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2013 DIGILAW 241 (ORI)

Susanta Kumar Moharana v. State of Orissa

2013-07-26

B.R.SARANGI

body2013
JUDGMENT Dr. B.R.Sarangi, J. This application is directed against the order dated 9.6.2004 passed by the learned Special Judge-cum-A.D.J., Paralakhemundi (Gajapati) in G.R.Case No.221 of 2002/ T.R.No.7 of 2002 arising out of Mohana P.S.Case No.28 of 2002 under Section 20 of the N.D.P.S. Act wherein in exercise of the power under Section 311 of the Code of Criminal Procedure, he has called upon the I.O. (P.W.7) for re-examination and directed the Special Public Prosecutor to furnish the names of the witnesses and the description of the documents, which the prosecution wants to examine/ prove for speedy trial. 2. The prosecution case, in brief, is that on 4.6.2002 the A.S.I. of Mohana P.S., who was on evening patrol duty, found three cement gunny bags lying in the rest-shed of Mohana Bus stoppage near T.R.W. hostel. He detained the petitioner, who was waiting for the Bus to way home and two others, who were standing there. It is further alleged that some other persons, who were standing there fled away seeing the police. The A.S.I. sent information to the Police Station. The O.I.C. and B.D.O. (P.W.5) arrived there and found three bags to have contained Canabis (Ganja) and the said articles were seized and on personal search, nothing was found from the petitioner. However, the petitioner was arrested and sent for trial. 3. The prosecution examined seven witnesses, whereas the petitioner examined himself under Section 315, Cr.P.C. In the said statement, the petitioner has explained the circumstances under which he was in Mohana Bus stand situated at Mohana Bazar area and stated that at the relevant time he had gone to Mohana in connection with marriage negotiation and was waiting for the bus to come back home. 4. After completion of trial, the case was posted to 9.4.2004 for judgment on which date the learned Special Judge did not deliver the same as some inherent defects in the prosecution case as pointed out by the defence to the extent that on 5.6.2002 the S.D.J.M. was not in office and the C.J.M. was in-charge and the S.D.J.M. appears to have sent the sample for chemical examination without referring in the order-sheet as to who authorized him to send the sample for chemical examination and it was also not reflected in the forwarding report if the seal was in-tact and the proper custody of the M.Os. from 5.6.2002 till 7.6.2002, the date it was produced in the Laboratory, has not been established. In this circumstances, vide order dated 9.6.2004 the learned Special Judge in exercise of the power conferred under Section 311, Cr.P.C. directed for recalling the I.O., P.W.7 for clarification and directed the Special P.P. to make a prayer in writing by next date, i.e. by 23.6.2004 stating therein the details of the names of the witnesses and description of the documents, which the prosecution wants to examine/ prove. In the impugned order, it was observed that any subsequent prayer to that effect shall not be entertained. 5. Heard learned counsel for the parties. 6. In the above backdrop of the case, learned counsel for the petitioners strenuously urged that the learned Special Judge could not have exercised the power under Section 311, Cr.P.C. to recall the witness, P.W.7 to fill up the lacuna in the prosecution case when the matter was posted for judgment after completion of adducing evidence by both parties. It is also further urged that in absence of any application filed by the prosecution for recalling the witnesses and calling for the documents, the court could not have issued such direction to patch up the defects, which ought to have gone in favour of the defence. He fairly submits that the law empowers the court to recall any witness or summon any witness at any stage of the proceeding, which does not mean that even after conclusion of the trial and the matter was posted for judgment. It is further stated that pursuant to the impugned order, the case has been adjourned to 23.6.2004, but the same is against the spirit of Section 309, Cr.P.C. Making a prayer to recall a witness is the statutory duty of the prosecution. The Court may suo motu recall a witness, but it is contrary to law to adjourn the case directing a party to perform his statutory duty in absence of any prayer to that effect to give a chance to the party to patch up its case and as such, the adjournment granted is contrary to Section 309, Cr.P.C., which is the only provision for adjournment. 7. 7. In view of the aforesaid facts and circumstances, it is to be examined whether in exercise of the powers under Section 311, Cr.P.C. the Court can summon a material witness or to examine a person present in court or to recall a witness already examined. For better appreciation, Section 311, Cr.P.C. is quoted below: “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.” 8. On a bare reading of the above mentioned provision, it is very much clear that it confers a wide discretion on the Court to act as and when the exigencies of justice require. The Section is in two parts, the first part gives a discretionary power, but the second 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 the 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 Sections 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 bonafide of the opinion that for the just decision of the case, the step must be taken. This power is exercisable at any time before the judgment. As the Sections 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 bonafide of the opinion that for the just decision of the case, the step must be taken. This power is exercisable at any time before the judgment. The law laid down in AIR 1968 S.C. 178 (Jametraj Kewalji Vogani v. State of Maharashtra; 1989 (2) SCR 52 (Benudhar Mohanty and others v. State of Orissa); 1991 (4) OCR 452 (Mukunda Dev Baral v. Sanjib Baral and others); AIR 1970 SC 272 (Khetra Basi Samal and another v. The State of Orissa); AIR 1973 SC 799 (Amar Chan Agrawala v. Shanti Bose and another); AIR 1975 SC 1854 (Pakalapati Narayana Gajapathi Raju and others v. Bonapalli Peda Appadu and another); 1992(5) OCR 268 (Nilamani Das v. Bhikari Nayak and others); 1993(6) OCR 451 (Gandharba Das and others v. State of Orissa); 1994(7) OCR 243 (Tusar Kanti Swain and another v. State of Orissa) and 1996(10) OCR 13 (Sabar Mahabhoi and others v. State of Orissa and others), supports the above view. 9. Keeping in view the above mentioned provisions, it is made clear that the power of the Court under Section 311, Cr.P.C. is plenary to summon or even recall any witness at any stage of the case if the Court considers it necessary for a just decision. It is the settled position of law that the Court should not permit to fill up the lacuna in the prosecution evidence by recalling a witness for further cross-examination. But then what is meant by “lacuna in a prosecution case” has to be understood before deciding the case. 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 old proverb “err is human” is the recognition of the possibility of making mistakes to which humans are susceptible. A corollary of any such laches or mistakes during the conduct of a case cannot be understood as a lacuna which a Court cannot fill up. Lacuna in the prosecution must be understood as the inherent weakness or a latent wedge in the matrix of the prosecution case. A corollary of any such laches or mistakes during the conduct of a case cannot be understood as a lacuna which a Court cannot fill up. 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. This principle is also equally applicable to the defence. No party in the 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 or special circumstances in putting relevant questions during cross-examination, the Court should be magnanimous in permitting such mistakes to be rectified. The 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. The apex Court in Rajendra Prasad v. Narcotic Cell through its Officer-in-charge, Delhi: AIR 1999 SC 2292 has laid down the principle which should weigh in the mind of a Judge deciding such an issue. 10. The law is well settled that in order to enable the Court to find out the truth and render a just decision, the salutary provisions of Section 311, Cr.P.C. are enacted whereunder any Court by exercising its discretionary authority at any stage of enquiry, trial or other proceeding can summon any person as witness or examine any person in attendance though not summoned as a witness or recall or re-examine any person already examined who are expected to be able to throw light upon the matter in dispute. 11. 11. In a recent judgment reported in (2013) 5 SCC 741 (Natasha Singh v. Central Bureau of Investigation (State), the Supreme Court while analyzing the scope and object of Section 311 Cr.P.C. has held in paragraph 8 as follows: “Section 311 Cr.P.C. empowers the court to summon a material witness, or to examine a person present at “any stage” of “any enquiry”, or “trial”, or “any other proceedings” under Cr.P.C, or to summon any person as a witness, or to recall and re-examine any person who has already been examined if his evidence appears to it, to be essential to the arrival of a just decision of the case. Undoubtedly, Cr.P.C has conferred a very wide discretionary power upon the court in this respect, but such a discretion is to be exercised judiciously and not arbitrarily. The power of the court in this context is very wide, and in exercise of the same, it may summon any person as a witness at any stage of the trial, or other proceedings. The court is competent to exercise such power even suo motu if no such application has been filed by either of the parties. However, the court must satisfy itself, that it was in fact essential to examine such a witness, or to recall him for further examination in order to arrive at a just decision of the case.” 12. In para-12 of the judgment in Natasha Singh (supra), reliance has been placed on the judgment in Rajendra Prasad (supra), wherein the apex Court has considered a similar issue and held as follows: “8. 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.” 13. 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.” 13. On perusal of the records, it is seen that the learned Special Judge while getting ready for delivering the judgment and on perusing the evidence available on record, found that the said Court as well as the Court of S.D.J.M. failed to take certain measures which as per the observations made by the Court in their decision ought to have been taken at the time when the seized property was produced before the court by the prosecuting agency. He further observed that omission on that count would likely to prove fatal to the prosecution. It has also been indicated that the omission done by the prosecution to the extent that vide order-sheet dated 5.6.2002 the O.I.C. Mohana P.S. made a prayer to send the sample ganja packets to the Deputy Director, RFSL, Berhampur and on that date, the C.J.M., Palakhemundi was in-charge of the court of learned S.D.J.M. and no order on the said prayer was passed on that date or any date thereafter. There is on record the copy of Memo No. 934(4) dated 5.6.2002 of the court of S.D.J.M., Palakhemundi, which reflects that on 5.6.2002 the learned S.D.J.M. sent the sample packets to the Deputy Director. It is not forthcoming as to on whose instructions the S.D.J.M. sent the sample packets for chemical examination. It is neither mentioned in the order-sheet nor in the forwarding report of the SDJM as to whether the seized articles were produced before the court with the seal in perfect order though on verification of the Sessions malkhana register, it is found that the M.Os. were received on 5.6.2002. Further, it is also not forthcoming from the case record as to when those sample items were produced before the court. 14. The aforesaid being the mistakes committed by the Court, the prosecution is likely to be highly prejudiced due to the aforesaid omission and therefore, it should not be allowed to suffer as that would cause miscarriage of justice. Considering the same, learned Special Judge wanted to exercise the power under Section 311, Cr.P.C. in the interest of justice to take some damage repair measure, which more so necessary when a case is at trial stage. Considering the same, learned Special Judge wanted to exercise the power under Section 311, Cr.P.C. in the interest of justice to take some damage repair measure, which more so necessary when a case is at trial stage. Accordingly, he has called upon the I.O., P.W.7, who can depose about the aforesaid facts and can testify as to the proper custody of the M.Os. as well as sample packets and in what manner those were produced before the SDJM and/or received by the Judge-in-charge of Sessions malkhana and who took the sample packets to the RFSL, Berhampur. The reasons assigned by the learned Special Judge are well founded inasmuch as the same is within the domain of the power conferred under Section 311, Cr.P.C. The 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. This being the position of law, here is a case of over-sight of the management of the prosecution, which has subsequently been detected and accordingly, by virtue of the impugned order, the error is sought to be corrected. Therefore, no party in the trial can be foreclosed from correcting errors. 15. In view of the aforesaid facts and circumstances and the law laid down by this Court as well as the apex Court, I find no infirmity or illegality in the impugned order passed by the learned Special Judge. Accordingly, I decline to interfere with the same. The CRLMC is dismissed.