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J&K High Court · body

2013 DIGILAW 162 (JK)

Alok Sharma v. State

2013-03-19

Virender Singh

body2013
1. Petitioner has been put to trial to face a charge of Section 376/420 RPC. Since the prosecution could not produce its entire evidence despite availing opportunities, its evidence was closed by the order of the Court. Thereafter, State moved an application under section 540 Cr.P.C for summoning PW Basanti Bhat, the Investigating Officer (for short `I.O') of the present case which has been allowed vide order dated 21-04-2012 of learned Principal Sessions Judge, Jammu (impugned herein). The petitioner through the instant petition has sought quashment of the aforesaid order. 2. It needs to be mentioned here that during the pendency of the instant petition, the trial Court was directed to go ahead with the recording of the evidence, but a restraint has been put for pronouncing the final order. During this period, statement of I.O sought to be summoned has been recorded and even cross-examined by the defence. However, the statement of the accused could not be recorded under section 342 Cr.P.C as the trial Court record has been summoned for perusal of this Court. 3. Heard Mr. Sethi learned senior Advocate assisted by Ms. Surbhi Gupta Advocate, Mrs. Watali, learned Dy.AG and perused the entire record. 4. Mr. Sethi learned Senior Advocate submits that although section 540 CrPC confers a wide discretion on the Court to act as the exigencies of justice require, but it also imposes certain limitations and one of such limitation is that this discretion is not to be exercised in a case of already summoned witness as is the fact position in the case on hand where the prosecution could not produce the I.O despite summoning him which ultimately constrained the trial Court to close the prosecution evidence. He has read over Section 540 CrPC to put his view point home. According to learned Senior Counsel, allowing the witness to be examined in such a situation will amount to giving leverage to the prosecution to fill up all loopholes at its whims and this would hamper the fair trial. 5. Mr. Sethi then submits that in the present case, it appears that the application under section 540 CrPC has been allowed by the learned trial Court on asking, whereas the role of the trial Court is to be of an impartial umpire. In the same breath, Mr. 5. Mr. Sethi then submits that in the present case, it appears that the application under section 540 CrPC has been allowed by the learned trial Court on asking, whereas the role of the trial Court is to be of an impartial umpire. In the same breath, Mr. Sethi submits that even otherwise the evidence of Investigating Officer is not essential for the just decision of the Court as is the settled legal position. Therefore, the order impugned herein is totally perverse, as such not sustainable, hence liable to be quashed. 6. Mrs. Watali, learned Dy.AG however supports the impugned order primarily on the ground that examining the I.O would not cause any prejudice to the case of the petitioner-accused as no new material is being brought in the trial so as to say that it amounts to filling up the loopholes as the entire investigation carried out in this case is already made known to the accused in the challan itself before he was put to trial. She, thus, prays for the dismissal of the instant petition. 7. Hon'ble Apex Court in a case titled Mohan Lal Shamji Soni v. Union of India and another, reported in 1991 Supp (1) SCC 271, while reiterating the earlier view rendered in a case titled Jamatraj Kewalji Govani v. State of Maharashtra, reported in AIR 1968 SC 178 , in para 9 of the said Judgment, has observed 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 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.' 8. While dealing with the second part of section 540 CrPC, in more detail, their Lordships in para 16 of the Judgment observed as under: "16. While dealing with the second part of section 540 CrPC, in more detail, their Lordships in para 16 of the Judgment observed as under: "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 part 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 views of Lumpkin, J.in Epss v. S., 19 Ga 118 (Am), 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." 9. Paramount principle underlying this provision is to arrive at the truth by examining `any person' as a witness whose evidence at any stage of conducting trial or other proceedings under the Code appears to the Court `essential to the just decision' of the case. The Court is neither pro-prosecution nor pro-accused. It is pro-justice. 10. The arguments advanced by Mr. Sethi learned Senior Advocate with regard to the limitations in exercising the discretion as contained in section 540 CrPC vis-a-vis already summoned witness may look somewhat attractive, but not acceptable as it would defeat the very purpose of this section. Mr. Sethi has loosely read Section 540 Cr.P.C. 11. Bare reading of first part of section 540 CrPC clarifies the position of any person to be examined. It is in three parts viz., (a) to summon any person as a witness or (b) to examine any person present in the Court though not summoned as a witness or(c) to recall and reexamine any person already examined. 12. Bare reading of first part of section 540 CrPC clarifies the position of any person to be examined. It is in three parts viz., (a) to summon any person as a witness or (b) to examine any person present in the Court though not summoned as a witness or(c) to recall and reexamine any person already examined. 12. To summon `any one as a witness' is to be construed in a very wider sense and the discretionary power can be exercised under this umbrella, undoubtedly as the exigencies of justice require and not on mere asking by either side. The other situation is with regard to `any person is in attendance', who is not summoned as a witness, the discretion still lies with the Court to examine him also. There is no embargo on it. For instance, `A' is cited as a witness in the list of witnesses, but not summoned for any reason whatsoever, but he is in attendance, it is the discretion of the Court to examine him also, if his evidence appears to be essential for the just decision of the case. It does not mean that any person who is cited as a witness and once summoned also can not be examined by the Court while exercising its discretion as contained in first part of section. 540 CrPC. This would simply curtail the power of the trial Court and the proper proof of relevant facts to meet the requirements of justice would never come on record to arrive at the truth, resulting into miscarriage of justice. Therefore, first part of section 540 CrPC which deals with the discretionary power of the Court for examining a witness falling in a particular category as referred to hereinabove cannot be read as Mr. Sethi learned Senior Advocate wants to read it. The third situation does not call for discussion at this stage as Mr. Sethi has not joined issue on that aspect. 13. What emerges from the aforesaid discussion is that while dealing with the discretionary exercise as contained in section 540 CrPC, firstly the `position' and secondly the `importance' of a particular witness are the two relevant factors. By position, what it construes is the placement of a person in the aforesaid three categories and by importance, what it means is whether the person to be examined is a material witness or not. By position, what it construes is the placement of a person in the aforesaid three categories and by importance, what it means is whether the person to be examined is a material witness or not. If he turns out to be a material witness from whom the trial Court in its wisdom can obtain proper proof of relevant facts in order to meet the requirement of justice, then, a duty is imposed upon the Court to examine that material witness so as to arrive at the truth. Paramount consideration is that there should not be any miscarriage of justice. 14. Let us now advert to the facts of the present case. Apparently, a question may crop up for its answer that once the trial Court had closed the evidence of prosecution by order of the Court, the importance of the I.O remains the same as it is projected in the application moved by the prosecution under section 540 CrPC for exercising discretion to summon him once again and in case he is allowed to be examined, it may amount to giving rope to the prosecution to cover up its weaknesses. The answer to this situation would be that the earlier order of closing the prosecution evidence was on account of default which is a procedural provision, whereas section 540 CrPC is an enabling provision which requires to be appreciated with a different yardstick altogether, that too within the ambit of this section only and not beyond that. In an earlier situation, the Public Prosecutor is supposed to exhaust his entire list of prosecution witnesses, may be material or formal being master of the prosecution case where the Court has to only ensure that the trial is not unnecessarily delayed, whereas the scope of section 540 Cr.P.C is altogether different where the basic test is that the evidence of a person to be summoned should be essential for the just decision of the case. Therefore, closing of evidence by the order of the Court would not stand in the way of exercising the discretionary power under section 540 Cr.P.C. It goes without saying that this discretionary power is not to be exercised casually by the Court as it can cause prejudice to either side during the trial. However, this depends upon the facts of each individual case. 15. However, this depends upon the facts of each individual case. 15. The petitioner in the case on hand is facing a serious charge of section 376/420 RPC. Therefore, the argument put forth by Mr. Sethi that the evidence of I.O is not important being immaterial witness, in my considered view, is not sustainable. He is undoubtedly a material. 16. Admitted position before the Court is that the evidence of I.O has already been recorded and he is also cross-examined at length by the defence counsel as the trial Court was directed to go ahead with the trial, but with a restraint of passing the final order. The prosecution case was at the stage of recording of the statement of the accused under section 342 CrPC when the records were summoned by this Court, as such the trial is stalled at that stage only. Learned trial Court, thus, is directed to wrap up the trial of the present case without any delay. Even otherwise, the cases of this nature have to be put on fast track. Trial Court record be sent back to the Court concerned with utmost dispatch along with the copy of the order. 17. Registrar Judicial to take note of it.