Research › Search › Judgment

Rajasthan High Court · body

2014 DIGILAW 1663 (RAJ)

Patram v. State of Rajasthan

2014-10-10

SANDEEP MEHTA

body2014
JUDGMENT : The insant misc. petition has been preferred by the petitioner accused Patram against the order dated 3.6.2014 passed by the learned Special Judge, NDPS Act Cases, Bikaner in Sessions Case No.3/2006 whereby, the learned trial Court directed recalling of the Seizure Officer Vikram Singh for further examination by exercising powers under Section 311 Cr.P.C. Learned counsel for the petitioner submits that the prosecution failed to exhibit the Muddamal during the course of the examination in chief of the witness. A specific plea was raised before the trial Court on behalf of the accused at the stage of final arguments that failure to exhibit the Muddamal entitled the accused to an acquittal. The trial Court rather than accepting the said argument, acted in a totally arbitrary fashion and without there being any prayer of the prosecution, proceeded to direct recalling of the Seizure Officer to fill up the lacuna left by the prosecution. He thus prays that the impugned order deserves to be quashed. I have heard the arguments advanced by the learned counsel for the petitioner and have gone through the impugned order. The provision of Section 311 Cr.P.C. authorises the court to summon, recall and re-examine any witness at any stage of the trial if in the opinion of the court, it is necessary in the interest of justice to examine such witness. The law is also well settled that non-exhibition of the Muddamal in the court would make the recovery itself doubtful. Thus, in a case under the NDPS Act, the prosecution is under an obligation to produce and exhibit the Muddamal before the court at the trial so as to tender physical proof of recovery. The Hon'ble Supreme Court considered the scope and ambit of the court's powers under Section 311 Cr.P.C. in the case of Sister Mina Lalita Baruwa Vs. State of Orissa & Ors. reported in AIR 2014 SC 782 and held as below: "19. In criminal jurisprudence, while the offence is against the society, it is the unfortunate victim who is the actual sufferer and therefore, it is imperative for the State and the prosecution to ensure that no stone is left unturned. State of Orissa & Ors. reported in AIR 2014 SC 782 and held as below: "19. In criminal jurisprudence, while the offence is against the society, it is the unfortunate victim who is the actual sufferer and therefore, it is imperative for the State and the prosecution to ensure that no stone is left unturned. It is also the equal, if not more, the duty and responsibility of the Court to be alive and alert in the course of trial of a criminal case and ensure that the evidence recorded in accordance with law reflect every bit of vital information placed before it. It can also be said that in that process the Court should be conscious of its responsibility and at times when the prosecution either deliberately or inadvertently omit to bring forth a notable piece of evidence or a conspicuous statement of any witness with a view to either support or prejudice the case of any party, should not hesitate to interject and prompt the prosecution side to clarify the position or act on its own and get the record of proceedings straight. Neither the prosecution nor the Court should remain a silent spectator in such situations. Like in the present case where there is a wrong statement made by a witness contrary to his own record and the prosecution failed to note the situation at that moment or later when it was brought to light and whereafter also the prosecution remained silent, the Court should have acted promptly and taken necessary steps to rectify the situation appropriately. The whole scheme of the Code of Criminal Procedure envisages foolproof system in dealing with a crime alleged against the accused and thereby ensure that the guilty does not escape and innocent is not punished. It is with the above background, we feel that the present issue involved in the case on hand should be dealt with.[Emphasis Supplied] 26. In the decision in Rajendra Prasad (supra), this Court pointed out the distinction between lacuna in the prosecution and a mistake or error inadvertently committed which can always be allowed to be set right by permitting parties concerned by the Criminal Courts in exercise of its powers conferred Under Section 311 Code of Criminal Procedure or Under Section 165 of the Evidence Act. In paragraph 7, this Court has clarified as to what is a lacuna which is distinct and different from an error committed by a public prosecutor in the course of trial. The relevant part of the said paragraph reads as under: ...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.... [Emphasis Supplied] 27. Again in paragraph 8, this Court has pointed out as to the duty of the Criminal Court to allow the prosecution to correct such errors in the interest of justice. Paragraph 8 of the said judgment reads as under: 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 in advertence, 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. [Emphasis added] 31. Having noted the various decisions relied upon by the learned Counsel for the Appellant referred to above on the interpretation of Sections 301 and 311 of Code of Criminal Procedure as well as Section 165 of the Evidence Act, it will have to be held that the various propositions laid down in the said decisions support our conclusion that a Criminal Court, while trying an offence, acts in the interest of the society and in public interest. As has been held by this Court in Zahira Habibullah H. Sheikh (supra), a Criminal Court cannot remain a silent spectator. As has been held by this Court in Zahira Habibullah H. Sheikh (supra), a Criminal Court cannot remain a silent spectator. It has got a participatory role to play and having been invested with enormous powers Under Section 311 of Code of Criminal Procedure as well as Section 165 of the Evidence Act, a trial Court in a situation like the present one where it was brought to the notice of the Court that a flagrant contradiction in the evidence of PW18 who was a statutory authority and in whose presence the test identification parade was held, who is also a Judicial Magistrate, ought to have risen to the occasion in public interest and remedied the situation by invoking Section 311 of Code of Criminal Procedure by recalling the said witness with the further direction to the public prosecutor for putting across the appropriate question or court question to the said witness and thereby set right the glaring error accordingly. It is unfortunate to state that the trial Court miserably failed to come alive to the realities as to the nature of evidence that was being recorded and miserably failed in its duty to note the serious flaw and error in the recording of evidence of PW-18. In this context, it must be stated that the prosecutor also unfortunately failed in his duty in not noting the deficiency in the evidence. The observation of the High Court while disposing of the revision by making a casual statement that the Appellant can always file the written argument equally in our considered opinion, was not the proper approach to a situation like the present one. What this Court wishes to ultimately convey to the courts below is that while dealing with a litigation, in particular while conducting a criminal proceeding, maintain a belligerent approach instead of a wooden one. 32. Having noted the above-mentioned decisions laid before us by the learned Counsel for the parties on the scope of Section 311 Code of Criminal Procedure. we wish to refer a recent decision rendered by this Court in Rajaram Prasad Yadav v. State of Bihar and Anr. AIR 2013 SC 3081 , wherein in paragraph 14 the law has been stated as under: 14. we wish to refer a recent decision rendered by this Court in Rajaram Prasad Yadav v. State of Bihar and Anr. AIR 2013 SC 3081 , wherein in paragraph 14 the law has been stated as under: 14. A conspicuous reading of Section 311, Code of Criminal Procedure would show that widest of the powers have been invested with the Courts when it comes to the question of summoning a witness or to recall or re-examine any witness already examined. A reading of the provision shows that the expression "any" has been used as a pre-fix to "court", "inquiry", "trial", "other proceeding", "person as a witness", "person in attendance though not summoned as a witness", and "person already examined". By using the said expression "any" as a pre-fix to the various expressions mentioned above, it is ultimately stated that all that was required to be satisfied by the Court was only in relation to such evidence that appears to the Court to be essential for the just decision of the case..... Therefore, a reading of Section 311, Code of Criminal Procedure and Section 138 Evidence Act, insofar as it comes to the question of a criminal trial, the order of reexamination at the desire of any person Under Section 138, will have to necessarily be in consonance with the prescription contained in Section 311, Code of Criminal Procedure. It is, therefore, imperative that the invocation of Section 311, Code of Criminal Procedure and its application in a particular case can be ordered by the Court, only by bearing in mind the object and purport of the said provision, namely, for achieving a just decision of the case as noted by us earlier. The power vested under the said provision is made available to any Court at any stage in any inquiry or trial or other proceeding initiated under the Code for the purpose of summoning any person as a witness or for examining any person in attendance, even though not summoned as witness or to recall or re-examine any person already examined. Insofar as recalling and reexamination of any person already examined, the Court must necessarily consider and ensure that such recall and re-examination of any person, appears in the view of the Court to be essential for the just decision of the case. Insofar as recalling and reexamination of any person already examined, the Court must necessarily consider and ensure that such recall and re-examination of any person, appears in the view of the Court to be essential for the just decision of the case. Therefore, the paramount requirement is just decision and for that purpose the essentiality of a person to be recalled and reexamined has to be ascertained. To put it differently, while such a widest power is invested with the Court, it is needless to state that exercise of such power should be made judicially and also with extreme care and caution.” Thus, it is evident that the court should be conscious and should see to it that no lacuna is left in the evidence either of the prosecution or the defence simply because of the failure of the Public Prosecutor or the defence counsel to put proper questions or to lead proper evidence. The failure of the Public Prosecutor conducting the case to get the Muddamal exhibited in the court during the evidence of the seizure witness was definitely nothing short of dereliction of duty. As a matter of fact, the trial Court itself should have been conscious enough at the particular point of time when the witness was being examined and should have directed the production of the Muddamal in the court. No sooner, the charge-sheet is filed in the court, the Muddamal as a matter of fact becomes the property of the court and the court has to be conscious that such property is exhibited at the trial. In the event, any inventory has been prepared under Section 52A of the NDPS Act, such inventory should be exhibited in evidence so that no lacuna is left in the case. Be that as it may, in my opinion, in view of the law propounded by the Hon'ble Supreme Court in the case of Sister Mina Lalita Baruwa (supra), the trial Court was well justified in directing to recall the Seizure Officer for exhibiting the Muddamal in court. Tested in light of the guidelines laid down by the Hon'ble Supreme Court in the aforesaid decision, this Court is of the opinion that the trial Court rightly exercised its discretion to recall the Seizure Officer in the court for exhibiting the Muddamal. Tested in light of the guidelines laid down by the Hon'ble Supreme Court in the aforesaid decision, this Court is of the opinion that the trial Court rightly exercised its discretion to recall the Seizure Officer in the court for exhibiting the Muddamal. The impugned order does not suffer from any illegality, irregularity or perversity nor can it be said to be arbitrary so as to call for any interference by this Court in exercise of its inherent powers under Section 482 Cr.P.C. Accordingly, the misc. petition as well as stay application being devoid of any merit, are hereby rejected.