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2015 DIGILAW 343 (GAU)

Debnath Mahara v. State of Assam

2015-03-20

M.R.PATHAK

body2015
ORDER : M.R. Pathak, J. 1. The petitioner is an accused of an offence under Section 302 of the Indian Penal Code (IPC, in short) for causing death of one Nanki Panika on 25.09.2010 and for that purpose trial case, being Sessions Case No. 389 (N) 10 is pending against him before learned Additional District & Sessions Judge, (FTC), Hojai, Sankardev Nagar in the District of Nagaon, Assam. In order to bring home the said charge of Section 302 IPC against the accused petitioner, the prosecution has examined 13 (thirteen) prosecution witnesses, including the Investigating Officer of the case, in the said Sessions Case No. 389 (N) 10 and after their cross examination by the defence, they were accordingly discharged. After closing of the prosecution evidence, the said case was fixed for examination of the accused, the present petitioner under Section 313 of the Code of Criminal Procedure (Cr.P.C. in short) as required and 28.08.2012, 10.09.2012 & 24.09.2012 were the dates fixed for the said purpose. 2. The prosecution on 24.09.2012 preferred a petition under Section 311 of the Cr.P.C. before the learned Trial Court for recalling the Investigating Officer of the case for his re-examination. The prosecution in the said application under Section 311pleaded before the learned Trial Court that the evidence of prosecution witnesses revealed that there is some contradiction about the place of seizure and therefore, re-examination of the Investigating Officer is very much required to clear the point of seizure of the Dao' (weapon of assault) for the ends of justice and for right decision of the case. The petitioner submitted written objection against prosecution's said petition under Section 311 Cr.P.C. submitting that if the same is allowed, it will cause prejudice to him. 3. However, learned Additional District & Sessions Judge, (FTC), Hojai, Sankardev Nagar, after hearing the parties, vide his order dated 05.10.2012 passed in Sessions Case No. 389 (N) 10 allowed the said application of the prosecution under Section311 Cr.P.C. and re-called the Investigating Officer for the purpose of his re-examination on 18.10.2012. 4. Hence, being aggrieved, the accused petitioner has filed this Criminal Revision Petition under Sections397/401 Cr.P.C. read with Article 227 of the Constitution of India praying for setting aside the impugned order dated 05.10.2012 passed by learned Additional District & Sessions Judge, (FTC), Hojai, Sankardev Nagar in said Sessions Case No. 389 (N) 10. 5. 4. Hence, being aggrieved, the accused petitioner has filed this Criminal Revision Petition under Sections397/401 Cr.P.C. read with Article 227 of the Constitution of India praying for setting aside the impugned order dated 05.10.2012 passed by learned Additional District & Sessions Judge, (FTC), Hojai, Sankardev Nagar in said Sessions Case No. 389 (N) 10. 5. Heard Sri Golap Chandra Phukan along with Sanjay Kumar Singh learned counsels for the petitioner. Also Heard K. Munir, learned Additional Public prosecutor, Assam for the State Respondent. 6. The main contention of the accused petitioner is that evidence of prosecution was already closed and if the Investigating Officer is recalled for his re-examination under Section 311 of the IPC, at that stage, it would cause prejudice to him. The accused petitioner contended that after examination of prosecution witnesses in chief, they were thoroughly cross examined and after closing of the evidence of prosecution witnesses, they were accordingly discharged. Thereafter, 28.08.2012, 10.09.2012 & 24.09.2012 were the dates fixed by learned Trial Court for examination of the accused petitioner under Section 313 of the Cr.P.C. and that stage, the prosecution on 24.09.2012 filed the petition under Section 311 IPC for re-examination of the Investigating Officer only to fill up the lacuna in the case of prosecution, which is not permissible under the law. 7. The petitioner submitted that in the petition under Section 311 Cr.P.C. for recalling of the Investigating Officer, the prosecution's only contention was that there was a discrepancy in the prosecution evidence about the place of seizure of the 'Dao'. But there was no admission from the side of the prosecution, in clear term, that there was a statement, which needs to be proved. According to the accused petitioner, there was no such reason and material justification for recalling the Investigating Officer for his re-examination under Section 311 Cr.P.C. and therefore the impugned order dated 05.10.2012 not being a reasoned & explicit order and mere a cryptic order, is liable to be set aside. 8. According to the accused petitioner, there was no such reason and material justification for recalling the Investigating Officer for his re-examination under Section 311 Cr.P.C. and therefore the impugned order dated 05.10.2012 not being a reasoned & explicit order and mere a cryptic order, is liable to be set aside. 8. The accused petitioner also submitted that he being an accused of the case of murder trial, he may be put to gallows even after conclusion of the trial and therefore, it is the bounden duty of the Trial Court to proceed in the case with extreme caution and circumspection, leaving no chance of causing any prejudice against the accused facing trial and that the presiding officer of a court may be an active partner in the proceeding, but this does not grant exoneration against the probable prejudice that may be occasioned by an order not approved by law. According to the petitioner, the learned Trial Court while passing the impugned order dated 05.10.2012 did not even consider it necessary to indicate how the alleged discrepancy as to the place of seizure of the 'Dao' would go against the fair trial of the offence and as the learned Court below passed the said impugned order allowing the prosecution to re-examine a discharged witness without explaining any reason for a failure of fair trial, the same is liable to be quashed, otherwise he would suffer injustice. 9. Section 311 Cr.P.C. provides power to the Court to summon material witness, or examine person present and it reads as follows- "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." 10. The Hon'ble Supreme Court of India in the case of Sister Mina Lalita Baruwa v. State of Orissa & Ors. reported in AIR 2014 SC 782 (2013) 16SCC173 have held that- "19. The Hon'ble Supreme Court of India in the case of Sister Mina Lalita Baruwa v. State of Orissa & Ors. reported in AIR 2014 SC 782 (2013) 16SCC173 have held that- "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 mere 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 where after 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 ensures 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." "21. The whole scheme of the Code of Criminal Procedure envisages foolproof system in dealing with a crime alleged against the accused and thereby ensures 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." "21. Having referred to the above statutory provisions, we could discern that while under Section301(2) the right of a private person to participate in the criminal proceedings has got its own limitations, in the conduct of the proceedings, the ingredients of Section 311 empowers the trial Court in order to arrive at a just decision to resort to an appropriate measure befitting the situation in the matter of examination of witnesses. Therefore, a reading Sections 301 and 311 together keeping in mind a situation like the one on hand, it will have to be stated that the trial Court should have examined whether invocation of Section 311 was required to arrive at a just decision. In other words even if in the consideration of the trial Court invocation of Section 301(2) was not permissible, the anomalous evidence deposed by PW-18 having been brought to its knowledge should have examined the scope for invoking Section 311 and set right the position. Unfortunately, as stated earlier, the trial Court was in a great hurry in rejecting the appellant's application without actually relying on the wide powers conferred on it under Section 311 Cr.P.C. for recalling PW-18 and ensuring in what other manner, the grievance expressed by the victim of a serious crime could be remedied. In this context, a reference to some of the decisions relied upon by the counsel for the appellant can be usefully made." "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 Cr.P.C. 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 (2004) 4 SCC158), a Criminal Court cannot remain a silent spectator. As has been held by this Court in Zahira Habibullah H. Sheikh (2004) 4 SCC158), 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 Cr.P.C. 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 PW-18 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 Cr.P.C. 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." 11. In the case of Rajaram Prasad Yadav v. State of Bihar & Anr. reported in (2013) 14 SCC 461 , Hon'ble Supreme Court of India have held that- "14. A conspicuous reading of Section 311 Cr.P.C. 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. reported in (2013) 14 SCC 461 , Hon'ble Supreme Court of India have held that- "14. A conspicuous reading of Section 311 Cr.P.C. 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. Section 138 of the Evidence Act, prescribed the order of examination of a witness in the Court. Order of reexamination is also prescribed calling for such a witness so desired for such re-examination. Therefore, a reading of Section 311 Cr.P.C. and Section138 Evidence Act, insofar as it comes to the question of a criminal trial, the order of re-examination at the desire of any person under Section 138, will have to necessarily be in consonance with the prescription contained in Section 311 Cr.P.C. It is, therefore, imperative that the invocation of Section311 Cr.P.C. 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 re-examination 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 re-examination 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 re-examined 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." 12. After considering various decision of the Hon'ble Supreme Court of India on the interpretation of Section 311 of the Cr.P.C. the Hon'ble Apex Court in the aforesaid case of Rajaram Prasad Yadav v. State of Bihar & Another have laid down the following principles, which are to be borne in mind by the Courts, while dealing with an application under Section 311 of the Cr.P.C. and they are as follows: "17.1. 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? 17.2. 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. 17.3. 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. 17.4. 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. 17.5. 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. 17.6. The wide discretionary power should be exercised judiciously and not arbitrarily. 17.7. 17.6. The wide discretionary power should be exercised judiciously and not arbitrarily. 17.7. 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. 17.8. 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. 17.9. 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. 17.10. 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. 17.11. 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 man 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. 17.12. The additional evidence must not be received as a disguise or to change the nature of the case against any of the party. 17.13. 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. 17.14. 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. 17.14. 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." 13. In the case of P. Sanjeeva Rao v. State of A.P. reported in (2012) 7 SCC 56 , the Hon'ble Apex Court while deciding a matter related to Section 311 of the Cr.P.C. have held that- "Fairness of the trial is a virtue that is sacrosanct in our judicial system and no price is too heavy to protect that virtue." 14. Similarly in the case of Mohanlal Shamji Soni v. Union of India & Anr. reported in 1991 Suppl (1) SCC271, Hon'ble Apex Court while deciding a matter relating to Section 540 of Cr.P.C. 1898, equivalent to Section 311 of the Cr.P.C. 1973, have held that- "10. It is cardinal rule in the law of evidence that the best available evidence should be brought before the Court to prove a fact or the points in issue. But it is left either for the prosecution or for the defence to establish its respective case by adducing the best available evidence and the Court is not empowered under the provisions of the Code to compel either the prosecution or the defence' to examine any particular witness or witnesses on their sides. Nonetheless if either of the parties withholds any evidence which could be produced and which, if produced, be unfavourable to the parry withholding such evidence, the Court can draw a presumption under illustration (g) to Section 114 of the Evidence Act. In such a situation a question that arises for consideration is whether the presiding officer of a Court should simply sit as a mere umpire at a contest between two parties and declare at the end of the combat who has won and who has lost or is there not any legal duty of his own, independent of the parties, to take an active role in the proceedings in finding the truth and administering justice? It is a well accepted and settled principle that a Court must discharge its statutory functions - whether discretionary or obligatory -according to law in dispensing justice because it is the duty of a Court not only to do justice but also to ensure that justice is being done. In order to enable the Court to find out the truth and render a just decision, the salutary provisions of Section 540 of the Code (Section 311 of the new Code) are enacted where under any Court by exercising its discretionary authority at any stage of enquiry, trial or other proceeding can summon any person as a witness or examine any person in attendance though not summoned as a witness or recall or re-examine any person in attendance though not summoned as a witness or recall and re-examine any person already examined who are expected to be able to throw light upon the matter in dispute; because if judgments happen to be rendered on inchoate, inconclusive and speculative presentation of facts, the ends of justice would be defeated." "18. The next important question is whether Section 540 gives the Court carte-blanche drawing no underlying principle in the exercise of the extraordinary power and whether the said Section is unguided, uncontrolled and uncanalised. Though Section 540 (Section 311 of the new Code), is, in the widest possible terms and calls for no limitation, either with regard to the stage at which the powers of the Court should be exercised, or with regard to the manner in which they should be exercised, that power is circumscribed by the principle that underlines Section 540, namely, evidence to be obtained should appear to the Court essential to a just decision of the case by getting at the truth by all lawful means. Therefore, it should be borne in mind that the aid of the section should be invoked only with the object of discovering relevant facts or obtaining proper proof of such facts for a just decision of the case and it must be used judicially and not capriciously or arbitrarily because any improper or capricious exercise of the power may lead to undesirable results. Further it is incumbent that due care should be taken by the Court while exercising the power under this section and it should not be used for filling up the lacuna left by the prosecution or by the defence or to the disadvantage of the accused or to cause serious prejudice to the defence of the accused or to give an unfair advantage to the rival side and further the additional evidence should not be received as a disguise for a retrial or to change the nature of the case against either of the parties." "27. The principle of law that 'emerges from the views expressed by this court in the above decisions is that the Criminal Court has ample power to summon any person as a witness or recall and re-examine any such person even if the evidence on both sides is closed and the jurisdiction of the Court must obviously be dictated by exigency of the situation, and fair play and good sense appear to be the only safe guides and that only the requirements, of justice command the examination of any person which would depend on the facts and circumstances of each case." 15. In the present case it is seen that when the prosecution filed the petition under Section 311 of the Cr.P.C. for recalling the Investigating Officer of the case for his re-examination, the accused petitioner was yet to be examined under Section 313 of the Cr.P.C. and the trial of the criminal proceeding, wherein the accused petitioner was an accused under Section 302 of the IPC, was _ still pending. Learned Trial Court, while accepting the application of the prosecution for recalling the Investigating Officer, found that some material facts are to be brought on record as revealed from the case diary as well as evidence. Though learned Trial Court considered that application under Section 311 Cr.P.C. filed by prosecution cannot be accepted/entertained for the purpose of filling up of lacuna, but with regard to the case in hand, learned Court below considered the fact that the case relates to Section 302 of the IPC and that evidence of the Investigating Officer is very vital and that there is material with regard to 'leading to discovery,' on the basis of statement of the accused petitioner and that the said statement of the accused petitioner has not been brought on record. Learned Court considering the same, came to the conclusion that in appropriate case, the Court is empowered to allow the prosecution to bring witness under Section 311 of the Cr.P.C. for just decision of the case and accordingly by the impugned order dated 05.10.2012 allowed the said petition of the prosecution under Section 311 Cr.P.C. fixing 18.10.2012 for appearance of the concerned Investigating Officer. 16. From the impugned order dated 05.10.2012, it is seen that the leaned Trial Court duly considered the application of the prosecution under Section 311 of the Cr.P.C. to recall the Investigating Officer of the case as his re-examination have been found to be vital to arrive at a just decision of the case. In the present case, the learned Trial Court found material for re-examination the Investigating Officer of the case, who is an essential witness of the case and in opinion of this Court, has rightly exercised the inherent power under Section 311 Cr.P.C. by recalling him in the interest of justice and to serve cause of justice. In the present case, the learned Trial Court used his discretionary power only with the object of discovering relevant facts and to obtain proper proof of such facts for a just decision of the case and has rightly done it as laid down by the Hon'ble Apex Court that -the whole scheme of the Code of Criminal Procedure envisages foolproof system in dealing with a crime alleged against the accused and thereby ensures that the guilty does not escape and innocent is not punished. 17. Since 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; in the present case, learned Trial Court has rightly passed the impugned order dated 05.10.2012 in the exigencies of justice require, otherwise there would be a failure of justice without such evidence being considered. 18. Further, while re-examining the Investigating Officer by the prosecution in the case before the learned Trial Court, the accused petitioner shall also get the chance to cross-examine the said witness again and to rebut that new/fresh evidence brought on record against him. In this regard the Hon'ble Apex Court in the case of Rameshwar Dayal & Ors. 18. Further, while re-examining the Investigating Officer by the prosecution in the case before the learned Trial Court, the accused petitioner shall also get the chance to cross-examine the said witness again and to rebut that new/fresh evidence brought on record against him. In this regard the Hon'ble Apex Court in the case of Rameshwar Dayal & Ors. v. State of U.P. reported in (1978) 2 SCC 518 (AIR 1978 SC1558), has settled the law that: "whenever any additional evidence is examined or fresh evidence is admitted against the accused, it is absolutely necessary in the interest of justice that the accused should be afforded a fair and reasonable opportunity, to rebut that evidence brought on record against him." 19. In view of the above, this Court is of the opinion that the learned Additional District & Sessions Judge, (FTC), Hojai, Sankardev Nagar, did not commit any illegality in passing the impugned order dated 05.10.2012 in Sessions Case No. 389 (N) 10 in re-calling the Investigating Officer, exercising his power under Section 311 Cr.P.C. Accordingly, this application being devoid of merit stands dismissed. No order as to cost. Application Dismissed.