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2015 DIGILAW 674 (ORI)

Shyamsunder Das v. State of Odisha

2015-12-02

S.K.MISHRA

body2015
ORDER : S.K. Mishra, J. 1. Heard learned counsel for the petitioner and learned Addl. Standing Counsel for the State. The petitioner being the accused in C.T. Case No. 514/2013 of the Court of learned Addl. Sessions Judge-cum-Special Judge Jajpur has assailed the order dated 17.10.2015 passed by the said court rejecting his application under Section 311 of the Cr.P.C. to recall P.Ws. 1 to 4 for cross-examination. 2. It is apparent from the record that on 10.3.2014 and 11.3.2014 P.Ws. 1 to 4 were examined in chief. However they could not be cross-examined because of pre-occupation of the representing counsel. Therefore the learned Addl. Sessions Judge-cum-Special Judge Jajpur rejected the application on the ground that there is a delay of seventeen months for filing the application and the contents of the petition are false. 3. Learned counsel for the petitioner relied upon the reported case of Rajendra Prasad v. Narcotic Cell, 1999 (II) OLR (SC) 558 : 1999 SCC (Cri) 1062 wherein the Hon'ble Supreme Court has held that no party to a trial can be denied the opportunity to correct errors if any committed by it. If proper evidence was not adduced or the relevant material was not brought on record due to any inadvertence the Court should be magnanimous in permitting such a mistake to be rectified. What people expect is that the Court should discharge its obligation to find out where in fact the truth lies. Right from inception of the judicial system it has been accepted that discovery vindication and establishment of truth are the main purposes underlying the existence of the courts of justice. In the case of Natasha Singh v. Central Bureau of Investigation (State) 2013 (II) OLR (SC) 577 : (2013) 5 SCC 741 the Hon'ble Supreme Court further held that the scope and object of the provision is to enable the Court to determine the truth and to render a just decision after discovering all relevant facts and obtaining proper proof of such facts to arrive at a just decision of the case. Power must be exercised judiciously and not capriciously or arbitrarily as any improper or capricious exercise of such power may lead to undesirable results. Power must be exercised judiciously and not capriciously or arbitrarily as any improper or capricious exercise of such power may lead to undesirable results. An application under Section 311 of the Cr.P.C. must not be allowed only to fill up a lacuna in the case of the prosecution or of 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 opposite party. Further the additional evidence must not be received as a disguise for retrial or to change the nature of the case against either of the parties. Such a power must be exercised provided that the evidence that is likely to be tendered by a witness is germane to the issue involved. An opportunity of rebuttal however must be given to the other party. 4. Learned counsel for the petitioner further relied upon the case of Rajaram Prasad Yadav v. State of Bihar and Another, (2013) 14 SCC 461 wherein the Hon'ble Supreme Court has field "A conspicuous reading of Section 311Cr.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 prefix 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 prefix 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 1872 prescribed the order of examination of a witness in the court. The order of re-examination is also prescribed calling for such a Witness so desired for such re-examination. Section 138 of the Evidence Act 1872 prescribed the order of examination of a witness in the court. The order of re-examination 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 Section 311 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 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 is concerned the court must necessarily consider and ensure that such recall and reexamination 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. The Supreme Court further gave guidelines which are enumerated as follows: "While dealing with an application under Section 311 Cr.P.C. read along with Section 138 of the Evidence Act 1872 the following principles will have to be borne in mind by the courts:- (i) 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? Whether the evidence sought to be led in under Section 311 is noted by the court for a just decision of a case? (ii) 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 and speculative presentation of facts as thereby the ends of justice would be defeated. (iii) 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. (iv) 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. (v) 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. (vi) The wide discretionary power should be exercised judiciously and not arbitrarily. (vii) 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. (viii) 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. (ix) 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. (x) Exigency of the situation fair play and good sense should be the safeguard 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. (xi) 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 party 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. (xii) The additional evidence must not be received as a disguise or to change the nature of the case against any of the party. (xiii) 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. (xiv) 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." 5. Applying all the aforesaid principles laid down by the Supreme Court this Court is of the opinion that failure to accord fair hearing either to the accused or the prosecution violates even minimum standards of due process of law. It is inherent in the concept of due process of law that condemnation should be rendered only after the trial in which the hearing is a real one, not sham or a mere farce and pretence. Since the fair hearing requires an opportunity to preserve the process it may be vitiated and violated by an overhasty stage-managed tailored and partisan trial (Zahira Habibulla H. Sheikh & Anr. V. State of Gujarat & Ors. Since the fair hearing requires an opportunity to preserve the process it may be vitiated and violated by an overhasty stage-managed tailored and partisan trial (Zahira Habibulla H. Sheikh & Anr. V. State of Gujarat & Ors. AIR 2004 SC 3114 . 6. Keeping in view the aforesaid consideration this Court is of the opinion that the petitioner is facing a charge under Section 302 of the IPC which is visited with maximum punishment of death penalty. In such an event if witnesses were not cross-examined because of the latches of the counsel appearing for the petitioner and on a later stage an application to recall the witnesses is filed the same should not be rejected out rightly as this Court is of the opinion that for the latches of the counsel appearing for the petitioner the party should not suffer. This Court is also of the opinion that P.Ws. 1 to 4 are not cross-examined effectively then there is every chance of miscarriage of justice as their testimony shall go uncontroverted. Hence this Court is of the opinion that the order passed by the Addl. Sessions Judge-cum-Special Judge Jajpur is unsustainable and therefore the same is quashed. The petition dated 11.9.2015 is hereby allowed. The Addl. Sessions Judge-cum-Special Judge Jajpur is directed to recall P.Ws. 1 to 4 for the purpose of their cross-examination. The petitioners counsel shall be given reasonable opportunity to cross-examine the witnesses and thereafter if necessary an application to recall the I.O. may be filed by the learned counsel for the petitioner before the trial court which shall also be allowed. However if the petitioners counsel deliberately seeks adjournment and does not cooperate the court for proper trial of the case then it is open for the learned Addl. Sessions Judge-cum-Special Judge Jajpur to disengage the counsel for the defence and appoint a State Defence Counsel having sufficient experience to defend the accused. Of course in such a situation it is appropriate to grant some reasonable time to prepare for conducting the case. 7. With such observation the CRLMC is allowed. Urgent certified copy of this order be granted on proper application.