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Allahabad High Court · body

2017 DIGILAW 2648 (ALL)

ASHIQ @ MALLI v. STATE OF U. P.

2017-11-16

KARUNA NAND BAJPAYEE

body2017
JUDGMENT : Karuna Nand Bajpayee, J. 1. This application u/s 482 Cr.P.C. has been preferred on behalf of applicant seeking the quashing of impugned orders dated 05.10.2017 and 28.10.2017 passed by the Additional District and Sessions Judge, Court No.14, Allahabad in S.T. No.28 of 2012 (State vs. Ashiq @ Malli and others) u/s 302, 201 I.P.C., Police Station-George Town, District-Allahabad, whereby the court below has rejected the applications moved on behalf of applicant u/s 311 Cr.P.C. 2. Shri Bhuwan Raj, Advocate has filed counter affidavit today on behalf of opposite party no.2, which has been taken on record. 3. Heard Shri Deepak Dubey, learned counsel for the applicant. 4. This application moved on behalf of the applicant-accused has touched upon multiple facts and issues. But the applicant's counsel at the very outset of his submissions categorically clarifies that he wanted to confine his argument only to a very limited legal aspect of the matter. In view of this submission, the Court heard the counsel only on the aspect which the counsel has pressed forth before the Court and has only proceeded with hearing of the matter for the limited purpose which has been emphasized by the counsel i.e., only with regard to the application dated 10.10.2017 inasmuch as it related to the recall of the Investigating Officer for the purpose of proving some alleged contradictions or omissions which exists in the testimony of the P.W.-2 vis-a-vis his previous statement recorded under Section 161 of Cr.P.C. by the Investigating Officer. All other aspects of the matter have been not pressed by the counsel. 5. Submission of the counsel for the applicant is that the P.W.-2 namely Chandan Kumar, who was servant of Opposite party no.2, has been examined and cross-examined in the court. He was produced as a witness of fact and he made several statements in the court which were conspicuously not stated or narrated before the Investigating Officer at the time when the statement of P.W.-2 was recorded under Section 161 of Cr.P.C. Contention is that the omissions were of material importance and were amounting to contradiction and therefore, when P.W.-2 was cross-examined by the counsel, he was confronted with his previous statements given under Section 161 of Cr.P.C. in order to impeach his credit. An opportunity was given to P.W.-2 to explain the reason as to why those vital statements were not narrated before the Investigating Officer and opportunity to the witness was granted to say whatever he had to say with regard to those omissions. In response to such cross-examination, the witness did not say anything more than this that he had narrated and stated those facts before the Investigating Officer and he cannot tell the reason as to why the same was not recorded by the Investigating Officer. This was the patent reply of the witness with regard to all those alleged material omissions. Submission is that as per the requirement of Section 145 of Indian Evidence Act, if the previous statement containing the omission which amounted to contraction was to be proved by the Investigating Officer, it was mandatory that the attention of the witness had to be drawn to those parts of the previous statements which were to be used for the purpose of contradicting him. The requirement of Section 145 of Indian Evidence Act were duly complied with during the course of cross-examination by the counsel for defence. Later on when the Investigating Officer was produced as P.W.11, he was also cross-examined by the counsel and many relevant omissions and contradictions were got proved by the counsel. But it so happened that just out of inadvertent slip certain vital omissions and contradictions could not get proved during the course of cross-examination of the Investigating Officer. The case proceeded further and has now reached its final stage of argument. But as it was discovered by the applicant's counsel that certain contradictions have remained unproved and so it was found necessary to prove them. Therefore, an application dated 03.10.2017 to recall the Investigating Officer for the limited purpose of getting those omissions and contradictions proved by him in relation to the testimony of P.W.-1 and P.W.-2 both was moved. But this application did not find favour with the court and the same was rejected vide order dated 05.10.2017. Subsequent to the order dated 5.10.2017 passed by the trial court, one another application dated 10.10.2017 seeking the recall of Investigating Officer was moved on behalf of applicant, wherein specific portions of testimony of only one witness P.W.-2 was quoted in order to get such omissions and contradictions proved, which were related to his testimony alone. Subsequent to the order dated 5.10.2017 passed by the trial court, one another application dated 10.10.2017 seeking the recall of Investigating Officer was moved on behalf of applicant, wherein specific portions of testimony of only one witness P.W.-2 was quoted in order to get such omissions and contradictions proved, which were related to his testimony alone. Submission is that the subsequent application dated 10.10.2017 was specific and limited only to the quoted portions of the testimony of P.W.-2 alone. However, this subsequent application has also been rejected by the trial court vide order dated 28.10.2017. According to the counsel one of the reasons, which appears to have persuaded the court not to allow the application moved on behalf of the applicant seeking the recall of Investigating Officer for getting omissions and contradictions proved, is the direction given by Hon'ble Apex Court whereby the trial of the case is required to be concluded by the end of this month. According to the counsel, it was wrongly inferred by the trial court that the applicant was interested to somehow delay the conclusion of trial on the pretence of recalling the Investigating Officer. It was emphasized by the counsel that the Investigating Officer of the case is presently posted in district Allahabad itself where the trial is going on and the purpose of recalling him is not to enter into any lengthy cross-examination. The only purpose to recall him is just to put some formal questions to him with regard to the fact whether P.W.-2 examined on behalf of the prosecution had given particular statements to him or not. Counsel has drawn the attention of the Court to the application that was moved on behalf of the accused dated 10.10.2017 which contains the details of those omissions or contradictions and to which the attention of the P.W.-2 was specifically drawn by the counsel during the course of his cross-examination. Counsel has drawn the attention of the Court to the application that was moved on behalf of the accused dated 10.10.2017 which contains the details of those omissions or contradictions and to which the attention of the P.W.-2 was specifically drawn by the counsel during the course of his cross-examination. It was also submitted by the counsel that in fact, the applicant is prepared to give the list of those contradictions or omissions that exist in between the statement of the P.W.-2 given in the court and the statement that was given before the Investigating Officer under Section 161 of Cr.P.C. and if the prosecution verifies the same from the case diary and admits the fact of such omissions, then there is no need to recall the Investigating Officer and the applicant would not insist upon the same at all. Contention is that it is a question of mere legal formality which is needed to be performed so that the accused may have the right to argue before the court that many vital statements given in the court by the P.W.-2 stand discredited because they were never given on the earlier occasion when the witness had the opportunity to state them before the Investigating Officer. Submission is that the witness was confronted with his previous statements only in order to prove those contradictions and the present anomalous situation has arisen only out of a human slip of the counsel. It was argued that actually it is not only the right of the accused to make use of the contradictory statements of the witness and impeach his credit on that basis, it is also in the interest and in keeping with the fairness of the trial that the court should have fuller material and complete perspective of facts when adjudicating upon the credibility of the testimony of a particular witness. If the aforesaid contradictions go unproved despite the fact that they do exist on record it will be a travesty of justice according to the counsel and even the court shall be put to a disadvantageous position. Counsel has tried to show that the recall of this witness for the aforesaid limited purpose is essential in order to arrive at a just decision in the case. Counsel has tried to show that the recall of this witness for the aforesaid limited purpose is essential in order to arrive at a just decision in the case. According to the counsel, if the production of the witness or the recall of witness is essential to arrive at a just decision in the case then it is mandatory for the court to summon him for that purpose under Section 311 of Cr.P.C. Counsel has emphasized upon the language used in Section 311 of Cr.P.C. in which the two different words 'may' and 'shall' have been used. Argument is that if the production of a witness is essential to arrive at a just decision of the case then in such a situation the court must call or recall a witness. Exercise of judicial discretion in favour of summoning such witness is a mandatory requirement of the statute in such a situation. It was also submitted that as the Investigating Officer is posted in the same district where the trial is going on, the question of wastage of time and delay in trial as well as any possibility of non-adherence to the time limit fixed by Hon'ble Apex Court will not arise which otherwise could have happened, had the witness been posted at some distant place away from Allahabad. According to the counsel if the contradictions, which were duly put to the P.W.-2 in compliance of Section 145 of Indian Evidence Act, are allowed to remain unproved then this will very deleteriously prejudice the vested rights of the accused to defend himself adequately and will ultimately in turn may go to defeat the ends of justice. According to the counsel the facts and circumstances of the case are such that the power under Section 311 of Cr.P.C. must be exercised to recall the Investigating Officer for the limited purpose of proving the fact that certain statements given in the court by the P.W.-2 were never given before Investigating Officer, when he recorded the statement of P.W.-2 under Section 161 of Cr.P.C. The impugned orders dated 05.10.2017 and 28.10.2017 have been castigated by the counsel basically on the aforesaid grounds and reasoning as has been mentioned above. 6. Heard learned A.G.A. as well as Shri Bhuwan Raj, counsel appearing on behalf of the opposite party no. 2. 7. 6. Heard learned A.G.A. as well as Shri Bhuwan Raj, counsel appearing on behalf of the opposite party no. 2. 7. It has been submitted by the complainant counsel with vehemence that the case has already reached its final stage and the Investigating Officer was also cross-examined at length on behalf of the accused when he appeared in the court. If the defence counsel was not alert enough or competent enough to get the contradictions or omissions proved when the Investigating Officer was examined then the accused must suffer for that reason. Ultimately it is the wisdom or competence of the counsel which vitally affects the fate of his client. But the in-competency or lack of alertness of the counsel should not be allowed to become the reason to delay the hearing of the matter or to recall a witness for further cross-examination who has already been cross-examined. But during the course of argument neither learned complainant counsel nor learned A.G.A. has been able to dispute the fact that there is still sufficient time left before the outer limit for conclusion of the trial would expire. It has also not been disputed that the Investigating Officer is posted in the same district Allahabad where the trial is going on. Counsel for the complainant has tried to stress his arguments by pointing out the criminal antecedents of accused-applicant and his involvement in other heinous offences. However, the chief plank of entire submission of counsel for the complainant is that considering the outer limit fixed by the Apex court for conclusion of trial in question, the accused-applicant should not be given any opportunity to get the trial delayed. 8. At this stage of arguments, the counsel for accused-applicant has also in so many words given undertaking that if the Investigating Officer is recalled for the aforesaid limited purpose of proving the omissions or contradictions of P.W.2 only, no further opportunity will be sought on behalf of the accused-applicant to produce any defence evidence or any defence witness in the light of the statement that may be made by the Investigating Officer after being recalled. Applicant's counsel also concedes and gives undertaking that after further cross-examination on the aforesaid points the case may again be fixed for arguments straightaway. Applicant's counsel also concedes and gives undertaking that after further cross-examination on the aforesaid points the case may again be fixed for arguments straightaway. Counsel for accused-applicant has also in so many words confined his prayer for recalling the Investigating Officer only for purpose and with the limited object of proving the contradictions emanating from the testimony of P.W.-2 alone and with regard to no other witness. 9. Learned A.G.A. has adopted the submissions made by counsel for opposite party no.2. 10. Perused the record in the light of the submissions made by the rival sides. 11. It would be of use to keep in perspective the relevant part of Section 162 of Cr.P.C. and Section 145 of Indian Evidence Act both. Section 162 of Cr.P.C. reads as follows: "S. 162. Statements to police not to be signed: Use of statements in evidence. (1) No statement made by any person to a police officer in the course of an investigation under this Chapter, shall, if reduced to writing, be signed by the person making it; nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose, save as hereinafter provided, at any inquiry or trial in respect of any offence under investigation at the time when such statement was made: Provided that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, any part of his statement, if duly proved, may be used by the accused, and with the permission of the Court, by the prosecution, to contradict such witness in the manner provided by section 145 of the Indian Evidence Act, 1872 (1 of 1872); and when any part of such statement is so used, any part thereof may also be used in the re- examination of such witness, but for the purpose only of explaining any matter referred to in his cross- examination. (2) Nothing in this section shall be deemed to apply to any statement falling within the provisions of clause (1) of section 32 of the Indian Evidence Act, 1872 (1 of 1872), or to affect the provisions of section 27 of that Act. 12. (2) Nothing in this section shall be deemed to apply to any statement falling within the provisions of clause (1) of section 32 of the Indian Evidence Act, 1872 (1 of 1872), or to affect the provisions of section 27 of that Act. 12. Explanation.- An omission to state a fact or circumstance in the statement referred to in sub- section (1) may amount to contradiction if the same appears to be significant and otherwise relevant having regard to the context in which such omission occurs and whether any omission amounts to a contradiction in the particular context shall be a question of fact." 13. Section 145 of Indian Evidence Act is also reproduced herein below which reads as follows: "145. Cross-examination as to previous statements in writing.--A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him." 14. It is so very clear from the joint reading of the aforesaid statutes that the statement of a witness recorded by the Investigating Officer during the course of investigation can be used only for the limited purpose of contradicting such witness. But it is essential to comply with Section 145 of Indian Evidence Act before any such previous contradictory statement may be proved by the Investigating Officer. But it is essential to comply with Section 145 of Indian Evidence Act before any such previous contradictory statement may be proved by the Investigating Officer. If the Investigating Officer states before the court that a particular contradictory statement was made to him by a particular witness or that a particular statement was never made to him by the same witness, the contradictory statement given to the Investigating Officer or material omission amounting to contradiction, can be simply proved by asking the Investigating Officer whether that particular contradictory statement was made to him or not during the course of recording the statement of that particular witness under Section 161 of Cr.P.C. Similarly, any material omission amounting to contradiction can also be proved by asking the Investigating Officer whether that particular statement given by the witness in the court was also given before the Investigating Officer or not when that witness was examined under Section 161 of Cr.P.C. by the Investigating Officer. But neither contradiction nor omission amounting to contradiction can be proved straightaway by the Investigating Officer unless it can be shown that the attention of such witness of fact when examined in the court, was drawn to that particular contradiction or to that particular omission. On the other hand, if the attention of the witness has been duly drawn to a particular contradiction existing between his statement given in the court and his previous statement given before the Investigating Officer, the same exercise shall be of no avail, if later on when the Investigating Officer is produced in the court, he is not asked or questioned about the same contradiction. It is only the Investigating Officer who can prove the fact whether a particular contradictory statement was given to him or not, or whether a material omission amounting to contradiction is existing in the statement recorded under Section 161 of Cr.P.C. or not. Both things are necessary before the said contradiction in a given case may be made of any legal use. Both things are necessary before the said contradiction in a given case may be made of any legal use. If the counsel either fails to comply with the provisions of Section 145 of Indian Evidence Act and fails to draw the attention of the witness to his contradictory previous statement or if the counsel even after complying with the requirement of Section 145 of Indian Evidence Act fails to prove the existence of such omission or contradiction at the time when the Investigating Officer was cross-examined in the court, the cross-examination of the witnesses on the point will simply go in vain and the such contradiction will remain unproved. 15. After perusing the complete statement of the P.W.-2 given in the court which includes his examination-in-chief and cross-examination both, it is not difficult to see that certain statements made in the court were allegedly never made before the Investigating Officer and according to the counsel, they were material in nature and amounted to contradiction. It is apparent from the record that the attention of witness to such omissions was specifically drawn by the counsel and the requirement of Section 145 of Indian Evidence Act was duly complied with. But perusal of complete statement of P.W.-11 given in court reveals that when the Investigating Officer was examined, the existence of those omissions as have been specifically quoted in application dated 10.10.2017 with regard to the statement of P.W.-2 was not got proved by the counsel of defence and no question to Investigating Officer was put in that regard in that particular context. It is not difficult to see that the failure to prove those omissions which allegedly amounted to contradiction was obviously because of a slip of the counsel. If a particular witness earlier gave a contradictory statement or if a particular statement which was material in nature was not made on the previous occasion, it will be a relevant aspect to consider while adjudging the testimonial worth of that witness. Whether the omission was material in nature or not is a question to be gone into by the trial court. Whether a particular contradiction is material or insignificant is again to be seen by the trial court. Whether the omission was material in nature or not is a question to be gone into by the trial court. Whether a particular contradiction is material or insignificant is again to be seen by the trial court. There appears substance in the submissions made by the applicant's counsel that the accused should not be deprived of the right to prove that contradiction or omission which very much exists on record and which could not be got proved simply out of some oversight or inadvertence. It is not a case where the attention of the witness of fact, i.e. P.W.-2 in the present case, was never drawn to his contradictory statement. It is also not a case where for the first time at a belated stage, some contradiction has been detected and the accused persons are trying to play a second innings and want to cross-examine the witness of fact all over again. It is a case where the contradiction has already been put to the witness of fact and the same only remains to be proved by putting a formal question to the Investigating Officer whether that statement given in the court by the P.W.-2 was ever made before the Investigating Officer or not when P.W.-2 was initially examined by the Investigating Officer under Section 161 Cr.P.C. Putting those formal questions to the Investigating Officer is hardly going to take more than a few minutes time. This Court is well conscious about the direction given by Hon'ble Apex Court with regard to the desirability of conclusion of the trial within a fixed period. Had the Investigating Officer sought to be recalled been posted at some distant place far away from Allahabad, this Court might have preferred not to consider the prayer of the applicant favourably in view of the belated stage when this prayer has been made. But in the wake of conspicuous circumstances that the Investigating Officer is posted in the same district Allahabad where the trial is taking place, there does not appear to be any likelihood that his recalling may contribute to procrastination of the trial at all. The limited purpose for which the Investigating Officer has been sought to be recalled, is also very categorical and not vague as it reveals from bare perusal of application dated 10.10.2017. The limited purpose for which the Investigating Officer has been sought to be recalled, is also very categorical and not vague as it reveals from bare perusal of application dated 10.10.2017. If the accused is not allowed to prove the omissions or contradictions from the Investigating Officer with regard to which attention of the P.W.-2 has already been drawn, it may very deleteriously prejudice his defence and may impeach upon the fairness of the trial. In the facts and circumstances of the case the recall of the Investigating Officer for the limited purpose of proving the aforesaid contradictions or omissions of P.W.-2 appears to be essential in order to arrive at a just decision in the case and in the considered opinion of this Court the power under Section 311 of Cr.P.C. ought to have been exercised by the trial court in this regard. The fate of the case does not merely depend simply on the number of mistakes that may be committed by the counsels of rival sides and the role of the court is also not confined to the job of simply counting the errors committed by the counsels representing the rival sides. The concept of fair trial and the imperative need to arrive at a just decision of the case is much more than merely this. 16. In view of the aforesaid discussion, the impugned orders dated 05.10.2017 and 28.10.2017 stand quashed in order to meet the ends of justice. 17. The trial court is required to pass fresh orders on the application dated 10.10.2017 in the light of the observations made by this Court. The Investigating Officer will be required to be produced in the court for strictly limited purpose of cross-examination on the point and with the object of getting the contradictions or omissions proved, the details of which have been given in the application dated 10.10.2017 moved by the accused-applicant before the trial court in as much as they relate to P.W.2 alone. The accused shall not be permitted to cross-examine the Investigating Officer on any other aspect of the matter. It is also being observed that on the date of appearance of the Investigating Officer, the cross-examination in this regard shall be done on behalf of the accused-applicant without fail and no adjournment on any ground shall be granted to the accused-applicant for that purpose. It is also being observed that on the date of appearance of the Investigating Officer, the cross-examination in this regard shall be done on behalf of the accused-applicant without fail and no adjournment on any ground shall be granted to the accused-applicant for that purpose. If the accused does not avail the opportunity to cross-examine the Investigating Officer when he appears on the date, as may be fixed by the trial court, his evidence shall stand closed and no further opportunity shall be granted to the accused in that regard. The trial court is also required to summon the Investigating Officer at the earliest on any date within four days from today. The trial court shall also write to the S.S.P. concerned in order to ensure that the Investigating Officer is produced on the very first date fixed by the trial court in this regard. The copy of this order shall also be forwarded by the trial court to the S.S.P. concerned in order to procure his assistance in ensuring the production of the Investigating Officer within required time so that the trial may get concluded well within the prescribed time limit fixed by Hon'ble Apex Court. 18. The trial court is also directed to proceed with the trial on day to day basis, so as to comply in letter and spirit with the time limit fixed by the Hon'ble Apex Court for disposal of trial. 19. In view of the clear undertaking given on behalf of the accused-applicant during the course of argument, it is also being observed that after the further cross-examination of the Investigating Officer as directed herein above gets over, the trial court shall proceed with further hearing of the case just in the same manner as it was dong before and the accused shall not have any right to produce any further evidence on the pretence of any new evidence having been produced by the Investigating Officer as a result of his aforesaid further cross-examination. 20. Office to communicate the copy of this order to the trial court concerned as well as to the S.S.P., Allahabad by fastest mode available forthwith. 21. 20. Office to communicate the copy of this order to the trial court concerned as well as to the S.S.P., Allahabad by fastest mode available forthwith. 21. This Court also deems it necessary to observe that any observations made in this order are strictly confined for the purpose of disposing off this application and must not be construed to have any reflection upon the merits of the case or upon the reliability or otherwise of any witness. 22. This application stands allowed with aforesaid terms.