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2016 DIGILAW 3203 (ALL)

BARNALI BAISHYA v. STATE OF U. P.

2016-09-20

VIJAY LAKSHMI

body2016
JUDGMENT Hon’ble Mrs. Vijay Lakshmi, J.—Both these applications, filed by the same applicant against the same opposite parties and arising out of the same trial, were connected vide order dated 28.5.2015 passed by this Court and are being disposed of by this common order. 2. The applicant, by means of the first application under Section 482 Cr.P.C. No. 753 of 2015, has invoked the inherent jurisdiction of this Court with prayer to set aside the order dated 18.7.2014 passed by II Additional Sessions Judge, Gautam Budh Nagar, on Application dated 14.11.2013 filed in S.T. No. 580 of 2011, State v. Shivalik Ghosh and another, under Section 376, 323, 328 I.P.C., P.S. Mahila Thana, Noida, District Gautam Budh Nagar, whereby the learned Additional Sessions Judge has rejected the application moved by the applicant under Section 311 Cr.P.C. 3. By means of second application under Section 482 Cr.P.C. No. 15142 of 2015, the applicant has prayed to direct the trial Court i.e. Additional Sessions Judge/F.T.C., Gautam Budh Nagar, not to proceed with the trial of S.T. No. 580 of 2011, State v. Shivalik Ghosh and another, under Sections 376, 323, 328 I.P.C., P.S. Mahila Thana, Noida, District Gautam Budh Nagar, till the pendency of Criminal Misc. Application under Section 482 No. 753 of 2015. 4. Heard the applicant Barnali Baishya, appearing in person, learned A.G.A. for the State and Mr. Swetashwa Agarwal, learned counsel for O.P. No. 2. Perused the records. 5. The brief facts of the case are that an FIR was lodged by the applicant on 3.12.2010 at Police Station Mahila Thana Noida, District Gautam Budh Nagar, against O.P. No. 2 to the effect that on fateful date i.e. 18.8.2010, the applicant/ victim, who was working in a software Company at Noida, was picked up from her office by O.P. No. 2, Shiwalik Ghosh, who took her to Gurgaon, where he mixed some intoxicating substance in her cold drink, due to which she lost her senses. Thereafter O.P. No. 2 committed rape with her. On regaining consciousness, when the applicant resisted and complaint about it, she was pacified by the O.P. No. 2 giving her a false assurance of solemnizing marriage with her. Thereafter the O.P. No. 2 started visiting the flat of applicant situated at NOIDA and made physical relations with her several times, every time giving her assurance to marry her very soon. Thereafter the O.P. No. 2 started visiting the flat of applicant situated at NOIDA and made physical relations with her several times, every time giving her assurance to marry her very soon. The applicant talked to his mother, who also assured her that their marriage will be performed after two years. It was alleged that on false assurance of marriage the accused/O.P. No. 2 continued to establish physical relations with her. He also took Rs. 50,000/- from the applicant and did not return. On 14.9.2010, the mother of O.P. No. 2 refused to perform the marriage of her son with the applicant and instead, she committed maarpeet with her. Feeling herself cheated and deceived, the applicant lodged the FIR, which was registered as Case Crime No. 32 of 2010, under Section 323, 328, 376 I.P.C. The I.O. recorded the statements of the complainant/ victim and her mother under Section 161 Cr.P.C. and after concluding the investigation submitted charge-sheet against O.P. No. 2 and his mother, Smt. Chaitali Ghosh, on 11.1.2011 under the aforesaid sections. 6. Learned Magistrate took cognizance on the charge-sheet and since the case was triable by the Sessions Court, it was committed to the Court of Sessions, where it was registered as S.T. No. 580 of 2011, State v. Shivalik Ghosh and another. During trial an application under Section 311 Cr.P.C. was filed by the applicant before the trial Court on 14.11.2013 with prayer to accept certain documents and to recall some witnesses to prove the documents so that those documents could be marked as exhibits, which according to applicant was very necessary for just and proper decision of the case. 7. However, the aforesaid application was rejected by the trial Court vide impugned order dated 18.7.2014, which was challenged by the applicant by means of Criminal Misc. Application under Section 482 No. 753 of 2015, wherein this Court issued notices to the opposite parties on 19.1.2015. Thereafter the applicant filed an application before the trial Court on 13.3.2015 alongwith a copy of the aforesaid order of this Court dated 19.1.2015 passed in Application under Section 482 No. 753 of 2015, praying to adjourn the further proceeding of the trial during pendency of Criminal Misc. Application under Section 482 No. 753 of 2015, but the learned trial Court did not entertain the application and proceeded with the trial fixing the date 26.3.2015 in the case. Application under Section 482 No. 753 of 2015, but the learned trial Court did not entertain the application and proceeded with the trial fixing the date 26.3.2015 in the case. On 26.3.2015, the case was adjourned on the request of learned counsel for the accused and 16.4.2015 was fixed. On 16.4.2015 the Court was vacant and the case was fixed for 28.4.2015. Again on 28.4.2015 the P.O. was on leave and the case was fixed for 14.5.2015. On 14.5.2015, the Court passed the order rejecting the prayer of the applicant to fix some long date in the case and to wait till the decision of Application under Section 482 No. 753 of 2015, pending in this Court. 8. Apprehending that the trial will be concluded and decided, without giving her an opportunity to bring on record certain important documents, the applicant, again knocked the doors of this Court by means of Application under Section 482 Cr.P.C. No. 15142 of 2015, praying to keep in abeyance, the further proceedings of the trial, till the disposal of her application. 9. In the counter-affidavit filed by O.P. No. 2, a preliminary objection has been raised that the applicant had earlier approached this Court by means of Criminal Misc. Application No. 45754 of 2014 challenging the order dated 18.7.2014, which was dismissed by this Court as not pressed vide order dated 13.11.2014 of this Court without any order granting liberty to the applicant to file another application, hence the instant application is not maintainable. Learned counsel for O.P. No. 2 has contended that the applicant has maliciously filed this application misleading the Court by deposing incorrect and false facts. The trial is now pending at the stage of hearing final arguments, however, the applicant is moving multiple applications in order to cause delay in its disposal. Learned counsel has submitted that no valid reasons have been assigned by the applicant as to why the documents intended to be marked as exhibits were not marked earlier? Learned counsel has contended that the power under Section 311 of Cr.P.C. is a discretionary power, given to the Court and the same has to be exercised for strong and valid reasons, and with great caution and circumspection. Learned counsel has contended that the power under Section 311 of Cr.P.C. is a discretionary power, given to the Court and the same has to be exercised for strong and valid reasons, and with great caution and circumspection. It is also contended that the present application is not maintainable as the same does not entail any reason as to how the witnesses mentioned in the application, are necessary to be examined for the just and proper adjudication of the present matter. Learned counsel for O.P. No. 2 has vehemently argued that the application under Section 311 Cr.P.C. moved by the applicant, at such belated stage, is liable to be dismissed as the prosecution has closed its evidence, moreover, when the documents intended to be marked as exhibits, were not even the part of the investigation. The applicant has not expressed willingness to summon any witness at the earlier stage and the present application is nothing but an afterthought and has been filed with oblique motive and purpose to fill up the lacuna and the same was liable to be dismissed and was rightly dismissed by the learned trial Court. Learned counsel has submitted that in view of aforesaid facts, no interference is required in the order impugned and the instant applications be dismissed. 10. Considered the submissions. 11. The record shows that vide order dated 28.5.2015, passed in Application under Section 482 Cr.P.C. No. 15142 of 2015, this Court had granted interim relief to the applicant by staying the further proceedings of the Sessions Trial. 12. A perusal of the order dated 18.7.2014, which has been impugned in the first Application under Section 482 No. 753 of 2015) shows that an application “93 Kha” was moved by the applicant under Section 311 Cr.P.C. with prayer to permit her to bring on record some medical papers so that she may justify the delay caused in lodging the FIR by her. Prayer was also made to summon some person from the concerned hospital to prove those medical papers. Apart from that, she had also prayed to bring on record the print outs of some emails, chatting, SMS and face book messages, exchanged between her and the accused, but the Court below rejected her application on the ground that as the prosecution has concluded its evidence, hence it was not justifiable to entertain the application moved by the victim at such belated stage. 13. It also transpires that on the same day, the learned trial Court also rejected another application “94-Kha” moved by the accused to bring on record the call history and SMS etc. exchanged between him and the prosecutrix, its being premature. 14. In a criminal trial, the delay in lodging the FIR, some time proves fatal to prosecution. Therefore, if the prosecutrix, in order to explain the delay, was trying to bring on record the medical papers of some hospitals, for the purpose of explaining the delay in lodging the FIR, the opportunity should not have been denied to her. 15. So far as the ground taken by the O.P. No. 2, that the application under Section 311 Cr.P.C. was moved at a belated stage, is concerned, I do not find much force in the aforesaid argument. The words used in Section 311 Cr.P.C., are “at any stage of any enquiry, trial or other proceedings” which clearly shows that an application under Section 311 Cr.P.C. can be filed at any stage of the trial, if the evidence appears to be essential for the just decision of the case. It is also to be kept in mind that in the typical adversary system of administration of criminal justice, the victim takes a back seat behind the stage due to the reason that prosecution is conducted by the State, it being custodian of public safety and public order. The status of victim or complainant is that of a witness only, the possibility cannot be ruled out that the Public Prosecutor, inadvertently conducting the trial, failed to produce relevant documents or witnesses. This state of affairs was considered by Committee for reform in Criminal Justice (Malimath Committee) at length and it made a series of recommendations to put the victim of crime back at the centre of Criminal proceedings and to participate in the trial including the right to provide evidence, to put questions to witnesses with the leave of the Court, to be informed of the status of investigation, to move Court to ensure proper investigation, to be heard on issues relating to bail and withdrawal of prosecution, to advance argument after the prosecutor has submitted his arguments, and to participate in settlements of compoundable offences. Although many of the aforesaid recommendations are yet to be clothed with legislative mandate, yet it indicates a tendency of our legal system to accord the victim or aggrieved a dominant role to play in a criminal trial, particularly in grave offences, who were hitherto placed at back foot. 16. The trial Courts should always adhere to the dictates of Supreme Court laid down in a catena of decisions that judges should not sit like a mute and silent spectator and should play a proactive role in the process of recording of evidence and should make use of the provisions of Section 311 Cr.P.C. and Section 165 Evidence Act, 1872, as and when needed, with a view to give a just decision in the case so that justice triumphs. 17. In so far as the argument led by O.P. No. 2 with regard to filling up the lacuna of prosecution case, is concerned, in the case of Rajendra Prasad v. Narcotic Cell, (1999)6 SCC 110 , the Apex Court pointed out the distinction between lacuna in the prosecution and a mistake or error inadvertently committed by the prosecution, 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 Cr.P.C or under Section 165 of the Evidence Act. According to Hon’ble Supreme Court : “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.” In Zahira Habibullah H. Sheikh and another v. State of Gujarat and others, (2004) 4 SCC 158 , the Apex Court held that “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, 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. In a decision rendered by the Apex Court in Rajaram Prasad Yadav v. State of Bihar and another, AIR 2013 SC 3081 , in paragraph 14, the law has been stated as under: 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. 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 by us earlier. 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 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. 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.” In Mohanlal Shamji Soni v. Union of India and another, AIR 1991 SC 1346 , the Apex Court examined the scope of Section 311 Cr.P.C., and held that “it is a cardinal rule of the law of evidence, that the best available evidence must be brought before the Court to prove a fact, or a point in issue. However, the Court is under an obligation to discharge its statutory functions, whether discretionary or obligatory, according to law and hence ensure that justice is done. The Court has a duty to determine the truth, and to render a just decision. The same is also the object of Section 311 Cr.P.C., wherein the Court may exercise its discretionary authority at any stage of the enquiry, trial or other proceedings, to summon any person as a witness though not yet summoned as a witness, or to recall or re-examine any person, though not yet summoned as a witness, who are expected to be able to throw light upon the matter in dispute, because if the judgments happen to be rendered on an inchoate, inconclusive and speculative presentation of facts, the ends of justice would be defeated.” 18. Having regard to the facts of the present case in wake of the law as laid down by the Apex Court, the Application under Section 482 Cr.P.C. No. 753 of 2015 deserves to be allowed and is hereby allowed. Having regard to the facts of the present case in wake of the law as laid down by the Apex Court, the Application under Section 482 Cr.P.C. No. 753 of 2015 deserves to be allowed and is hereby allowed. The impugned order dated 18.7.2014 passed by the Court below is set aside and the trial Court is directed to call the witnesses and admit the documents, which the applicant intends to file as evidence. The trial Court may also consider to take secondary evidence in case primary evidence is either not available or cannot be produced in the Court without causing undue delay in final disposal of the case due to unavoidable circumstances. Since the proceedings of the trial have been stayed vide interim order dated 28.5.2015 passed in Application under Section 482 Cr.P.C. No. 15142 of 2015 and the main objection raised by O.P. No. 2 against the application under Section 311 Cr.P.C., if it is being allowed, is that it will cause delay in disposal of trial, which is at concluding stage, the trial Court is further directed to conclude the trial in accordance with law expeditiously preferably within a period of six months from the date of production of a certified copy of this order. 19. The second Application under Section 482 Cr.P.C. No. 15142 of 2015 has now become infructuous due to the reason that the only prayer made in this application was to keep the proceedings of the sessions trial in abeyance till pendency of Application under Section 482 Cr.P.C. No. 753 of 2015. The Application under Section 482 Cr.P.C. No. 753 of 2015 has been allowed today, therefore, the Application under Section 482 No. 15142 of 2015 has now become infructuous and is accordingly dismissed as infructuous.