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J&K High Court · body

2016 DIGILAW 531 (JK)

State of J&K v. Mohinder Singh

2016-10-14

B.S.WALIA

body2016
JUDGMENT : B.S. WALIA, J. 1. Revision petition impugns order dated 18.01.2016 whereby prosecution evidence was closed after noticing that complainant was not present despite two clear opportunities having been granted vide order dated 28.11.2015 to lead evidence by producing the complainant in Court. Learned counsel contended that once an application had been moved under Section 540 Cr.P.C. and the Court was of the view that the witness was a material witness and evidence of such witness was essential to the just decision of the case, then it was for the Court to mandatorily summon and examine such witness. 2. Section 540 Cr.P.C. is reproduced hereunder:- "540. 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 essential to the just decision of the case." 3. That it would be relevant to take note that challan in the instant case was filed on 10.03.2009 while summoning of the witnesses commenced on 11.08.2009. However, on noticing that despite various directions and opportunities, the complainant was not appearing in the witness box and report had been received that the complainant had gone out in connection with his studies, State was granted liberty on 04.09.2015 to seek Court assistance if required for production of the complainant in the witness box on the next date. 4. After noticing that the prosecution had failed to produce the complainant in the witness box despite clear directions from the Court dated 04.09.2015 as also that some more time was sought by the Public Prosecutor to do the needful, one more opportunity was granted to the prosecution in the interest of justice to produce the complainant in the witness box on its own, failing which it was ordered that the right of the prosecution to produce the complainant would stand closed. Opportunity was also granted to the Public Prosecutor to produce any other witness in the Court as well and the matter was directed to be taken up for hearing on 31.10.2015. On the next date i.e. 31.10.2015, prosecution examined PW-14 i.e. Investigating Officer Devinder Singh. Opportunity was also granted to the Public Prosecutor to produce any other witness in the Court as well and the matter was directed to be taken up for hearing on 31.10.2015. On the next date i.e. 31.10.2015, prosecution examined PW-14 i.e. Investigating Officer Devinder Singh. However, the complainant was again not produced. In the circumstances, learned Trial Court while taking note of its previous order, closed prosecution evidence. However, the learned trial Court also noticed an application filed by the Public Prosecutor under Section 540 Cr.P.C. for examining the complainant. After handing over the copy of the same to the learned counsel for the accused who sought time to file objections, the matter was adjourned to 14.11.2015. A perusal of the application u/s. 540 Cr. P.C, dated 31.10.2015 reveals the claim therein that the evidence of the complainant was essential for a just adjudication of the case, therefore, complainant be summoned through Court. Learned Trial Court vide order dated 28.11.2015 allowed the aforementioned application. However, it was Investigating Officer who was directed to take all steps to summon/produce the complainant and examine him, for which two clear opportunities were granted to the prosecution. The matter was thereupon adjourned to 18.12.2015. 5. No witness was produced by the prosecution on 18.12.2015 or for that matter on 18.01.2016 whereupon while taking note of the fact that vide order dated 28.11.2015 two clear opportunities had been granted to the prosecution to lead evidence and produce the complainant in the Court, closure of prosecution evidence was ordered. Thereafter, statement of the accused was recorded under Section 342 Cr.P.C. on 05.03.2016. On 02.04.2016, defence evidence was closed and vide order dated 23.04.2016 the case was fixed for arguments. 6. That in the meantime i.e. before recording of the statement of the accused, Revision petition was filed on 02.03.2016. While giving background in Paragraph No. 3 of the revision petition, of the learned Trial Court having granted two opportunities on an application under Section 540 Cr. 6. That in the meantime i.e. before recording of the statement of the accused, Revision petition was filed on 02.03.2016. While giving background in Paragraph No. 3 of the revision petition, of the learned Trial Court having granted two opportunities on an application under Section 540 Cr. P.C, it is pleaded that the learned Trial Court closed the evidence vide order dated 18.01.2016 while in Paragraph No. 4 of the revision petition, it is mentioned that the right of the prosecution had been closed contrary to the facts and law since the statement of the complainant namely Asif Azad was absolutely necessary in support of the prosecution evidence, that too, in a case which pertained to corruption, therefore, it was essential to allow the petitioner to record the statement of the complainant to substantiate the criminality. In Paragraph No. 6, it has been mentioned that the learned Trial Court brushed aside the arguments projected by the prosecution regarding the reasons for non production of prosecution witnesses. 7. Learned counsel laid emphasis on the fact that in terms of Section 540 Cr. P.C, it was the prerogative of the Court at any stage of the enquiry, trial or proceedings to summon and examine or recall and re-examine any witness if the evidence of such witness appeared to be essential for a just decision of the case. Learned counsel contended that an application had been moved under Section 540 Cr.P.C. after the closure of the evidence on 31.10.2015 requesting for the assistance of the Court to summon the complainant in the context of the background as noticed by the learned Trial Court in its order dated 04.09.2015 as the complainant was not readily available on account of his having gone out for studies and that although the application was allowed, it was the investigating officer who was enjoined upon to ensure the presence of the complainant. However, since presence of the complainant could not be ensured despite best efforts, the learned Trial Court instead of closing the evidence of the prosecution ought to have taken steps as per law to secure the presence of the Complainant since it had formed the opinion that the evidence of the complainant was essential for the just adjudication of the case, that to, in a case involving corruption. 8. 8. Per Contra, learned counsel for the respondent has contended that in terms of Section 251(A) (7) & (9) & 271 of the Cr. P.C., it is open to the prosecution to seek attendance of any witness by moving an application in a trial before the Court of Sessions but the said right is not available in a warrant case which is the position in the instant case. Learned counsel further contends that in the absence of challenge to the order of the learned Trial Court dated 28.11.2015 it was not open to the State to challenge order dated 18.01.2016 closing prosecution evidence. 9. Mr. Iqbal, learned State counsel on the other hand relied upon the judgment of this Court reported as 2012 (3) JKJ 493 [HC] in case titled as Ankush Pandoh & Ors. v. State & Ors. to contend that the second part of Section 540 Cr.P.C. does not allow for any discretion but binds and compels the Court to take any of the steps contemplated therein if the fresh evidence to be obtained is essential for the just decision of the case. Relevant extract of the judgment is reproduced hereunder:- "11. Section 540 Cr.P.C. (State Code) corresponding to Section 311 Cr.P.C. (Central Code) is in two parts. The first part deals with the discretionary power of the Court, whereas the second part imposes upon the Court an obligation of summoning or recalling and re-examining any witness. So far as the first part is concerned, the Court can use its discretion at any stage during the trial till the judgment is pronounced, whereas according to the second part, the need of recalling or summoning the witness would arise when the Court feels the evidence of a particular witness is essential to the just decision of the case. In this context, it would be profitable to reproduce Para Nos. 9 & 16 of the Supreme Court Judgment handed down in case Mohan Lal Shamji Soni v. Union of India & Anr. reported as 1991 Supp (1) SCC 271:- '9. The very usage of the words such as 'any Court', 'at any stage', or 'of any enquiry, trial or other proceedings', 'any person' and 'any such person' clearly spells out that this section is expressed in the widest possible terms and do not limit the discretion of the Court in any way. reported as 1991 Supp (1) SCC 271:- '9. The very usage of the words such as 'any Court', 'at any stage', or 'of any enquiry, trial or other proceedings', 'any person' and 'any such person' clearly spells out that this section is expressed in the widest possible terms and do not limit the discretion of the Court in any way. However, the very width requires a corresponding caution that the discretionary power should be invoked as the exigencies of justice require and exercised judicially with circumspection and consistently with the provisions of the Code. The second part of the section does not allow for any discretion but it binds and compels the Court to take any of the aforementioned two steps if the fresh evidence to be obtained is essential to the just decision of the case. 16. The second part of Section 540 as pointed out albeit imposes upon the Court an obligation of summoning or recalling and re-examining any witness and the only condition prescribed is that the evidence sought to be obtained must be essential to the just decision of the case. When any part to the proceedings points out the desirability of some evidence being taken, then the Court has to exercise its power under this provision-either discretionary or mandatory-depending on the facts and circumstances of each case, having in view that the most paramount principle underlying this provision is to discover or to obtain proper proof of relevant facts in order to meet the requirements of justice. In this connection, we would like to quote with approval the following views of Lumpkin, J. in Epps v. S., 19 Ga 118 (Am), which reads thus: "it is not only the right but the duty of the presiding judge to call the attention of the witness to it, whether it makes for or against the prosecution; his aim being neither to punish the innocent nor screen the guilty, but to administer the law correctly Counsel seek only for their client's success; but the judge must watch that justice triumphs".' 12. The crux of the ratio of the aforesaid judgment is that only the test for exercising the jurisdiction under Section 540 Cr. P.C., is the exigency of the situation and fair play. The crux of the ratio of the aforesaid judgment is that only the test for exercising the jurisdiction under Section 540 Cr. P.C., is the exigency of the situation and fair play. Legally, there is no limitation on the power of the Court arising from the stage to which the trial may have reached for examination of a particular witness under this section, but the note of caution is that the examination of a particular witness should be for just decision of the case." 10. Learned counsel for the petitioner also refers to the decision of the Hon'ble Supreme Court in case titled as Mohanlal Shamji Soni v. Union of India & Anr. i.e. Criminal Appeal Nos. 4 & 5 of 1979, decided on 22.02.1991. Paragraph Nos. 7 & 8 of the judgment are reproduced hereunder:- "7. Section 540 was found in Chapter XLVI of the old Code of 1898 under the heading "Miscellaneous". But the present corresponding Sections 311 of the new Code is found among other Sections in Chapter XXIV under the heading 'General Provisions as to Enquiries and Trials'. Section 311 is an almost verbatim reproduction of Section 540 of the old Code except for the insertion of the words 'to be' before the word 'essential' occurring in the old Section. This section is manifestly in two parts. Whereas the word 'used' in the first part is 'may' the word used in the second part is 'shall'. In consequence, the first part which is permissive gives purely discretionary authority to the Criminal Code and enables it 'at any stage of enquiry' trial or other proceedings' under the Code to act in one of the three ways, namely, (1) to summon any person as a witness or (2) to examine any person in attendance, though not summoned as a witness, or (3) to recall and re-examine any person already examined. 8. The second part which is mandatory imposes an obligation on the Court- (1) to summon and examine, or (2) to recall and re-examine any such person if his evidence appears to be essential to the just decision of the case." 11. Learned counsel for the petitioner also refers to Paragraph Nos. 6 & 7 of the decision of this Court in case titled as 2010 (4) JKJ 540 [HC] Sham Lal & Ors. v. State reported as 2003 KLJ 80. Learned counsel for the petitioner also refers to Paragraph Nos. 6 & 7 of the decision of this Court in case titled as 2010 (4) JKJ 540 [HC] Sham Lal & Ors. v. State reported as 2003 KLJ 80. Relevant extracts of the judgment are reproduced hereunder: "6. Indubitably, the power to summon any person as witness or to trial and re-examine him, can be exercised at any stage of the proceedings, provided the examination is essential for just decision of the case. Opportunity, however, should be given to other party, whenever a new evidence is admitted. It is not disputed that the evidence of Chatter Pal and Shiv Ram recorded during the trial disclosed that Naresh Kumar, Garo Devi and Tinkoo Kumar children of Soam Devi and accused Rashpal have seen the occurrence and were present there at the relevant time. In many instances it happens that new light is thrown on the case by the witnesses, but it becomes desirable, in the interest of justice when their names figured as eye witnesses of the occurrence in the evidence of the witnesses examined by the prosecution during trial, where some material witnesses was not examined during investigation and their evidence are found essential for the just decision of the case, the court can summon those witnesses even on its motion in exercise of its discretion under Section 540 Code of Criminal Procedure, Svt. 1989 (1933 A.D.) Object of Section 540 Code of Criminal Procedure, Svt. 1989 (1933 A.D.) is obviously to enable the court to arrive at the truth by summoning and examining the witnesses, who can give relevant evidence irrespective of the fact whether a particular party has summoned them or not. Section 540 Code of Criminal Procedure, Svt. 1989 (1933 A.D.) confers a wide discretion on the court to act as the exigencies of justice require. Mere delay as bounced by the petitioner's Advocate, Mr. Kaw, is no ground for refusing exercise of power under section 540 Code of Criminal Procedure, Svt. 1989 (1933 A.D.), if it is essential to the just decision of the case. Where the court is of the opinion that the evidence of certain witnesses are essential to the just decision of the case, it is bound to summon them. However, this power has to be exercised sparingly only when ends of justice so demand. 1989 (1933 A.D.), if it is essential to the just decision of the case. Where the court is of the opinion that the evidence of certain witnesses are essential to the just decision of the case, it is bound to summon them. However, this power has to be exercised sparingly only when ends of justice so demand. The higher the power, the more careful and circumspect should be its exercise. 7. It therefore, follows that the court when found that the evidence of the witnesses is essential for the just decision of the case, this evidence need not be shut out merely on the ground of delay or laches on part of the prosecution agency or investigating agency. There does not appear in my opinion, any infirmity much less legal infirmity, which calls for interference in this revision." 12. Per contra, learned counsel for the respondent refers to Paragraph Nos. 6 & 8 of the decision of this Court in case titled Nain Singh v. Nain Slush & Ors. reported as 1991 (3) R.C.R. (Criminal) 330. Relevant extracts of the judgment are reproduced hereunder: "6. The learned counsel for the respondents argued that there was no Rule or law, which could be said to be casting any such obligation on the trial court. On the contrary, the provisions of Section 271 Cr.P.C. required an application to be made by the prosecution in the event the assistance of the court was required for summoning of the witnesses. He also submitted that no grievance was expressed by the prosecution or for that matter complainant/petitioner when last opportunity for adducing witnesses was granted by the trial court on May 3, 1990 and no application or request was made to the court seeking its assistance for procuring the attendance of the witnesses even on June 2, 1990 when the impugned order came to be passed. The learned counsel pointed out that if the plea of the petitioner was entertained, it would act a dangerous precedent putting a premium of the prosecution leading to frivolous criminal matters dragged by for years causing grave prejudice to the accused who are presumed to be innocent till proved guilty. He also challenged the locus of the petitioner to agitate the matter when the case had proceeded on police report and the State had stepped into the shoes of the complainant. He also challenged the locus of the petitioner to agitate the matter when the case had proceeded on police report and the State had stepped into the shoes of the complainant. In this regard he placed reliance on AIR 1966 SC 911 at para 9. 7.................. 8. I find no force in the contentions raised by the learned counsel for the petitioner for a variety of reasons. Suffice it to say that there is nothing in any Rule or law which caste any obligation on the trial court to procure the attendance of the witnesses in the absence of the party concerned seeking assistance of the court in this regard. The provisions of Section 271 of the Code of Criminal Procedure are manifestly clear on the point. The relevant section reads as under:- "If the accused refuses to plead, or does not plead or claims to be tried or is not convicted under Section 270, the Judge shall fix a date for the examination of the witnesses and may on the application of the prosecution issue any process for compelling the attendance of any witness or the production of any document or other thing." By any norms of interpretation, the provisions extracted herein above, do require an application to be made by the prosecution in the event of compelling the attendance of any witness. As already pointed out herein-above, there is nothing on record to show that any such application was made by the prosecution, least of all by the complainant/petitioner. As regards the Rules for Guidance of Subordinate Court, I do not find any Rule laying down the preposition that it is obligatory on the part of the trial court to compel the attendance of the witnesses in all events and circumstances. Even if there were any such provision in these Rules, the same could not have any overriding effect on the provisions of Section 271 of the Code of Criminal Procedure. Therefore, this contention appears to be fallacious on the face of it." 13. Learned counsel contends that in the instant case, the application seeking assistance of the Court for summoning of the complainant was not moved after 28.11.2015 whereby two opportunities had been granted to the prosecution. Therefore, this contention appears to be fallacious on the face of it." 13. Learned counsel contends that in the instant case, the application seeking assistance of the Court for summoning of the complainant was not moved after 28.11.2015 whereby two opportunities had been granted to the prosecution. In other words, no assistance of the Court was sought for compelling the appearance of the complainant by giving reasons explaining the inability of the prosecution to produce the complainant in terms of the order of the Court dated 28.11.2015 or for that matter in terms of the order of the Court dated 04.09.2015 whereby it had been categorically observed that the prosecution was at liberty to seek the assistance of the Court in the eventuality of inability of the prosecution to produce the complainant. 14. That a perusal of order dated 04.09.2015 produced by learned counsel for the respondents reveals that while taking note of non production of the complainant in the witness box despite various directions and opportunities, prosecution was directed to produce the complainant in the witness box on the next date while granting liberty to the prosecution to take the assistance of the Court if required. Obviously, the learned trial court realising the importance of the evidence of the complainant had been granting opportunities and issuing directions for the production of the complainant. Thereafter on 04.10.2015 on taking note of non production of complainant in the witness box despite a number of opportunities having been granted to the prosecution to produce the complainant, the learned trial court, in the interest of justice granted one more opportunity to the prosecution to produce the complainant while observing that failing production of the complainant, the right to produce the complainant would stand closed. Thereafter on 31.10.2015 while taking note of the non presence of complainant, prosecution evidence was closed but notice was issued for 14.11.2015 on the application submitted u/s. 540 Cr.P.C. for summoning the complainant. Eventually orders were passed on the same on 28.11.2015 allowing the application by observing as under : "Main question is whether the witness is essential for the just decision of the case and further if he can be summoned after closure of evidence of prosecution on direction of this court. Eventually orders were passed on the same on 28.11.2015 allowing the application by observing as under : "Main question is whether the witness is essential for the just decision of the case and further if he can be summoned after closure of evidence of prosecution on direction of this court. It is settled law that under Section 540 J&K Cr.P.C. any material witness which may help the court to arrive at the just decision of the case, can be summoned. Perusal of the section reveals that a witness can be summoned and examined at any stage if it's evidence appears to be essential to just decision of the case. In the present case in hand, the witness purportedly to be summoned Asif Azad is admittedly complainant of the case and his name figures in the list of witness attached to the challan. Summoning and examining complainant cannot be in the given facts and circumstances, be filling up the lacunas, on part of prosecution. The second aspect relating to purely question of law is whether court can exercise the power under Section 540 Cr.P.C. to summon and examine a witness after the closure of prosecution evidence vide order dated 31.10.2015 of this court. In my considered opinion there is no bar to exercise such par as to summon witness and examine even after the order of closure of evidence. The language of Section 540 itself is clear and having wide amplitude to summon any person as witness by any court at any stage. The provision confers vide discretion as the court to act as per the exigencies in order to complete justice. The use of words "any court" and "at any stage" clearly indicates the intention of the legislature regarding the powers of the court regarding summoning any person. The only test which is required is that the court should be of the opinion that summoning and examining the witness should be for just decision of the case, In this regard, I am satisfied in my opinion by the law laid down in the 2003 (1) JKJ 589 [HC]. Hon'ble Supreme Court in case reported in AIR 2002 SC 270 , has exercise such par to summon important witnesses after the closure of prosecution evidence and has negated the plea that material witnesses cannot be summoned after the closure of prosecution evidence. Hon'ble Supreme Court in case reported in AIR 2002 SC 270 , has exercise such par to summon important witnesses after the closure of prosecution evidence and has negated the plea that material witnesses cannot be summoned after the closure of prosecution evidence. Keeping in view the given facts and circumstances of the case coupled with the fact that the witness to be summoned is complainant of the case. The present application is allowed to summon and examine PW-10 at their own. I.O. is directed to remain present in the court in the light of dictum of Hon'ble Supreme Court reported in AIR 2002 SC 270 . I.O. shall take all steps to summon/produce the complainant and examine him for which to clear opportunities are being granted to the prosecution. Let the file come up on 18.12.2015" 15. That it is settled law that the first part of Section 540 Cr.P.C. confers a vast discretion on any Criminal Court at any stage of the trial to summon any person as a witness. The powers under Section 540 are not hedged in by the provisions of Section 251 or 271 of the Cr.P.C. However the same is subject to the second part of Section 540 Cr.P.C. which is mandatory and casts an obligation on the Court to summon and examine any person as a witness whose evidence appears to be essential to the just decision of the case. However, opportunity, is mandatorily required to be given to the other party, whenever new evidence is admitted. A perusal of the order of the learned trial Court dated 28th November 2015 reveals beyond an iota of doubt the learned trial Court's conclusion for the reasons recorded therein and as have been referred to above that the evidence of the complainant was essential for a just adjudication of the case. Once aforesaid conclusion had been arrived at by the learned trial Court, then it was incumbent for the learned trial Court to have ensured the presence of the Complainant, if necessary by taking recourse to the provisions of Chapter VI of the J&K Criminal Procedure Code and not transferring its aforesaid responsibility on the prosecution. Once aforesaid conclusion had been arrived at by the learned trial Court, then it was incumbent for the learned trial Court to have ensured the presence of the Complainant, if necessary by taking recourse to the provisions of Chapter VI of the J&K Criminal Procedure Code and not transferring its aforesaid responsibility on the prosecution. In Maria Margarida Sequeira Fernandes v. Erasmo Jack de Sequeira, (2012) 5 SCC 370 , the Hon'ble Supreme Court while referring to its observations in its earlier decision in Ritesh Tewari v. State of U.P. observed as under : "37.....Every trial is voyage of discovery in which truth is the quest." (emphasis in original) 16. The learned trial Court having failed to exercise the jurisdiction vested in it in terms of Section 540 read with Chapter VI of the J&K Criminal Procedure Code, its order closing prosecution evidence is unsustainable. Accordingly, the same is set aside. Learned trial Court is directed to ensure presence of the Complainant by taking steps in respect thereto in accordance with the provisions of Chapter VI of the J&K Criminal Procedure Code and if the circumstances so warrant, even by taking recourse to Section 90 of the Cr.P.C. However, one attempt be made to summon the Complainant in the ordinary manner before taking recourse to the process under Section 90 of the J&K Cr.P.C. to secure the presence of the Complainant. However, in keeping with the principles of Natural Justice, an opportunity will be provided by the learned trial Court to the accused pursuant to recording of evidence of the Complainant. 17. Before parting, it is deemed appropriate to notice that the prosecution appears to have dragged its feet in taking appropriate steps to secure the presence of the Complainant which according to it, is its star witness. In view thereof, the Revision petition is allowed in the aforementioned terms subject to payment of Rs. 10,000/- (Rs. Ten thousand only) as costs to be deposited in the Legal Aid Fund. Learned trial Court to ensure speedy conclusion of the trial after affording appropriate opportunity to the parties. Revision petition allowed along with connected MP in the aforementioned terms.