Research › Search › Judgment

Chhattisgarh High Court · body

2014 DIGILAW 115 (CHH)

Chamandas v. State of C. G.

2014-03-10

GOUTAM BHADURI

body2014
ORDER Goutam Bhaduri, J. 1. The applicant has preferred this petition under section 482 of Cr.P.C. being aggrieved by the order dated 3/09/2013 passed by the Additional Sessions Judge, Dongargarh in Sessions Case No. 21/2012 whereby application on behalf of Chamandas the petitioner under Section 311 read with 231 of Cr.P.C. has been rejected wherein the petitioner wanted to confront the witnesses with further cross examination. Learned counsel for the petitioner submits that the trial court has not considered the fact whether the question which were said to be proposed was relevant or not but the learned court below without going into merits has dismissed the application. He submits that the dismissal was only on the ground that earlier counsel who had appeared had cross examined the witnesses. Thereafter the other counsel who had subsequently entered his appearance wanted to cross examine the witness again which cannot be allured. The counsel further submits that such dismissal of application simplicitor by a non speaking order is bad in law. He further submits that when the application under Section 311 of Cr.P.C. was made specially in the nature herein, the court should not have dismissed it on technical ground without much deliberation on merits. 2. Learned counsel for the petitioner relies on the law reported in the matter of Sudevanand v. State through CBI 2012 AIR SCW 953 and also in the matter of Rajaram Prasad Yadav v. State of Bihar & Anr. 2013 AIR SCW 4179, and would submit that the Hon'ble Supreme Court has laid down the principle governing the decision for application of section 311 of Cr.P.C. The relevant part is reproduced herein below:-- "Para 23. From a conspectus consideration of the above decisions, while dealing with an application under Section 311 Cr.P.C. read along with Section 138 of the Evidence Act, we feel the following principles will have to be borne in mind by the Courts: (a) Whether the Court is right in thinking that the new evidence is needed by it? Whether the evidence sought to be led in under Section 311 is noted by the Court for a just decision of a case? (b) The exercise of the widest discretionary power under Section 311 Cr.P.C. should ensure that the judgment should not be rendered on inchoate, inconclusive speculative presentation of facts, as thereby the ends of justice would be defeated. Whether the evidence sought to be led in under Section 311 is noted by the Court for a just decision of a case? (b) The exercise of the widest discretionary power under Section 311 Cr.P.C. should ensure that the judgment should not be rendered on inchoate, inconclusive speculative presentation of facts, as thereby the ends of justice would be defeated. (c) If evidence of any witness appears to the Court to be essential to the just decision of the case, it is the power of the Court to summon and examine or recall and re-examine any such person. (d) The exercise of power under Section 311 Cr.P.C. should be resorted to only with the object of finding out the truth or obtaining proper proof for such facts, which will lead to a just and correct decision of the case. (e) The exercise of the said power cannot be dubbed as filling in a lacuna in a prosecution case, unless the facts and circumstances of the case make it apparent that the exercise of power by the Court would result in causing serious prejudice to the accused, resulting in miscarriage of justice. (f) The wide discretionary power should be exercised judiciously and not arbitrarily. (g) The Court must satisfy itself that it was in every respect essential to examine such a witness or to recall him for further examination in order to arrive at a just decision of the case. (h) The object of Section 311 Cr.P.C. simultaneously imposes a duty on the Court to determine the truth and to render a just decision. (i) The Court arrives at the conclusion that additional evidence is necessary, not because it would be impossible to pronounce the judgment without it, but because there would be a failure of justice without such evidence being considered. (j) Exigency of the situation, fair play and good sense should be the safe guard, while exercising the discretion. The Court should bear in mind that no party in a trial can be foreclosed from correcting errors and that 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. The Court should bear in mind that no party in a trial can be foreclosed from correcting errors and that 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. (k) The Court should be conscious of the position that after all the trial is basically for the prisoners and the Court should afford an opportunity to them in the fairest manner possible. In that parity of reasoning, it would be safe to err in favour of the accused getting an opportunity rather than protecting the prosecution against possible prejudice at the cost of the accused. The Court should bear in mind that improper or capricious exercise of such a discretionary power, may lead to undesirable results. (l) The additional evidence must not be received as a disguise or to change the nature of the case against any of the party. (m) The power must be exercised keeping in mind that the evidence that is likely to be tendered, would be germane to the issue involved and also ensure that an opportunity of rebuttal is given to the other party. (n) The power under Section 311, Cr.P.C. must therefore, be invoked by the Court only in order to meet the ends of justice for strong and valid reasons and the same must be exercised with care, caution and circumspection. The Court should bear in mind that fair trial entails the interest of the accused, the victim and the society and, therefore, the grant of fair and proper opportunities to the persons concerned, must be ensured being a constitutional goal, as well as a human right." 3. He would further submit that since trial was under Section 302 of IPC as such the court while dismissing the application the court should have satisfied itself that whether it was essential to examine a witness or to recall him for further examination was necessary or was required or not in order to arrive at a just decision of the case. He would submit that section 311 of Cr.P.C. simultaneously imposes a duty on the court to determine the truth and render a just decision and therefore he prays that the case be remanded back and prays for quashing of the order dated 3/09/2013 passed by the learned court below. 4. He would submit that section 311 of Cr.P.C. simultaneously imposes a duty on the court to determine the truth and render a just decision and therefore he prays that the case be remanded back and prays for quashing of the order dated 3/09/2013 passed by the learned court below. 4. Per contra learned State counsel opposes the same. 5. Hon'ble Supreme Court has laid down the principle that the court must be satisfied that whether it was essential to examine a witness or to recall him for further examination to arrive at a just decision as that simultaneously imposes a duty on the court to determine the truth and to render a just decision. The Hon'ble Supreme Court has further laid down the guidelines which have been quoted above and have further has held that the power under Section 311, Cr.P.C. must therefore, be invoked by the Court only in order to meet the ends of justice for strong and valid reasons and the same must be exercised with care, caution and circumspection. The Court should bear in mind that fair trial entails the interest of the accused, the victim and the society and, therefore, the grant of fair and proper opportunities to the persons concerned, must be ensured being a constitutional goal, as well as a human right. 6. Reading the order in between the lines, whereby the application has been dismissed under Section 311 Cr.P.C. it reflects that no reason was assigned by the learned court below in terms of the law laid down by the Apex Court. The application was only dismissed on the ground that since the witnesses were earlier examined and cross examined by a counsel namely Sachin R Gupta and Sambhu Shende and thereafter when the other counsel was engaged on 5/07/2013 it will not give right to the applicant/petitioner for further examination and cross examination of the witness under Section 311 Cr.P.C. The application under Section 311 Cr.P.C. which is also placed before this court purports that the question pertaining to geographical situation as also other facts including the statement of death panchnama witness were highlighted. Application also purports that with respect to seizure also the question were not confronted. 7. Application also purports that with respect to seizure also the question were not confronted. 7. Reading in between the lines of the order of the trial court, I do not find any such discussion as to why said application was rejected by the court below instead the rejection is only on the sole ground that the engagement of other counsel will not give a right for cross examination. The reason assigned was that the earlier counsel was not junior to the newly appointed counsel. To my considered opinion this cannot be made the ground of rejection by the learned court below. The learned court below before making an order of rejection should have considered about the essential of such question which might have gone to roots of the matter. The result might have been either way in favour of prosecution or in favour of accused. In view of this, the matter is remanded back to the court below with a direction that the learned court below shall pass speaking order considering and evaluating the question which have been projected in Section 311 of Cr.P.C. in view of this, the order dated 3/09/2013 is set aside and the matter is remanded back to the court below to reconsider the application on merits and pass a speaking order evaluating the essential of such question. Application allowed.