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2018 DIGILAW 890 (JK)

Pushpinder Singh v. State of J&K

2018-11-16

SANJAY KUMAR GUPTA

body2018
JUDGMENT : Sanjay Kumar Gupta, J. Through the medium of instant petition filed under Section 561-A Cr.P.C., petitioner seeks allowing of the application filed under Section 540 Cr.P.C. before CJM Jammu, for recalling of the prosecution witnesses (PW-6, 22 & 23) for their cross-examination, who were examined on 30.04.2010 by the prosecution, after quashing the order dated 08.08.2017 in an application under Section 540 Cr.P.C. and order dated 28.09.2017 in the Revision thereof, passed by the Chief Judicial Magistrate, Jammu and 1st Additional Sessions Judge, Jammu, respectively. 2. In the petition it has been stated that the petitioner is an accused in a case under Sections 279/304-A RPC in case FIR No. 226/2006, registered at Police Station Gandhi Nagar, Jammu, which is pending disposal before Chief judicial Magistrate, Jammu, wherein the prosecution has examined 12 witnesses in all, out of total list of 45 witnesses and their right to lead the evidence has been closed on 25.10.2016. The statement of accused under Section 342 Cr.P.C. was recorded on 06.12.2016 and the matter was kept for defence evidence, during this period the petitioner/applicant moved an application under Section 540 Cr.PC, seeking to recall the prosecution witnesses (PWs-6, 22 & 23) on 08.06.2017. The Chief Judicial Magistrate, Jammu without proper application of mind rejected the application solely on the ground, that in the application, the applicant has not shown that the witnesses to be recalled are essential for the just decision of the case. It has been further contended that after the application under Section 540 Cr.PC, filed before CJM, Jammu was rejected on 08.08.2017, the petitioner filed criminal revision before 1st Additional Sessions Judge, Jammu on 16.08.2017, which was also dismissed on 28.09.2017. It has been further contended that after the application under Section 540 Cr.PC, filed before CJM, Jammu was rejected on 08.08.2017, the petitioner filed criminal revision before 1st Additional Sessions Judge, Jammu on 16.08.2017, which was also dismissed on 28.09.2017. In view of the aforesaid factual backdrop, petitioner has approached this Court by way of instant petition with the prayer for allowing the application filed under Section 540 Cr.PC before CJM, Jammu and to recall the prosecution witnesses (PWs-6, 22 & 23) for their cross-examination after setting aside the order dated 08.08.2017 and order dated 28.09.2017, passed by the CJM Jammu and 1st Additional Sessions Judge, Jammu respectively on following grounds:- (a) That, the CJM, Jammu rejected the application u/s 540 Cr.PC for recalling of only three eye-witnesses adduced by the prosecution despite citing them as witnesses of seizure memo solely on the ground that they are not essential for the just decision of the case, even as he has condoned the delay observing the same as no ground to reject the application u/s 540 Cr.PC. The 1st Additional Sessions Judge, Jammu dismissed the revision on the ground that order dated 08.08.2017, rejecting application u/s 540 Cr.PC by the CJM, Jammu is interlocutory and hence, not maintainable. The order dated 8-08-2017 passed by the CJM, Jammu is bad in law and cannot sustain in the eyes of law, as denial of opportunity nor to the petitioner to cross-examine the witnesses, that too eye witnesses tantamount being condemned unheard for no fault and the judgment delivered so would result in patent error and grave injustice to the party/petitioner against the principles of natural justice and infringement of his fundamental rights as enshrined in the constitution. (b) That the power u/s 540 Cr.PC to the court is wide enough and to advance the cause of justice, as also to reveal the veracity in the facts and circumstances of each case, so as to reach at right conclusion after proper appreciation of evidence, which obviously could be determined after taking viewpoints of both prosecution as well as accused into consideration and, thus, same cannot be decided without affording accused an opportunity of cross-examining the witnesses and the petitioner prays accordingly. It is trite law that no prejudice should be caused to the petitioner besides the same should not allow the prosecution to fill up the lacuna and the courts should be circumvent enough while using the power u/s 540 Cr.PC, since the same should always be for advancing the cause of justice and, thus, recalling of above stated eye witnesses would appropriately meet the ends of justice and would help the court in reaching to the right decision and the petitioner, accordingly, prays for the same. The order of 1st Additional Sessions Judge Jammu dismissing the revision being not maintainable, is also unreasonable, illogical and illegal, as revision against order rejecting application u/s 540 Cr.PC, is maintainable, held by various courts and, thus, the same deserves to be quashed and the petitioner prays accordingly. 3. I have considered the rival contentions and law on the subject. 4. From perusal of the file, it appears that petitioner is facing trial u/s 279/304-A RPC in FIR No.226/2006, registered at Police Station Gandhi Nagar, Jammu, and pending before CJM, Jammu; during course of trial, petitioner filed an application for recalling the PWs No.6, 22 and 23, who were examined in chief but could not be cross-examined due to absence of counsel for accused; Court below rejected the application on the ground that statements of these witnesses were recorded on 30.04.2010 and these were cross-examined by Court as accused refused to cross-examine them; it has been held by court below that evidence of prosecution has been closed on 06.12.2016 and application has been filed after six years from the date of examination of these witnesses. 5. Petitioner filed revision before 1st Additional Session Judge, Jammu, who, too dismissed the same on 28.09.2017. 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. 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 reexamine 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. Discovery of truth is an essential purpose of any trial or enquiry. Cross examination of witness is essential for shaking creditability of witness. Our criminal administration of justice mandates that no one should be condemned unheard. Right of cross examination of witness who has spoken against the accused is basic right of accused. In case witness is not cross examined, it may result in a serious miscarriage of justice. It is the duty of court to arrive at the truth by lawful means. 8. The witnesses mentioned above have not been cross examined at all by counsel for petitioner though have been examined by Court itself; although court has held that accused has refused to cross examine the witnesses, but when accused has engaged counsel, then he is not obliged to cross examine the witnesses himself. 9. In case titled P. Sanjeeva Rao vs. State of A.P. reported in, AIR 2012 SC 2242 , it is held as under: "Criminal P.C (2 of 1974), Ss, 311, 242-Recall of witness for examination-Bribery case-Recall of complainant and shadow witness for cross-examination sought years after examination-in-chief-Plea that their cross-examination was deferred as defense wanted to cross-examine them after trap laying officer was examined-Liable to be accepted as nobody would refuse to cross-examine witnesses who had supported prosecution case-Refusal to recall witnesses would amount to condemning accused without giving him opportunity to challenge correctness of version and credibility of witnesses-Permission to recall witnesses granted despite prejudice that may be caused to prosecution because of belated recall. 11. ------------------- Denial of an opportunity to recall the witnesses for cross-examination would amount to condemning the appellant without giving him the opportunity to challenge the correctness of the version and the credibility of the witnesses. 11. ------------------- Denial of an opportunity to recall the witnesses for cross-examination would amount to condemning the appellant without giving him the opportunity to challenge the correctness of the version and the credibility of the witnesses. It is trite that the credibility of witnesses whether in a civil or criminal case can be tested only when the testimony is put through the fire of cross-examination. Denial of an opportunity to do so will result in a serious miscarriage of justice in the present case keeping in view the serious consequences that will follow any such denial. 12. The nature and extent of the power vested in the Courts under Section 311 Cr.P.C. to recall witnesses was examined by this Court in Hanuman Ram v. The State of Rajasthan & Ors., (2008) 15 SCC 652 . This Court held that the object underlying Section 311 was to prevent failure of justice on account of a mistake of either party to bring on record valuable evidence or leaving an ambiguity in the statements of the witnesses. This Court observed: "This is a supplementary provision enabling, and in certain circumstances imposing on the Court, the duty of examining a material witness who would not be otherwise brought before it. It is couched in the widest possible terms and calls for no limitation, either with regard to the stage at which the powers of the Court should be exercised, or with regard to the manner in which it should be exercised. It is not only the prerogative but also the plain duty of a Court to examine such of those witnesses as it considers absolutely necessary for doing justice between the State and the subject. There is a duty cast upon the Court to arrive at the truth by all lawful means and one of such means is the examination of witnesses of its own accord when for certain obvious reasons either party is not prepared to call witnesses who are known to be in a position to speak important relevant facts. 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 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 of the prosecution and not that of the accused. The section is a general section which applies to all proceedings, enquires and trials under the Code and empowers the 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." 13. 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: "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." 14. After all the trial is basically for the prisoners and courts should afford the opportunity to them in the fairest manner possible." 14. The extent and the scope of the power of the Court to recall witnesses was examined by this Court in Mohanlal Shamji Soni v. Union of India & Anr., (1991) Supp1 SCC 271, where this Court observed: "The principle of law that emerges from the views expressed by this Court in the above decisions is that the criminal court has ample power to summon any person as a witness or recall and re-examine any such person even if the evidence on both sides is closed and the jurisdiction of the court must obviously be dictated by exigency of the situation, and fair-play and good sense appear to be the only safe guides and that only the requirements of justice command and examination of any person which would depend on the facts and circumstances of each case." 15. Discovery of the truth is the essential purpose of any trial or enquiry, observed a three-Judge Bench of this Court in Maria Margarida Sequeria Fernandes v. Erasmo Jack de Sequeria through LRs., (2012) 3 Scale 550 . A timely reminder of that solemn duty was given, in the following words: "What people expect is that the Court should discharge its obligation to find out where in fact the truth lies. Right from inception of the judicial system it has been accepted that discovery, vindication and establishment of truth are the main purposes underlying the existence of the courts of justice." 16. We are conscious of the fact that recall of the witnesses is being directed nearly four years after they were examined in chief about an incident that is nearly seven years old. Delay takes a heavy toll on the human memory apart from breeding cynicism about the efficacy of the judicial system to decide cases within a reasonably foreseeable time period. To that extent the apprehension expressed by Mr. Rawal, that the prosecution may suffer prejudice on account of a belated recall, may not be wholly without any basis. Delay takes a heavy toll on the human memory apart from breeding cynicism about the efficacy of the judicial system to decide cases within a reasonably foreseeable time period. To that extent the apprehension expressed by Mr. Rawal, that the prosecution may suffer prejudice on account of a belated recall, may not be wholly without any basis. Having said that, we are of the opinion that on a parity of reasoning and looking to the consequences of denial of opportunity to cross-examine the witnesses, we would prefer to err in favour of the appellant getting an opportunity rather than protecting the prosecution against a possible prejudice at his cost. Fairness of the trial is a virtue that is sacrosanct in our judicial system and no price is too heavy to protect that virtue. A possible prejudice to prosecution is not even a price, leave alone one that would justify denial of a fair opportunity to the accused to defend himself." 10. In view of above law, this court is of opinion that opportunity must be provided to petitioner to cross examine the PWs No.6, 22 and 23 for fair trial. The impugned orders of court below are set aside accordingly. This petition is allowed. However, petitioner shall deposit Rs.1000/- each for calling the witnesses before Court below within one week from the date, the order is received by Court below and thereafter court shall call the witnesses. It is further directed that no adjournment shall be allowed, on the date when witnesses come in the court, unless unavoidable circumstances. This petition is disposed of accordingly.