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2018 DIGILAW 2192 (HP)

Jitender Kumar v. State Of Himachal Pradesh

2018-12-11

SANDEEP SHARMA

body2018
JUDGMENT Sandeep Sharma, J. - Being aggrieved and dis-satisfied with order(s) dated 24.9.2016, passed by the learned Special Judge (Forest), Shimla, in Case No. 36-S/7 of 2012, 37-S/7 of 2012 and 38-S/7 of 2012, titled "State of H.P. v. Jitender Kumar and Ors.", whereby application(s) filed under Section 311 of Cr.PC., having been filed by the respondent-State, came to be allowed, petitioner(s)- accused (hereinafter referred to as "the accused") has/have approached this Court in the instant proceedings filed under Section 397 Cr.PC, to set-aside the impugned order. 2. Facts, shorn of unnecessary details are that FIR against the accused was lodged on 8.12.2008, under Sections 409, 120B and 201 of IPC and 13 (1) (C), punishable under Section 13(2) of PC Act 1988, at PS SV&ACB Shimla, whereby three challans were put in before the learned District and Sessions Judge, Shimla, in the year, 2012, as case No. 36-S/7 of 2012, 37-S/7 of 2012 and 38-S/7 of 2012 and all the three cases/challans are being tried together. During the pendency of the aforesaid trial, prosecution filed application(s) under Section 311 Cr.PC., praying therein for summoning of witnesses whose names could not be mentioned as the witnesses at the time of filing of charge sheet (Annexure P-1). Learned court below vide impugned order dated 24.9.2016, allowed the aforesaid application and permitted the prosecution/State to examine four witnesses as named in para-2 of the application. In the aforesaid background, accused has approached this Court in the instant proceedings. 3. Shri Dalip K. Sharma, learned counsel for the petitioner vehemently argued that impugned order dated 24.9.2016, is not sustainable in the eye of law because same is not based upon proper appreciation of facts as well as law. He further contended that application under Section 311 Cr.PC., came to be filed at a belated stage and as such, same could not be entertained by the court below. However, this Court having carefully perused averments contained in the application vis--vis reasoning recorded by the court below while passing the impugned order, is not persuaded to agree with Mr. Dalip, learned counsel for the petitioner(s), for the reason that some of prosecution witnesses are yet to be examined. As per record, 20 prosecution witnesses have been examined and yet a number of prosecution witnesses are to be examined. Dalip, learned counsel for the petitioner(s), for the reason that some of prosecution witnesses are yet to be examined. As per record, 20 prosecution witnesses have been examined and yet a number of prosecution witnesses are to be examined. Otherwise also, record reveals that by way of application, prosecution/State prayed that it be permitted to examine S/Sh. Vakila Ram, AAO, R.K. Thakur, S.O., Nar Singh Chahan (Sr. Auditor) AG HP Shimla and Jagdish Thakur, the District Treasury Officer, Shimla, because their statements may be relevant and crucial for proving the audit report, which otherwise stands placed on record with the challan. 4. Averments contained in the application suggest that audit report though was annexed with the challan, but inadvertently, person, who had signed the same could not be cited as prosecution witness. Mr. Shiv Darshan (Sr. Auditor) from the AG office, Shimla, while deposing before the court below, explained that audit was conducted by an audit party consisting of S/Sh. Vakila Ram, AAO, R.K. Thakur, S.O. and Nar Singh Chauhan (Sr. Auditor) AG HP Shimla and he simply signed the audit report in an official routine, whereas credit certificates were signed by the District Treasury Officer, Shimla. It is also not in dispute that such certificates have been attached to the challan. Though in the case at hand, prosecution has examined Sh. Shiv Darshan (Sr. Auditor) for proving the audit report, but inadvertently, failed to cite persons named by him in his examination-in-chief as prosecution witnesses at the time of submitting the charge sheet and as such, court rightly arrived at a conclusion that examination of these material witnesses is necessary for just and proper decision o the case. 5. Under Section 311 Cr.PC, court enjoys vast powers to summon, re-examine or recall the witnesses at any stage of proceedings, provided that same is necessary for proper adjudication of the case. Hon''ble Apex Court as well as this Court in catena of judgments have held that while exercising power under Section 311 Cr.PC., paramount consideration of the Court is to do justice to the case and court can examine the witnesses at any stage, even if, same results in filling up of lacuna or loopholes. Hon''ble Apex Court as well as this Court in catena of judgments have held that while exercising power under Section 311 Cr.PC., paramount consideration of the Court is to do justice to the case and court can examine the witnesses at any stage, even if, same results in filling up of lacuna or loopholes. Reliance, in this regard, is placed upon the judgments rendered by this Court in Cr.MMO No. 209 of 2017, titled Sardar Singh v. State of HP and Cr.R No. 313 of 2017 titled Sunder Lal v. Urmila Thakur dated 16.3.2018. In the aforesaid judgments, it has been categorically held that Section 311 Cr.PC., casts a duty upon the court to summon, re-examine or recall a witness at any stage, if his/her evidence appears to be essential for just decision of the case. No doubt, such power cannot be exercised by the court to permit the applicant to fill up the lacuna, but as has been observed herein above, paramount consideration of the Court while exercising power under Section 311 Cr.PC., is to do justice to the case and at any stage, court can examine witnesses even if same results in filling up of lacuna or loopholes. 6. Very object of Section 311 Cr.PC., is to bring on record evidence not only from the point of view of the accused and prosecution, but also from the point of view of the orderly society. Otherwise also, it is well established principle of criminal jurisprudence that discovery, vindication and establishment of truth are main purposes of underlying object of courts of justice. It is also well settled that wider the power, greater the responsibility upon the Court, which exercises such power and exercise of such power cannot be untrammeled and arbitrary, rather same must be guided by object of arriving at a just decision of the case. It is also well settled that wider the power, greater the responsibility upon the Court, which exercises such power and exercise of such power cannot be untrammeled and arbitrary, rather same must be guided by object of arriving at a just decision of the case. Close scrutiny of aforesaid provision of law further suggests that Section 311 has two parts ; first part reserves a right to the parties to move an appropriate application for re-examination of a witness at any stage; but definitely the second part is mandatory that casts duty upon the court to re-examine or recall or summon the witness at any stage, if his/her evidence appears to be essential for the just decision of the case because underlying object of aforesaid provision of law is to ensure that there is no failure of justice on account of mistake on the part either of the parties in bringing valuable piece of evidence or leaving an ambiguity in the statements of witnesses examined from either side. 7. Hon''Ble Apex Court in Zahira Habibullah Sheikh (5) and another vs. State of Gujarat and others , (2006) 3 SCC 374 has held as under:- "27. The object underlying Section 311 of the Code is that there may not be failure of justice on account of mistake of either party in bringing the valuable evidence on record or leaving ambiguity in the statements of the witnesses examined from either side. The determinative factor is whether it is essential to the just decision of the case. The section is not limited only for the benefit of the accused, and it will not be an improper exercise of the powers of the Court to summon a witness under the Section merely because the evidence supports the case for the prosecution and not that of the accused. The section is a general section which applies to all proceedings, enquiries and trials under the Code and empowers Magistrate to issue summons to any witness at any stage of such proceedings, trial or enquiry. In Section 311 the significant expression that occurs is "at any stage of inquiry or trial or other proceeding under this Code". The section is a general section which applies to all proceedings, enquiries and trials under the Code and empowers Magistrate to issue summons to any witness at any stage of such proceedings, trial or enquiry. In Section 311 the significant expression that occurs is "at any stage of inquiry or trial or other proceeding under this Code". It is, however, to be borne in mind that whereas the section confers a very wide power on the Court on summoning witnesses, the discretion conferred is to be exercised judiciously, as the wider the power the greater is the necessity for application of judicial mind. 28. As indicated above, the Section is wholly discretionary. The second part of it imposes upon the Magistrate an obligation: it is, that the Court shall summon and examine all persons whose evidence appears to be essential to the just decision of the case. It is a cardinal rule in the law of evidence that the best available evidence should be brought before the Court. Sections 60, 64 and 91 of the Indian Evidence Act, 1872 (in short, ''Evidence Act'') are based on this rule. The Court is not empowered under the provisions of the Code to compel either the prosecution or the defence to examine any particular witness or witnesses on their side. This must be left to the parties. But in weighing the evidence, the Court can take note of the fact that the best available evidence has not been given, and can draw an adverse inference. The Court will often have to depend on intercepted allegations made by the parties, or on inconclusive inference from facts elicited in the evidence. In such cases, the Court has to act under the second part of the section. Sometimes the examination of witnesses as directed by the Court may result in what is thought to be "filling of loopholes". That is purely a subsidiary factor and cannot be taken into account. Whether the new evidence is essential or not must of course depend on the facts of each case, and has to be determined by the Presiding Judge. 29. The object of the Section 311 is to bring on record evidence not only from the point of view of the accused and the prosecution but also from the point of view of the orderly society. 29. The object of the Section 311 is to bring on record evidence not only from the point of view of the accused and the prosecution but also from the point of view of the orderly society. If a witness called by Court gives evidence against the complainant he should be allowed an opportunity to cross- examine. The right to cross-examine a witness who is called by a Court arises not under the provision of Section 311, but under the Evidence Act which gives a party the right to crossexamine a witness who is not his own witness. Since a witness summoned by the Court could not be termed a witness of any particular party, the Court should give the right of cross- examination to the complainant. These aspects were highlighted in Jamat Raj Kewalji Govani v. State of Maharashtra , (1968) AIR SC 178. 30. Right from the inception of the judicial system it has been accepted that discovery, vindication and establishment of truth are the main purposes underlying existence of Courts of justice. The operative principles for a fair trial permeate the common law in both civil and criminal contexts. Application of these principles involves a delicate judicial balancing of competing interests in a criminal trial, the interests of the accused and the public and to a great extent that of the victim have to be weighed not losing sight of the public interest involved in the prosecution of persons who commit offences. 8. At this stage, this Court deems it proper to place reliance upon judgment rendered by Hon''ble Apex Court in Mannan SK and others vs. State of West Bengal and another , (2014) AIR SC 2950, wherein the Hon''ble Court has held as under:- 9. "10. The aim of every court is to discover truth. Section 311 of the Code is one of many such provisions of the Code which strengthen the arms of a court in its effort to ferret out the truth by procedure sanctioned by law. It is couched in very wide terms. It empowers the court at any stage of any inquiry, trial or other proceedings under the Code to summon any person as a witness or examine any person in attendance, though not summoned as witness or recall and re-examine already examined witness. The second part of the Section uses the word ''shall''. It is couched in very wide terms. It empowers the court at any stage of any inquiry, trial or other proceedings under the Code to summon any person as a witness or examine any person in attendance, though not summoned as witness or recall and re-examine already examined witness. The second part of the Section uses the word ''shall''. It says that the court shall summon and examine or recall or re-examine any such person if his evidence appears to it to be essential to the just decision of the case. The words ''essential to the just decision of the case'' are the key words. The court must form an opinion that for the just decision of the case recall or reexamination of the witness is necessary. Since the power is wide it''s exercise has to be done with circumspection. It is trite that wider the power greater is the responsibility on the courts which exercise it. The exercise of this power cannot be untrammeled and arbitrary but must be only guided by the object of arriving at a just decision of the case. It should not cause prejudice to the accused. It should not permit the prosecution to fill-up the lacuna. Whether recall of a witness is for filling-up of a lacuna or it is for just decision of a case depends on facts and circumstances of each case. In all cases it is likely to be argued that the prosecution is trying to fill-up a lacuna because the line of demarcation is thin. It is for the court to consider all the circumstances and decide whether the prayer for recall is genuine." 9. Hon''Ble Apex Court in Raja Ram Prasad Yadav vs. State of Bihar and another , (2013) 14 SCC 461 , while culling out certain principles required to be borne in mind by the courts while considering applications under Section 311 has held that exercise of widest discretionary powers under Section 311 should ensure that judgment should not be rendered on inchoate, inconclusive and speculative presentation of facts. Hon''ble Apex Court has further held that if evidence of any witness appears to be essential for the just decision of the case, it is the duty of the court to summon and examine or recall and re-examine any such person because very object of exercising power under Section 311 is to find out truth and render a just decision. Most importantly, in the judgment referred to herein above, Hon''ble Apex Court has held that court should bear in mind that no party in 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. 10. Hon''ble Apex Court in Rajendra Prasad vs Narcotic Cell , (1999) 6 SCC 110 , has categorically held that a lacuna in prosecution is not to be equated with the fallout of an oversight committed by a public prosecutor during trial, either in producing relevant materials or in eliciting relevant answers from witnesses. Corollary of such lapses or mistakes during trial/case cannot be understood to be lacuna, which a court cannot fill up. Relevent para of the aforesaid judgment reads as under: "7. It is a common experience in criminal courts that defence counsel would raise objections whenever courts exercise powers under Section 311 of the Code or under Section 165 of the Evidence Act by saying that the Court could not fill the lacuna in the prosecution case''. A lacuna in prosecution is not to be equated with the fallout of an oversight committed by a public prosecutor during trial, either in producing relevant materials or in eliciting relevant answers from witnesses. The adage ''to err is human'' is the recognition-of the possibility of making mistakes to which humans are proved. A corollary of any such latches or mistakes during the conducting of a case cannot be understood as the lacuna which a court cannot fill up. 8. 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 trail of the case, but an over sight in the management of the prosecution cannot be treated as irreparable lacuna. No parry in a trial can before-closed from correcting errors. The advantage of it should normally go to the accused in the trail of the case, but an over sight in the management of the prosecution cannot be treated as irreparable lacuna. No parry in a trial can before-closed 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." 11. It is quite apparent from aforesaid exposition of law that lacuna in prosecution must be understood as ''inherent weakness'' or ''latent wedge'' in the matrix of the prosecution. It has been further categorically held that if proper evidence was not adduced or relevant material was not brought on record due to any inadvertence, the court should be magnanimous in permitting such mistakes to be rectified. 12. Having carefully perused averments contained in the application filed under Section 311 Cr.PC., vis--vis reasoning recorded by the court below while passing impugned order, this Court is persuaded to agree with Mr. Amit Dhumal, learned Deputy Advocate General, that examination of persons named in para-2 of the application is essential for just decision of the case. Words "essential to the just decision of the case" are the key words and in this regard, court is required to form an opinion, but for just decision of the case, whether it is necessary to recall or re-examine a witness or not? 13. In the case at hand court below in the given facts and circumstances has rightly arrived at a conclusion that person sought to be examined by the prosecution is essential for just and fair decision of the case and as such, this Court finds no illegality and infirmity in the same and same are dismissed accordingly. Otherwise also, no prejudice, whatsoever, would be caused to the other party because they would definitely get opportunity to cross-examine the witnesses to be examined by court below.