Research › Search › Judgment

Bombay High Court · body

2010 DIGILAW 959 (BOM)

Yeshwant s/o Namdeorao Zade v. Anup @ Laloo s/o Subhashchandra Jaiswal

2010-07-08

R.M.BORDE

body2010
Judgment 1. Rule. Rule is made returnable forthwith. Heard by consent of the learned counsel for the parties. 2. The applicants are raising exception to the interim order passed by the learned 1st Ad hoc Additional Sessions Judge, Wardha, on 2-3-2010, below Exhibits 125 and 126, in Sessions Case No.81 of 2005. 3. The learned Additional Sessions Judge, during the conduct of the Sessions Trial, has directed the prosecution to examine two doctors, namely Dr. S.B. Thorat of Government Hospital, Wardha, and Dr. H.N. Chhabran of Indira Gandhi Medical College & General Hospital, Nagpur, as additional witnesses, who were not cited as witnesses by the prosecution. The Trial Court, in exercise of powers under Section 311 of the Code of Criminal Procedure, has directed the prosecution to examine said two doctors as additional witnesses, which order is subjected to challenge in this application. 4. It is not necessary to go into the factual details of the controversy involved in the matter. It would be sufficient to note that one Anup Jaiswal presented a complaint to the Magistrate bearing Regular Criminal Complaint No.111 of 2004 and after recording the evidence of the three witnesses cited by the complainant, the learned Chief Judicial Magistrate, Wardha, in view of the order passed on 322005, directed issuance of process against the accused for offences punishable under Sections 147, 148, 149 and 395 read with Section 34 of the Indian Penal Code. By subsequent order passed by the learned Chief Judicial Magistrate, he was pleased to commit the case to the Court of Session, since the offences were exclusively triable by the Court of Session. The prosecution opened the case before the Court of Session and examined the witnesses cited by the complainant. During continuance of the trial, an application came to be tendered by the prosecution requesting the Court to examine the additional witnesses, as stated above. The application tendered by the prosecution was strongly opposed by the accused on the ground that the witnesses named in the application were not cited in the complaint, nor those had been examined before the learned Chief Judicial Magistrate prior to taking cognizance of the case. It is thus contended that the evidence of the additional witnesses cannot be permitted to be recorded in view of the bar contained in Section 202 of the Code of Criminal Procedure. It is thus contended that the evidence of the additional witnesses cannot be permitted to be recorded in view of the bar contained in Section 202 of the Code of Criminal Procedure. It is also contended that the provisions of Section 311 of the Code of Criminal Procedure also cannot be invoked, because granting of such permission would tantamount to permitting the prosecution to fill the lacunae appearing in the case. 5. The learned Additional Public Prosecutor has supported the impugned order passed by the Trial Court and contended that the Trial Court has properly exercised discretion while permitting the examination of the witnesses and the satisfaction arrived at by the Trial Court in reaching the conclusion as regards the justifiability to examine the additional witnesses shall not be a matter of scrutiny by the superior Court. 6. I have perused the application as well as the impugned order passed by the Trial Court and heard the arguments advanced by the respective counsel appearing for the parties. 7. The learned counsel appearing for the applicant has invited my attention to the provisions of Section 202 of the Code of Criminal Procedure and contended that the proviso to subsection (2) of Section 202 of the Code mandates the Magistrate to call upon the complainant to produce all witnesses and examine them on oath before the Magistrate before he takes cognizance of the case. It is contended that the complainant chose to examine only three witnesses before issuance of process by the learned Chief Judicial Magistrate. It was obligatory on the part of the complainant to examine all the witnesses in support of his case before the learned Chief Judicial Magistrate and then the process could have been issued. The provisions of Section 311 of the Code of Criminal Procedure, which empowers the Court to permit examination of witnesses, shall have to be read in consonance with the proviso to subsection (2) of Section 202 of the Code. It is further contended the accused cannot be taken by surprise by permitting the prosecution to record the evidence of the witnesses to whom the prosecution failed to examine prior to taking cognizance by Magistrate. It is further contended the accused cannot be taken by surprise by permitting the prosecution to record the evidence of the witnesses to whom the prosecution failed to examine prior to taking cognizance by Magistrate. The very object of inclusion of proviso to subsection (2) of Section 202 of the Code is to keep the accused bestowed with the knowledge as regards the circumstances appearing against him, and the same is sought to be defeated in view of the order passed by the Trial Court at the instance of the prosecution. 8. The learned counsel for the applicants seeks leave to rely on the judgment of the Division of this Court in the matter of Shyamkant Wamanrao Pawar and others v. State of Maharashtra and others, reported in 1980 Cri.L.J. 1388. This Court, while dealing with the provisions of Section 202 of the Code of Criminal Procedure, has held that the observance of the condition imposed in the proviso to subsection (2) of Section 202 of the Code is mandatory and the same would be further clear from perusal of Section 208 of the Code. It is thus contended that the Trial Court, in exercise of powers conferred under Section 311 of the Code, cannot permit the examination of the witnesses, whose evidence was not recorded prior to taking cognizance of the case by the Magistrate. 9. A reliance is also placed on the judgment of the Apex Court in Rosy and another v. State of Kerala and others, reported at AIR 2000 SC 637 . The Apex Court, while interpreting the provisions of Section 202, subsection (2) of the Code, has held that the compliance of the proviso to subsection (2) of Section 202 of the Code cannot be held to be mandatory and the directive contained in the said proviso cannot be construed as absolute mandate. The Apex Court has observed in paras 44 and 45 of the judgment as under : “44. At initial stage, if objection is raised and it is found by the Sessions Court that by non-holding of inquiry, prejudice is caused to the accused, he may direct the Magistrate to follow the procedure prescribed under the proviso. It is no doubt true that by the use of the word 'shall', it appears that language used in the proviso is of mandatory nature. It is no doubt true that by the use of the word 'shall', it appears that language used in the proviso is of mandatory nature. It is to be read in context of Section 200 which enables the Magistrate to issue process without holding any inquiry and that inquiry under Section 202 is itself discretionary one giving option to examine or not to examine witnesses on oath. Hence, proviso to the said subsection is required to be read accordingly though couched in mandatory term by using the word 'shall'. Normally, the procedure prescribed therein should be followed, but nonobservance of the said procedure may not vitiate further proceedings in all cases. In a case where a complainant is filed, not by the public servant, and where the offence is exclusively triable by the Court of Sessions, the Magistrate should follow the proviso to subsection (ii) of Section 202 and call upon the complainant to produce all his witnesses and examine them on oath. This would be in consonance with the provision of Section 208 which inter-alia provides for supply of copy of statements and documents to accused. This would facilitate the Sessions Court in framing the charge or discharging the accused. In the Sessions triable case, under Section 226 the prosecution has to open its case by describing the charge brought against the accused and stating by what evidence it proposes to prove the guilt of the accused. On such submission, the Sessions Court is required to consider the record of the case and the documents submitted therewith and, after hearing the submissions of the accused and prosecution in this behalf, to decide whether there is sufficient ground or not for proceeding against the accused. Upon such consideration, if the Court finds that there is no sufficient ground for proceeding against the accused, he shall be discharged as provided under Section 227. In case, where there is sufficient ground, Court is required to frame the charge as provided under S.228. Hence, for the purpose of framing the charge also the recording of such evidence is necessary. It also facilitates the accused to know allegations made against him as well as evidence in support thereof. However, in a case where complaint is filed by a public servant after holding inquiry and recording the statements, question of recording of such evidence may not arise. It also facilitates the accused to know allegations made against him as well as evidence in support thereof. However, in a case where complaint is filed by a public servant after holding inquiry and recording the statements, question of recording of such evidence may not arise. Hence, compliance of proviso by the Magistrate in all Sessions triable cases is not a must and would not vitiate the further trial unless prejudice caused to the accused is established.” “45. Further, the aforesaid interpretation would be in consonance with Chapter XXXV of the Cr.P.C. which deals with irregularities in the proceedings, which may or may not vitiate the proceedings. Sections 460 and 461 provide which irregularities would or would not vitiate the proceedings. In these sections, there is no mention of Section 202. For our purpose reference to section 465 would suffice, which inter alia specifically provides that irregularity in the complaint, summons, warrant, order or other proceedings before or during trial or in any inquiry shall not be a ground for reversing order passed by the competent Court, unless in the opinion of that Court a failure of justice has in fact been occasioned thereby. Subsection (2) further provides that in determining whether any irregularity in proceedings has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings. Hence, the statute does not expressly provide for nullification of the order as a consequence of noncompliance of proviso to subsection (2) of Section 202, but provides that unless prejudice is caused, the order is not to be set aside. This would mean that during inquiry under Section 202 when Magistrate examines the witnesses on oath, as far as possible proviso is to be complied with but the mandate is not absolute.” In view of the judgment of the Apex Court, cited supra, the view adopted by the Division Bench in Shyamkant Wamanrao Pawar and others v. State of Maharashtra and others, cited supra, can no more be considered to be the law governing the field in respect of interpretation of the provision of subsection (2) of Section 202 and the proviso thereto. 10. 10. The learned counsel for the petitioner has further sought leave to rely on the judgment of this Court in the matter of R.N. Kakkar v. Hanif Gafoor Naviwala and others, reported at 1996 Cri.L.J. 365. This Court, in pursuance of the request made by the prosecution agency for production of additional evidence and examination of additional witnesses, had considered the scope of applicability of the provisions of Section 311 of the Code of Criminal procedure. In the context of the matter before the Court, the learned Single Judge of this Court found that permitting the prosecution to produce additional evidence would amount to plug-in the holes in its case, for such an exercise of power would be defeating the very object for which it has been bestowed on the Court, namely the just decision of the case, and it would be a capricious exercise of power by the Court. The judgment delivered in the matter of R.N. Kakkar v. Hanif Gafoor Naviwala and others, cited supra, is essentially based on the facts and circumstances of the case appearing before the Court and has no applicability to the facts and circumstances of the present case. In the instant matter, the prosecution has extended a request for grant of permission to examine two doctors as expert witnesses. It is also to be taken note of that the relevant medical certificates and extract of MLC registers are already kept on record by the prosecution. So far as examination of the experts is concerned, their previous statement need not be recorded and obviously the same need not be supplied to accused. It is sufficient compliance of the provisions if the prosecution places on record the extracts of the relevant medical certificates on which the prosecution wishes to place reliance. In the instant matter, the relevant documentary evidence pertaining to examination of the complainant or any other witness is already placed on record. The Trial Court was, therefore, within its bounds to permit the examination of the expert witnesses and according of such permission is essential to the just decision of the case. 11. The scope of exercise of powers under Section 311 of the Code of Criminal Procedure has fallen for consideration of the Apex Court in the matter of Iddar and others v. Aabida and another, reported at AIR 2007 SC 3029 . 11. The scope of exercise of powers under Section 311 of the Code of Criminal Procedure has fallen for consideration of the Apex Court in the matter of Iddar and others v. Aabida and another, reported at AIR 2007 SC 3029 . While stressing the need and agitating about the permissibility of granting permission to examine the additional witnesses by the Court in exercise of powers under Section 311 of the Code, the Apex Court has gone to the extent of observing that even though the examination of witnesses as directed by the Court is likely result in what is thought to be “filling of loopholes”, same can be accorded. But according to the Apex Court, that is purely a subsidiary factor. The relevant observations of the Apex Court are contained in paras 11 and 12 of the judgment and those are quoted below : “11. 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 for 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 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 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.” “12. As indicated above, the Section is wholly discretionary. 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. As indicated above, the Section is wholly discretionary. The second part of it imposes upon the Magistrate an obligation: it is, that the Court shall summon and examine all persons whose evidence appears to be essential to the just decision of the case. It is a cardinal rule in the law of evidence that the best available evidence should be brought before the Court. Sections 60, 64 and 91 of the Indian Evidence Act, 1872 (in short, 'Evidence Act') are based on this rule. The Court is not empowered under the provisions of the Code to compel either the prosecution or the defence to examine any particular witness or witnesses on their side. This must be left to the parties. But in weighing the evidence, the Court can take note of the fact that the best available evidence has not been given, and can draw an adverse inference. The Court will often have to depend on intercepted allegations made by the parties, or on inconclusive inference from facts elicited in the evidence. In such cases, the Court has to act under the second part of the section. Sometimes the examination of witnesses as directed by the Court may result in what is thought to be “filling of loopholes”. That is purely a subsidiary factor and cannot be taken into account. Whether the new evidence is essential or not, must of course depend on the facts of each case, and has to be determined by the Presiding Judge.” 12. Considering the facts and circumstances of the instant case, I am of the opinion that the Trial Court was justified in permitting the prosecution to examine the additional witnesses, who were not examined by the complainant, at pre-cognizance stage. Considering the fact that the witnesses sought to be examined are the medical experts and further considering that the relevant documentary evidence pertaining to examination of the prosecution witnesses is already placed on record by the prosecution, there was absolutely no error on the part of the Trial Court in according permission to the prosecution for examination of the expert witnesses. Therefore, no interference is called for in the impugned order passed by the learned 1st Ad hoc Additional Sessions Judge, Wardha. 13. Consequently, the application is rejected. Rule is discharged.