the very width requires a corresponding caution that the discretionary powers should be invoked as the exigencies of justice require arid exercised judicially with circumspection and consistently with the provisions of the Code. The second part of the section does not allow any discretion but obligates and binds the Court to take necessary steps if the fresh evidence to be obtained is essential to the just decision of the case - 'essential', to an active and alert mind and not to one which is bent to abandon or abdicate. Object of the section is to enable the Court 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 a just and proper disposal of the case. The power is exercised and the evidence is examined neither to help the prosecution nor the defence, if the Court feels that there is necessity to act in terms of Section 311 but only to subserve the cause of justice and public interest. It is done with an object of getting the evidence in aid of a just decision and to upheld the truth. 11. It is done with an object of getting the evidence in aid of a just decision and to upheld the truth. 11. In Zahira Habibullah Sheikh v. State of Gujarat reported in AIR 2006 SC 1367 : 2006 Cri LJ 1694 while expressing the same view as stated supra, the Apex Court noted that 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 for the prosecution and not that of the accused.... 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. 12. In the instant case, the learned trial Court failed to exercise its judicial mind while rejecting the prayer of the accused-petitioners for further examination of prosecution witnesses by them. 13. In its subsequent decision in Rajendra Prasad v. Narcotic Cell through its Officer-in-Charge, Delhi AIR 1999 SC 2292 : 1999 Cri LJ 3529, the Apex Court considered the case of Mohanlal Shamji Soni (supra) wherein it noted that 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 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 or mistakes during the conducting of a case cannot be understood as the lacuna which a Court cannot fill up. In para 7 of the said law report, the Apex Court further pointed out, inter alia, that 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. 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. 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 arid declare who among the parties performed better. 14. In P. Chhaganlal Daga v. M. Sanjay Shaw (2003) 11 SCC 486, the Apex Court while considering the power of the Court under Section 311, Cr.P.C. took note of its earlier decisions in Rajendra Prasad (supra) as well as Mohanlal Shamji Soni (supra). 15. Therefore, in view of the decisions of the Apex Court as stated supra, there is no hesitation in the mind of this Court that the second part of the section is not a discretionary power of the Court, rather it is obligatory in nature to the Court for coming to a just decision of the case. 16. Upon perusal of the judgment of the Apex Court in Rajendra Prasad (supra), this Court is of considered opinion that the learned trial Court failed to discharge its duties cast upon it by the legislature and consequently, committed gross injustice to the accused-petitioners when the accused-petitioners in their application under Section 311, Cr.P.C. specifically stated that due to mistake some questions relating to their (P.Ws.) earlier statement before the investigating agency could not be asked to the prosecution witnesses for which their further examination is necessary or otherwise they (accused-petitioners) would be prejudiced. This Court is of the further opinion that the findings of the learned trial Court that unless the witnesses are re-examined or that new evidences are not revealed, the question of re-cross-examination does not arise at all cannot sustain in view of the decision of the Apex Court in Rajendra Prasad (supra) as even if a witness was not re-examined or new evidences are not produced by the prosecution then also the accused-petitioners are entitled to further cross-examine the prosecution witnesses if due to mistake some questions could not be asked to them which were necessary for the defence as well as for ends of justice. 17. In a criminal justice system the Court should always keep in mind that an accused should not be deprived of any of his rights which he is entitled to in accordance with law to prove his innocence and to disprove the charge levelled against him. In the instant case, when it is admitted by the accused-petitioners that due to certain laches or mistake they failed to ask certain questions to the prosecution witnesses through their learned lawyer, the learned trial Court should have allowed the accused-petitioners to put those questions to the prosecution witnesses as that would not in any way affect the prosecution case, rather would help the Court to come to a just decision of the case. Prosecution story depends upon the prosecution witnesses and the case of the defence depends upon the evidence of the prosecution witnesses, mainly available in cross. 18. It is a settled position that an accused can take the benefit of the lacuna of the prosecution case, but the prosecution cannot take the help of defence case to prove the charge except in a case where the plea of alibi is pleaded by the accused-person or to discharge the burden under Section 106 of the Evidence Act. 19. As the case of Rajendrasinh Jaidevsinh Dabhi (supra) and Rajesh K. Kondappa (supra) have been decided after taking aid from the earlier decision, in Rajendra Prasad (supra), it is not necessary for this Court to discuss the same again as it would be the repetition of the same fact only. 20. 19. As the case of Rajendrasinh Jaidevsinh Dabhi (supra) and Rajesh K. Kondappa (supra) have been decided after taking aid from the earlier decision, in Rajendra Prasad (supra), it is not necessary for this Court to discuss the same again as it would be the repetition of the same fact only. 20. In the light of the foregoing observations either of the Apex Court or of this Court and in view of the fact that the petitioners have made clear some of the material beneficial to the defence has come to the light, it is just and necessary to permit the petitioners to cross-examine those witnesses only on the limited questions mentioned in the application. It is also made clear that it will be open for the prosecution to ask any question in re-examination in case of exigency. 21. Hence, for the aforesaid reasons the petition is allowed, the impugned order of the learned trial Court dated 10-11-2009 is set aside and the petitioners are permitted to cross-examine P.Ws. 1 to 4. They are directed to appear before the learned trial Court on 17-5-2010 and on their appearance, the learned trial Court shall fix the date for such re-examination. No further adjournment shall be sought for, for this purpose. 22. Rule is made absolute to the aforesaid extent. Petition is allowed. Petition allowed