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2018 DIGILAW 841 (JK)

Javed Iqbal v. State of J&K

2018-10-26

SANJAY KUMAR GUPTA

body2018
JUDGMENT : 1. Through the medium of instant criminal revision, the petitioner inter alia seeks setting aside of order dated 22.11.2013 passed by the learned Principal Sessions Judge, Jammu, by virtue of which while exercising power u/s 540 Cr.P.C., notices have been issued to three prosecution witnesses to give their evidence in the Court. 2. Briefly stated, the facts of the case are that the petitioners along with others are facing trial in criminal challan titled State of J&K vs. Zaffar Iqbal and others for commission of offences punishable under Section 3 of Enemy Agents Ordinance, 7/25 Arms Act and Section 4/5 of Explosive Substance Act which has originated from FIR No.103/2007, registered with Police Station, Janipur, Jammu. During the trial the prosecution was given number of opportunities to produce evidence against the accused persons and, in fact, the prosecution had produced evidence of all the important witnesses. After number of opportunities having been given in this regard, the evidence of the prosecution was closed by the learned trial court. After the closure of the evidence of the prosecution, an application came to be filed by the Public Prosecutor under Section 540 of the Code of Criminal Procedure for re-summoning of the prosecution witnesses whose evidence have not been recorded. The trial court considered the said application and dismissed the same vide order dated 10.10.2013 being not justified in the circumstances. 3. During the course of arguments in the said application, the prosecution had specifically argued with regard to re-summoning of the prosecution witnesses Mr. H.A. Sadiqui, Mr. Sanjay Dutt and Mr. Rahul Kumar Singh. After the dismissal of the aforesaid application, the trial Court kept the case for recording of the statement of the accused persons under Section 342 Cr.P.C. After recording the statements of accused persons under Section 342 Cr.P.C., the trial court has even granted the benefit of Section 273 Cr.P.C. and accused Maqsooda Khatoon was acquitted at the stage of arguments, in view of no evidence against her. Thereafter, the learned trial court for reasons unknown has passed the order impugned dated 22.11.2013 by virtue of which provisions of Section 540 Cr.P.C. have been invoked for re-summoning of the witnesses, prayer for which was earlier disallowed by the trial court. 4. Thereafter, the learned trial court for reasons unknown has passed the order impugned dated 22.11.2013 by virtue of which provisions of Section 540 Cr.P.C. have been invoked for re-summoning of the witnesses, prayer for which was earlier disallowed by the trial court. 4. The petitioners being aggrieved of the order impugned, therefore, seek to challenge the same on the following grounds : (a) That the order impugned dated 22.11.2013 passed by the trial court is against law and facts, therefore, the same deserves to be set aside. (b) That the order impugned dated 22.11.2013 is further contrary to the provisions of law inasmuch as no power is vested with the trial court to invoke the provisions of section 540 CrPC after having rejecting the peal for invocation of the same as that tantamount to review of the earlier order which, as per the criminal jurisprudence and law laid down by Hon’ble the Supreme Court, is not legally permissible. That order impugned dated 22.11.2013 is further an abuse of the powers vested with the trial court inasmuch as by virtue of the order impugned, the trial court has attempted to reopen the trial despite the fact that the same is contrary to the expressions of law as the power of the learned trial court to review its own order is barred under the provisions of the Criminal Procedure Code and the law laid down by the Apex Court of the Country in number of cases. 5. I have considered the rival contentions and law on the subject. From the perusal of order dated 10.10.2013, it appears that during trial PP filed an application for calling some of witnesses, whose statements could not be recorded. It has been mentioned that these witnesses including some of wetnesses from Special Police Cell Delhi appeared, but due to absence of defense counsel, same could not be recorded. Court below dismissed the application on the ground that application has been filed just to delay the trial. Thereafter statements of accused u/s 342 Cr.P.C. were recorded and one of accused namely Maqsooda Khatoon was acquitted u/s 273 Cr.P.C. It further appears that court below while hearing the argument came to conclusion that PWs Hussain Ahmed Sidiqui, Inspector Sanjay Dutt and Inspector Rahul Kumar Singh are important witnesses and their examination were necessary for just decision of case. Thereafter statements of accused u/s 342 Cr.P.C. were recorded and one of accused namely Maqsooda Khatoon was acquitted u/s 273 Cr.P.C. It further appears that court below while hearing the argument came to conclusion that PWs Hussain Ahmed Sidiqui, Inspector Sanjay Dutt and Inspector Rahul Kumar Singh are important witnesses and their examination were necessary for just decision of case. Accordingly, court below while exercising the power vested in him, called these witnesses by issuing notices. 6. Section 540 reads as under : “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.” 7. From bare perusal of this section, it is evident that it consists of two parts. First part gives discretionary power to court in summoning 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. Second part of section is mandatory and it casts a duty upon the court to call and examine or recall and re-examine any such person if his evidence appears to it essential to the just decision of the case. Both the powers have to be exercised by with care and judiciously, so that criminal justice seems to have been done to both prosecution and accused. 8. In present case, accused persons are facing trial in heinous offense under section 3 of E.A.O. and 7/25 Arms Act, 4/5 Explosive Substance Act in FIR no. 103/2007 of P/S Janipur, Jammu. These are heinous offences. 9. Discovery of truth is an essential purpose of any trial or enquiry. Our criminal administration of justice mandates that no one should be condemned unheard. Although, speedy trial is fundamental right of accused but it is also law that for applying law of speedy trial the accused should have also remained present in trial regularly. These are heinous offences. 9. Discovery of truth is an essential purpose of any trial or enquiry. Our criminal administration of justice mandates that no one should be condemned unheard. Although, speedy trial is fundamental right of accused but it is also law that for applying law of speedy trial the accused should have also remained present in trial regularly. But, in the present case, from the perusal of order impugned, it is evident that witnesses sought to be called were present during trial, but due to absence of counsel for accused, could not be examined. So, accused were also responsible for delaying the trial. Accused have committed heinous offence and procedural laws are handmade tools meant for administration of justice, not to frustrate the justice delivery system. 10. The Hon'ble Supreme 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". 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. 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. 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 cross-examine a witness who is not his own witness. 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 cross-examine 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 Jamatraj Kewalji Govani vs. State of Maharashtra, AIR 1968 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.” 11. Hon'ble Supreme Court in Raja Ram Prasad Yadav vs. State of Bihar and another (2013) 14 SCC 461 wherein it has been held that the powers under Section 311 of the Code to 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, can be exercised at any stage provide that the same is required for the just decision of the case. Relevant Paras read 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. A reading of the provision shows that the expression "any" has been used as a pre-fix to "court", "inquiry", "trial", "other proceeding", "person as a witness", "person in attendance though not summoned as a witness", and "person already examined". A reading of the provision shows that the expression "any" has been used as a pre-fix to "court", "inquiry", "trial", "other proceeding", "person as a witness", "person in attendance though not summoned as a witness", and "person already examined". By using the said expression "any" as a pre-fix to the various expressions mentioned above, it is ultimately stated that all that was required to be satisfied by the Court was only in relation to such evidence that appears to the Court to be essential for the just decision of the case. Section 138 of the Evidence Act, prescribed the order of examination of a witness in the Court. Order of re-examination is also prescribed calling for such a witness so desired for such re-examination. Therefore, a reading of Section 311 Cr.P.C. and Section 138 Evidence Act, insofar as it comes to the question of a criminal trial, the order of re-examination at the desire of any person under Section 138, will have to necessarily be in consonance with the prescription contained in Section 311 Cr.P.C. 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. Insofar as recalling and re-examination of any person already examined, the Court must necessarily consider and ensure that such recall and re-examination of any person, appears in the view of the Court to be essential for the just decision of the case. Therefore, the paramount requirement is just decision and for that purpose the essentiality of a person to be recalled and re-examined has to be ascertained. 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. 15. 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. 15. In this context, we also wish to make a reference to certain decisions rendered by this Court on the interpretation of Section 311 Cr.P.C. where, this Court highlighted as to the basic principles which are to be borne in mind, while dealing with an application under Section 311 Cr.P.C. 15.1. In the decision reported in Jamatraj Kewalji Govani vs. State of Maharashtra, AIR 1968 SC 178 , this Court held as under in paragraph 14: (AIR pp. 182-83) "14. It would appear that in our criminal jurisdiction, statutory law confers a power in absolute terms to be exercised at any stage of the trial to summon a witness or examine one present in court or to recall a witness already examined, and makes this the duty and obligation of the Court provided the just decision of the case demands it. In other words, where the court exercises the power under the second part, the inquiry cannot be whether the accused has brought anything suddenly or unexpectedly but whether the court is right in thinking that the new evidence is needed by it for a just decision of the case. If the court has acted without the requirements of a just decision, the action is open to criticism but if the court's action is supportable as being in aid of a just decision the action cannot be regarded as exceeding the jurisdiction." (Emphasis added) 15.2. If the court has acted without the requirements of a just decision, the action is open to criticism but if the court's action is supportable as being in aid of a just decision the action cannot be regarded as exceeding the jurisdiction." (Emphasis added) 15.2. In the decision reported in Mohanlal Shamji Soni vs. Union of India and another, 1991 Suppl.(1) SCC 271, this Court again highlighted the importance of the power to be exercised under Section 311 Cr.P.C. as under in paragraph 10: (SCC p. 277) "10....In order to enable the court to find out the truth and render a just decision, the salutary provisions of Section 540 of the Code (Section 311 of the new Code) are enacted whereunder any court by exercising its discretionary authority at any stage of enquiry, trial or other proceeding can summon any person as a witness or examine any person in attendance though not summoned as a witness or recall or re-examine any person in attendance though not summoned as a witness or recall and re-examine any person already examined who are expected to be able to throw light upon the matter in dispute; because if judgments happen to be rendered on inchoate, inconclusive and speculative presentation of facts, the ends of justice would be defeated." 15.3. In the decision in Raj Deo Sharma (2) vs. State of Bihar, 1999 (7) SCC 604 , the proposition has been reiterated as under in paragraph 9: (SCC p. 613) "9. We may observe that the power of the court as envisaged in Section 311 of the Code of Criminal Procedure has not been curtailed by this Court. Neither in the decision of the five-Judge Bench in A.R. Antulay case nor in Kartar Singh case such power has been restricted for achieving speedy trial. In other words, even if the prosecution evidence is closed in compliance with the directions contained in the main judgment it is still open to the prosecution to invoke the powers of the court under Section 311 of the Code. We make it clear that if evidence of any witness appears to the court to be essential to 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." (Emphasis added) 15.4. In U.T. of Dadra and Nagar Haveli and Anr. We make it clear that if evidence of any witness appears to the court to be essential to 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." (Emphasis added) 15.4. In U.T. of Dadra and Nagar Haveli and Anr. vs. Fatehsinh Mohansinh Chauhan 2006 (7) SCC 529 , the decision has been further elucidated as under in paragraph 15: (SCC p. 538) "15. A conspectus of authorities referred to above would show that the principle is well settled that the exercise of power under Section 311 CrPC should be resorted to only with the object of finding out the truth or obtaining proper proof of such facts which lead to a just and correct decision of the case, this being the primary duty of a criminal court. Calling a witness or re-examining a witness already examined for the purpose of finding out the truth in order to enable the court to arrive at a just decision of the case cannot be dubbed as "filling in a lacuna in the 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." (Emphasis added) 15.5. In Iddar & Ors. vs. Aabida & Anr. (2007) 11 SCC 211 , the object underlying under Section 311 Cr.P.C., has been stated as under in para 9: (SCC pp. 213-14) "9...... '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. 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.'* " (Emphasis added) 15.6. In P. Sanjeeva Rao vs. State of A.P. (2012) 7 SCC 56 , the scope of Section 311 Cr.P.C. has been highlighted by making reference to an earlier decision of this Court and also with particular reference to the case, which was dealt with in that decision in paragraphs 20 and 23, which are as under: (SCC pp. 63-64) "20. Grant of fairest opportunity to the accused to prove his innocence was the object of every fair trial, observed this Court in Hoffman Andreas v. Inspector of Customs, Amritsar (2000) 10 SCC 430 . The following passage is in this regard apposite: (SCC p. 432, para 6) "6.....In such circumstances, if the new counsel thought to have the material witnesses further examined, the Court could adopt latitude and a liberal view in the interest of justice, particularly when the court has unbridled powers in the matter as enshrined in Section 311 of the Code. After all the trial is basically for the prisoners and courts should afford the opportunity to them in the fairest manner possible." 12. From above said principle of law, it is manifest that 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 re-examine any such witnesses. 13. In view of above, I don’t find any ground to set aside the order of court below. This petition is dismissed. Interim stay is vacated. Copy be sent to Court below for information.