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2017 DIGILAW 2578 (RAJ)

Rakesh @ Praveen S/o Bhagwandas Bairagi v. Nirmla D/o Mangidas Bairagi

2017-11-24

SANDEEP MEHTA

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ORDER : 1. By way of this petition under Section 482 CrPC, the petitioners accused have approached this court for challenging the order 22.11.2013 passed by learned Sessions Judge, Chittorgarh in revision, whereby the revisional court dismissed the revision preferred by the petitioners against the order dated 31.10.2013 passed by learned Civil Judge (Junior Division), Chittorgarh in Criminal Case No.428/2005. The petitioners herein are facing trial in the court below for the offences under Sections 494 and 494/109 IPC. Specific defence of the petitioners was that Seeta, petitioner No.3, is the wife of one Jagdish and that she never married the petitioner No.1 Rakesh and thus, no offence of bigamy was committed. The first prosecution witness being respondent complainant Nirmala was examined by the trial court on 28.04.2012. On that very day, specific suggestion was given by the defence to this witness in cross-examination that Seeta’s husband is Jagdish S/o Kanadas. Similar suggestion was given to the witnesses Mangilal (P.W.2) examined on 02.06.2012 and Narayan Lal (P.W.4) examined on 01.12.2012. The accused Rakesh, who is deaf and dumb, upon being examined under Section 313 CrPC categorically denied that he had married Seeta. Three witnesses were examined in defence, wherein also a specific plea was taken that Seeta continued to be the legally wedded wife of Jagdish. After the defence evidence had been completed, the complainant moved an application under Section 311 CrPC, wherein she claimed that the defence taken by the accused in the statement under Section 313 CrPC that Seeta was wife of Jagdish was totally false and she desired to examine the said Jagdish by way of rebuttal evidence so as to prove that he had customarily divorced Seeta 20 years ago. The said application preferred by the complainant on 19.10.2013 was allowed by the trial court by the order dated 31.10.2013, which was affirmed by the revisional court on 22.11.2013. The instant misc. petition has been preferred for challenging these two orders. 2. Mr. Manish Pitaliya, learned counsel representing the petitioners accused, vehemently urged that the direction given by the trial court while accepting the application preferred by the respondent under Section 311 CrPC to summon and examine Jagdish as a prosecution witness virtually amounts to an act of subterfuging the defence of the accused. 2. Mr. Manish Pitaliya, learned counsel representing the petitioners accused, vehemently urged that the direction given by the trial court while accepting the application preferred by the respondent under Section 311 CrPC to summon and examine Jagdish as a prosecution witness virtually amounts to an act of subterfuging the defence of the accused. He contends that by no stretch of imagination can the prosecution be clothed with the right to lead evidence in rebuttal of the defence taken by the accused because such a course of action would virtually defeat the right of fair trial provided to every accused under the Constitution of India. He, thus, urges that the impugned orders are nothing short of gross abuse of process of court and should be quashed and set aside. 3. Per contra, Mr. Abhinav Jain, learned counsel representing the respondent complainant, relied upon the decision of Hon’ble Supreme Court in the case of Rajaram Prasad Yadav Vs. State of Bihar & Anr. reported in AIR 2013 SC 3081 and contended that the trial court as well as the revisional court have categorically held that recording of evidence of Jagdish is essential to arrive at the truth and for just and fair decision of the case. Thus, as per him, this court should not be persuaded to interfere in the discretion rightly exercised by the court below and implored the court to dismiss the instant misc. petition. 4. I have mulled upon the arguments advanced by learned counsel and gone through the impugned orders, the material placed on record of the petition and have given respectful and thoughtful consideration to the law as expounded by Hon’ble Supreme Court in the case of Rajaram Prasad Yadav (supra). 5. It is virtually an admitted position from record that the accused had from the day one, i.e. when the evidence of the complainant Nirmala was recorded at the trial, taken a specific defence that Seeta continued to be the legally wedded wife of Jagdish and that Rakesh had never married her. The prosecution, thus, was put on guard on that very day regarding the defence of the accused. If at all, the prosecution desired to challenge the said defence plea, it had an opportunity and window of almost one year when its evidence was still being recorded by the trial court. The prosecution, thus, was put on guard on that very day regarding the defence of the accused. If at all, the prosecution desired to challenge the said defence plea, it had an opportunity and window of almost one year when its evidence was still being recorded by the trial court. The last prosecution witness P.W.4 Narayan Lal was examined by the trial court on 01.12.2012 and the statement of the accused was recorded under Section 313 CrPC on 06.09.2013. No endeavour was made by the complainant during this prolonged period of one year and six months to summon and examine Jagdish as a prosecution witness. In the application preferred under Section 311 CrPC, the complainant averred that the accused had raised the plea of Jagdish being the legally married to Seeta in the statement under Section 313 CrPC and in the statement of defence witnesses, thus, the complainant should be allowed to rebut the said plea. Apparently the said assertion made in the application was factually incorrect because a defence to this effect had been raised by the accused as early as on 28.04.2012 by giving this suggestion to the complainant Nirmala, who was examined as prosecution witness No.1. 6. There cannot be quarrel with the principles enunciated by Hon’ble Supreme Court at para 23 in the judgment of Rajaram Prasad Yadav (supra), which are reproduced herein for the sake of ready reference. 23. From a conspectus consideration of the above decisions, while dealing with an application under Section 311 Cr.P.C. read along with Section 138 of the Evidence Act, we feel the following principles will have to be borne in mind by the Courts: (a) 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? (b) 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. (c) 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 reexamine any such person. (c) 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 reexamine any such person. (d) 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. (e) 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. (f) The wide discretionary power should be exercised judiciously and not arbitrarily. (g) 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. (h) 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. (i) 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. (j) 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. (k) 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 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. In that parity 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. (l) The additional evidence must not be received as a disguise or to change the nature of the case against any of the party. (m) 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. (n) 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.” 7. It is a well-settled principle of law that if the trial court is of the opinion that recording of evidence of a particular witness or recalling the witness for further examination is essential for just decision of the case, it has wide discretion to conduct such exercise. However, the observations made by Hon’ble Supreme Court at points No. (e), (f), (i), (j) and (k) referred to supra clearly put the present controversy at rest and this court has no hesitation in holding that there was no justification for the trial court to have permitted examination of the witness Jagdish in support of the complainant’s case. 8. Rather this court is of the firm opinion that the trial court exercised the discretion vested in it under Section 311 CrPC in an absolutely arbitrary and unfair manner. The discretion so vested in the trial court by the above provision cannot empower it so as to frustrate or defeat the specific defence raised by the accused by allowing the prosecution to rebut the defence evidence by allowing evidence to be led. The discretion so vested in the trial court by the above provision cannot empower it so as to frustrate or defeat the specific defence raised by the accused by allowing the prosecution to rebut the defence evidence by allowing evidence to be led. If the discretion is allowed to be exercised in this manner, the same would have to be termed as grossly arbitrary and defeating the concept of fair trial enshrined in the Code of Criminal Procedure and the Principles of Natural Justice and would have to be struck down. 9. In view of the discussion made hereinabove, I am of the firm opinion that the impugned orders are grossly bad in the eye of law and reflect gross abuse of process of law. Hence, the same cannot be sustained. 10. Resultantly, the instant misc. petition deserves to be and is allowed. The impugned orders dated 22.11.2013 passed by the Sessions Judge, Chittorgarh in Criminal Revision No.128/2013 and dated 31.10.2013 passed by the Civil Judge (Junior Division), Chittorgarh are quashed and struck down.