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2013 DIGILAW 186 (GUJ)

Kishor Amrutlal Thakkar v. State of Gujarat

2013-03-28

N.V.ANJARIA

body2013
JUDGMENT : N.V. Anjaria, J. By order dated 23rd January 2013 passed in common below Application Exh. 266 and Application Exh. 276 in Sessions Case No.14 of 2009, the learned Third Additional Sessions Judge, Dhrangadhra, allowed the said two applications of the prosecution and thereby allowed the prosecution to call four witnesses for examination and to give evidence. 2. The applicant original accused felt aggrieved by the said order, and has therefore challenged the said order by presenting before this court the instant Revision Application under section 397 read with section 401 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Cr.P.C.'). 3. The profile of attendant facts may be stated. A First Information Report being I-C.R. No.120 of 2008 for the offences punishable under sections 302, 352, 143, 147, 148, 149 of the Indian Penal Code, 1860, was registered against the applicant-accused at Halvad Police Station, leading to commencement of Sessions Case No.14 of 2009 before the court of Additional Sessions Judge, Dhrangadhra. In the trial, the prosecution appears to have cited 41 witnesses. They were examined. At that stage and when the evidence of investigating officer was underway, application Exh. 266 dated 31.10.2012 was filed by the Additional Public Prosecutor submitting that two important witnesses, who were the wife and the mother of the deceased, were left out from being examined. It was submitted that on perusal of the papers and the copies of the depositions, it was found necessary in the interest of justice to examine witness No.36 named Jyotsnaben Jagdischandra Vaishnav, the mother of the deceased and witness No.37 named Nehaben Rajeshbhai Vaishnav, the wife of the deceased, and it was prayed that they be called for examination. By filing reply to the said application, the prayer therein was opposed by the original accused and it was submitted that the application was filed only to harass him and to protract the trial. Thereafter, the prosecution moved another application Exh.276 dated 15.01.2013 on the similar lines submitting that in course of the evidence of the investigating officer it was noticed that certain witnesses were left out but they were required to be examined, and in that connection, an application dated 31.10.2012 was given. Thereafter, the prosecution moved another application Exh.276 dated 15.01.2013 on the similar lines submitting that in course of the evidence of the investigating officer it was noticed that certain witnesses were left out but they were required to be examined, and in that connection, an application dated 31.10.2012 was given. It was further submitted that on a further examination of the depositions, which were not available at that time in the files, two other witnesses being witness No.29 - Sanjaybhai Pranbhai Patel and witness No.34 - Chandrakant Gopalbhai Sheri were required to be examined, and they may be permitted to be examined along with witness No.36 and witness No.37. Original accused persons objected to the said application by putting endorsement thereon. Learned Additional Sessions Judge considered both the applications Exh. 266 and Exh. 276 together and allowed the same. 4. Learned advocate for the applicant Mr. Ashish Dagli submitted that the witnesses now sought to be examined were those who were earlier dropped. He submitted that no context was cited nor any good reason was given for examining them now. It was further submitted that the said witnesses were not eye-witnesses, and their evidence would be hearsay evidence only. According to learned advocate, when nothing fruitful had come out for the prosecution from the testimonies of the eye-witnesses already examined, the applications below Ex.266 and Exh.276 were given, and thereby the prosecution wanted to fill up the lacuna, which was not the object of section 311, Cr.P.C. He next submitted that the applications were moved when examination of the witnesses was over and the trial was in its final stages, and that it was a dilatory tactic. Learned advocate further submitted that on two occasions earlier, this court has directed that the trial should be expeditiously proceeded and concluded. He referred to the oral order dated 15.09.2012 passed in Criminal Miscellaneous Application No.8954 of 2012, which was in the proceedings arising out of the trial in question, and wherein it was observed by this court that the trial shall proceed expeditiously and as far as possible on day-to-day basis. 4.1. Learned advocate for the applicant submitted that in the facts and circumstances of the case the powers under section 311 were erroneously exercised. 4.1. Learned advocate for the applicant submitted that in the facts and circumstances of the case the powers under section 311 were erroneously exercised. It was submitted that section 311 Cr.P.C contemplates that the court may summon any witness and examine him, if his evidence appears to be essential to just decision of the case. He emphasised to vehemently submit that the satisfaction of the court on the need to examine the two witnesses in question was absent in the facts of the case, and there being no such satisfaction arrived at or recorded or capable of being recorded, the impugned order was fraught with error of law, on the scope and ambit of section 311. 4.2. Learned advocate for the applicant relied on decision in Samir Dhar v. Smt. Rama Devi Dhar, (2011) Cr.L.J. 1183 (Gauhati High Court). He further relied on decision in Popatlal Jethabhai Shah v. State of Maharashtra, (2002) Cr.L.J. 794 (Bom. High Court). The next decision relied on was in Adham Rowther v. Sub Inspector of Police, Central Crime Branch, (1997) Cri.L.J. 529 (Madras High Court). Learned advocate also relied on decision in Shaikh Madinabibi Mustafabhai v. State of Gujarat, (2005) 2 GLR 1339 . By referring to all the above decisions, learned advocate for the applicant wanted to reinforce his submission that on facts of the present case, the learned Judge ought not to have exercised powers under section 311 of the Cr.P.C. He wanted to emphasise that what was essential to exercise the powers under section 311 Cr.P.C. was the satisfaction of the court about the need to examine the witnesses, and that such satisfaction was neither recorded in the order nor was revealed from the facts. 4.3. On the other hand learned Additional Public Prosecutor submitted that the witnesses who are sought to be examined were already cited in the charge-sheet and that they are considered as important witnesses by the prosecution after examining all the aspects of the matter. He submitted that therefore the applications were filed under section 311 Cr.P.C. were filed by learned A.P.P., who replaced the previously appearing Public Prosecutor in the court below. It was submitted that it was for the prosecution to judge and decide as to whom it should examine as witnesses. He submitted that therefore the applications were filed under section 311 Cr.P.C. were filed by learned A.P.P., who replaced the previously appearing Public Prosecutor in the court below. It was submitted that it was for the prosecution to judge and decide as to whom it should examine as witnesses. According to him, the accused could not validly contend that the witnesses sought to be called for are of no importance or that their evidence is not necessary. It was submitted that the court had wide discretion under the first part of the provision to summon any witness for examination, to be examined in aid of proper adjudication and just decision. 4.4. Learned Additional Public Prosecutor relied on the decision of the Supreme Court in Zahira Habibulla Sheikh v. State of Gujarat, AIR 2006 SC 1367 , in particular paragraph No.25 and paragraph No.26 thereof to counter the submission that earlier this court directed expeditious completion of the trial. Learned Additional Public Prosecutor submitted that those directions could not operate to scuttle the powers of the Court exercisable under section 311 Cr.P.C. in the course of the trial is a good case for examination of the witnesses was made out by the prosecution and that the court was satisfied that the witnesses should be permitted to be examined by the prosecution. 5. The court has carefully gone through the facts on record and has duly considered the submissions of the learned advocates appearing for the parties. It is seen that during the course of the trial in question, when the evidence of the investigating officer was underway, learned Additional Public Prosecutor was of the view that the prosecution witnesses who were not earlier examined and dropped, were required to be examined. The learned A.P.P. had replaced his predecessor and he formed such opinion after examination of the deposition papers. In that light, the application under section 311 Cr.P.C. was made and four witnesses were cited by the prosecution for examination. At the time when the application was moved the prosecution had examined forty one witnesses. 5.1. Section 311 Cr.P.C. dealing with the power of the court to summon material witness or examine person present, reads as under: "311. Power to summon material witness, or examine person present. At the time when the application was moved the prosecution had examined forty one witnesses. 5.1. Section 311 Cr.P.C. dealing with the power of the court to summon material witness or examine person present, reads as under: "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." 5.2. The import, ambit and object of the provision of section 311, Cr.P.C. (corresponding provision in old Code of Criminal Procedure, 1898 was section 540) has been comprehensively explained by the Apex Court in Jamatraj Kewalji Govani v. State of Maharashtra, AIR 1968 SC 178 , in which M. Hidayatullah, J. (as he then was) speaking for the Bench observed section 540 (of old Act) works with section 105 of the Evidence Act and both the sections interacting, confer jurisdiction on the Judge to act in aid of justice. "The section gives a power to the Court to summon a material witness or to examine a person present in court or to recall a witness already examined. It confers a wide discretion on the court to act as the exigencies of justice require. Another aspect of this power and complementary to it is to be found in section 165 of the Indian Evidence Act which provides: "Section 165: The Judge may, in order to discover or to obtain proper proof of relevant facts, ask any question he pleases, in any form, at any time, of any witness, or of the parties, about any fact relevant or irrelevant; and may order the production of any document or thing, and neither, the parties nor their agents shall be entitled to make any objection to any such question or order, nor, without the leave of the Court, to cross-examine any witness upon any answer given in reply to any such question" 5.3. Dissecting the provision jurisprudentially, Hidayatulla, J. observed further, "Section 540 is intended to be wide as the repealed use of the word 'any' throughout its length clearly indicates. Dissecting the provision jurisprudentially, Hidayatulla, J. observed further, "Section 540 is intended to be wide as the repealed use of the word 'any' throughout its length clearly indicates. The section is in two parts. The first part gives a discretionary power but the latter part is mandatory. The use of the word 'may' in the first part and of the word 'shall' in the second firmly establishes this difference. Under the first part, which is permissive, the court may act in one of three ways: (a) summon any person as a witness, (b) examine any person present in court although not summoned, and (c) recall or re-examine a witness already examined. The second part is obligatory and compels the Court to act in these three ways or any one of them, if the just decision of the case demands it. As the section stands there is no limitation on the power of the Court arising from the stage to which the trial may have reached, provided the Court is bona fide of the opinion that for the just decision of the case, the step must be taken. It is clear that the requirement of just decision of the case does not limit the action to something in the interest of the accused only. The action may equally benefit the prosecution. 5.4 In Zahira Shaikh (supra), the Supreme Court reiterated the aforementioned principles governing the exercise of powers under section 311 Cr.P.C. It was observed that the underlying purpose was that delivery of justice may not fell on account of mistake of either party in bringing the available evidence on record, or leaving ambiguity in the statements of the witnesses examined from either side. It was again emphasised that the provision is not confined for the benefit of the accused and that it will not be a improper exercise of powers under the provision of to summon a witness merely because it is at the instance of the prosecution or that the evidence supports the prosecution and not the accused. 6. From the conspectus of principles laid down in the above-referred decisions, it is evident that the object of exercising powers under section 311, Cr.P.C. in ultimate analysis, is to properly aid the process of adjudication by the court. 6. From the conspectus of principles laid down in the above-referred decisions, it is evident that the object of exercising powers under section 311, Cr.P.C. in ultimate analysis, is to properly aid the process of adjudication by the court. A court of law can have a wholesome adjudication of the controversy provided the evidence led before it happens to be complete and of unbroken nature. Accuracy and definitiveness of evidence matters more in criminal proceedings where the principle 'beyond reasonable doubt' applies. The wide discretion invested in the court under section 311, Cr.P.C. has underlying purpose of securing just decision in the case and thereby to serve ends of justice. The court is empowered to call for examination any witness a recall him when deems necessary. On the touchstone as above and the primordial purpose, the exercise of powers in the instant case and the impugned order would be required to be tested. The wider discretion invested in the court is to have its real purpose achieved. In the language of this section, the significant expression is 'at any stage of inquiry or trial or other proceedings under this Code'. The section confers a very wide power on the court for summoning the witness so that a wide spectrum of situations at any stage of the proceedings may be taken care of to secure the best evidence. The acid test, as already noticed, is to secure 'just decision of the case'. 'Just decision of the case' is again indicative of width of the discretion which the court enjoys while exercising its powers under the provision. 7. In the instant case, admittedly, the application of the prosecution below applications Exh. 266 and application Exh.276 filed by the prosecution would fall in the first part of section 311 Cr.P.C. There was no conceivable reason for not permitting the prosecution to examine the witnesses. The witnesses were not new witnesses. They were already named in the charge-sheet and figured at Sr. Nos.29, 34, 30 and 36. For some reason at one point of time the prosecution did not want them to be examined and they were dropped. A successor Public Prosecutor formed his own bona fide opinion upon studying the case and the depositions already recorded with those unexamined witnesses should be examined. Legally and legitimately, the prosecution was to be the best judge for examining its own witnesses. 7.1. A successor Public Prosecutor formed his own bona fide opinion upon studying the case and the depositions already recorded with those unexamined witnesses should be examined. Legally and legitimately, the prosecution was to be the best judge for examining its own witnesses. 7.1. If it was felt that those four witnesses would help the prosecution case and some useful evidence – direct, supportive or corroborative, would be elicited, there was nothing objectionable in permitting them to be examined. It is difficult to countenance the contention of the learned advocate for the applicant that since the main eyewitnesses were examined, the evidence of the witnesses sought to be called now would be of no use. It would be presumptuous that the evidence of these four witnesses may not help and examining them will be futile. The satisfaction of the court with those witnesses needed to be examined would be based on total picture of the case. The ultimate criteria being a just decision in the case and when the witnesses sought to be called were those already mentioned in the charge-sheet, the court was justified in reaching such satisfaction and consequentially exercising the powers under section 311 Cr.P.C. It is also noted by the trial judge that the accused would also get an opportunity to cross-examine the four witnesses. 7.2. The best evidence should be fomenting by permitting examination of all the witnesses who may throw light on the incident and who were considered necessary in someway or the other. It cannot be a ground to question the exercise of discretionary power of the court under section 311 Cr.P.C. that requirement to call the witnesses was a perspective of the prosecution. The exercise of powers under section 311 Cr.P.C. is not rendered inappropriate because the evidence may support the prosecution case. The benefit of section is not intended to accrue only to the side of the accused. 7.3. The contention of the learned advocate for the applicant that by seeking to call the witnesses for examination the prosecution was attempting to fill up the lacunae in its case is totally misconceived and misplaced. Merely because the application Exh. 266 and application Exh.276 were filed at a stage when prosecution evidence had considerably progressed, it could not be said that the prosecution was filling the gaps or making good the lacunae. It was a stock-contention only. Merely because the application Exh. 266 and application Exh.276 were filed at a stage when prosecution evidence had considerably progressed, it could not be said that the prosecution was filling the gaps or making good the lacunae. It was a stock-contention only. In Rajendra Prasad v. Narcotic Cell, (1999) 6 SCC 110 the Supreme Court explained what is meant by lacuna in the prosecution case, for which, it is apposite to extract the following observations. "It is a common experience in criminal courts that defence counsel would raise objections whenever courts exercise powers under Section 311 of the Code or under Section 165 of the Evidence Act, 1872 by saying that the court could not "fill the lacuna in the prosecution case". 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 the conducting of a case cannot be understood as a lacuna which a court cannot fill up." (Para 7) "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. 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 and declare who among the parties performed better." (Para 8) 7.4. The argument that the applications Exh. 266 and 276 were at the belated stage of trial and therefore could not be granted does not merit acceptance. The argument that the applications Exh. 266 and 276 were at the belated stage of trial and therefore could not be granted does not merit acceptance. The following observations deserve to be noticed from the decision of this court in Shaikh Madinabibi Mustafabhai v. State of Gujarat, (2005) 2 GLR 1339 : "Merely because the witness named in the application or any of them could have been called by the trial Court after conclusion of evidence of prosecution side, though is a legal submission, would not have any adverse effect on the strength of the case of the present petitioner. A party may not wait till wisdom emerge and can point out the need. If any party including the original complainant feels that a particular witness is required to be called, (i) though not named in the charge-sheet, (ii) if named, but decision to drop that witness has been conveyed to the Court, or (iii) any witness examined earlier be recalled then it may make a legitimate request to the Court to examine that witness as Court's witness and such a party may not wait till the conclusion of evidence. Efforts may not be recent, but search to truth is a legal obligation that requires to be discharged with utmost care and diligence." 7.5. In P. Chhaganlal Daga v. M. Sanjay Shaw, (2003) 11 SCC 486 the complainant moved the trial court with an application under section 311 Cr.P.C. after the arguments were concluded and the case was posted for judgment. The Apex Court disapproved the reasoning of the High Court that since the application was at belated stage, it amounted to filling up the lacuna or letting in corroboration of the evidence. In Mohanlal Shamji Soni v. Union of India, 1991 Supp (1) SCC 271, the Supreme Court observed that the power under section 311, Cr.P.C. could be exercised even if evidence on both sides is closed. It was observed that such jurisdiction of the court is dictated by the exigency of the situation and fair play. Referring to Mohanlal Shamji (supra), the Supreme Court in P. Chhaganlal Daga (supra) stated: "Even a reading of section 311 of the Code would show that Parliament has studded the said provision lavishly with the word 'any' at different places. This would also indicate the widest range of power conferred on the court in that matter. Referring to Mohanlal Shamji (supra), the Supreme Court in P. Chhaganlal Daga (supra) stated: "Even a reading of section 311 of the Code would show that Parliament has studded the said provision lavishly with the word 'any' at different places. This would also indicate the widest range of power conferred on the court in that matter. It is so stated by this court in Ram Chander v. State of Haryana, (1981) 3 SCC 191." 8. Decisions relied on by learned advocate for the applicant may now be considered. In Adham Rowther (supra) the order passed under section 311, Cr.P.C. by the Judicial Magistrate in that case was non-speaking order, which aspect was deprecated and on that ground the High Court set aside the same. In Popatlal Jethalal Shah (supra), the recalling of witness for further examination was on ground of material contradiction which was not brought out on record, which resulted into serious prejudice to the accused. Such is not the case or facts in the present case. In Samir Dhar (supra), the complainant had not indicated as to which part of her cross-examination needed further clarification, hence the order directing re-examination was set aside by the High Court. 9. In the above view, it could not be contended that the witnesses were not those who were 'needed' to be examined or that their examination would not help in 'just decision' of the case. The trial court's order speaks reasons while granting the applications Exh. 266 and Exh.276. It is observed that permitting the examination of the witness required by the prosecution would not prejudice the other side in any manner. It was observed that for the due decision of the case on merits, it was appropriate and in the interest of justice to give opportunity to the prosecution to examine those witnesses. Then, it cannot be said that there is no satisfaction arrived at by the trial court for the purpose of exercising of powers under section 311 Cr.P.C. The reasons supplied in the order represented the satisfaction of the court about the need to examine the witnesses. 9.1. Then, it cannot be said that there is no satisfaction arrived at by the trial court for the purpose of exercising of powers under section 311 Cr.P.C. The reasons supplied in the order represented the satisfaction of the court about the need to examine the witnesses. 9.1. The contention was raised on the basis of the observations of this Court in Criminal Miscellaneous Application No.8954 of 2012 that therein the court had required the trial to proceed expeditiously and as far as possible on day-to-day basis, and for that reason, the learned Judge was not justified in granting the applications for re-examination of the witnesses as it would delay the progress of the trial. On going through the oral order dated 15.09.2012 in the said Miscellaneous Criminal Application, it is clear that the court has required the trial to proceed expeditiously as far as possible and the court may be requested to proceed on day-to-day basis as far as possible. In any view those observations were only underlined the need for not brooking unnecessary delay in the trial. Those observations cannot be construed as limiting the exercise of power of the court under section 311 Cr.P.C. if in course of the trial, on being satisfied for the need to examine the witnesses the court has exercised the powers and has allowed the application of the prosecution. 10. For the foregoing reasons, the impugned order dated 23.01.2003 of the learned Additional Sessions Judge allowing applications Exh. 266 and 276 could not be faulted in any way. Accordingly, there is no substance in the present Revision Application and the same is dismissed summarily. Application dismissed.