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2019 DIGILAW 696 (GAU)

Deepjyoti Kalita v. State of Assam

2019-06-04

ACHINTYA MALLA BUJOR BARUA

body2019
JUDGMENT : Achintya Malla Bujor Barua, J. 1. Heard Mr. U.K. Das, learned counsel for the petitioner. Also heard Mr. B.B. Gogoi, learned Additional Public Prosecutor for the State respondents. Considering the nature of the order proposed to be passed, we deem it appropriate that notice need not be served on the prosecutrix respondent No. 2. 2. An Ejahar dated 08.11.2017 was lodged before the Officer-in-Charge of Patacharkuchi Police Station by the prosecutrix respondent No. 2, inter alia stating that the respondent No. 2 had a relation with the accused petitioner for about two months, but because of his bad character, she had discontinued the relationship. In the evening of 07.11.2017, when the prosecutrix respondent No. 2 proceeded to the Rash Mahotsav at Baghmara with a friend Barasha Das, the accused petitioner followed her and at about 9.30 p.m. clutched her hand and dragged her away. When the friend of the prosecutrix respondent No. 2 tried to restrain the accused petitioner, he had scolded her and dragged away the prosecutrix respondent No. 2 and took her to one of his friend house at Sukulipar on a motor cycle. 3. It was further stated that when the prosecutrix respondent No. 2 raised hue and cry, the accused petitioner gagged her mouth and took her inside the house. It was alleged that upon taking her inside the house, the accused petitioner forcefully raped and confined her there for about one hour. Upon such ejahar being lodged, Patacharkuchi P.S. Case No. 785/2017 was registered under Section 366/342/34 IPC read with Section 4 of the POCSO Act. 4. The respondent No. 2 was examined and her statement was also recorded under Section 164 Cr.P.C. Upon investigation, a charge-sheet was submitted against the accused petitioner vide Charge-Sheet No. 417/2017 dated 04.12.2017 under Section 366/342 IPC read with Section 4 of the POCSO Act. 5. During the trial, 7 witnesses were examined including the prosecutrix respondent No. 2 as PW-1 and the prosecutrix exhibited the FIR as Exhibit-1, the statement under Section 164 Cr.P.C. as Exhibit-2, Seizure list as Exhibit-3, Medical Examination Report as Exhibit-4, Sketch map as Exhibit-5, Charge-sheet as Exhibit-6 and photocopy of the HSLC Admit Card as Material Exhibit-1, which was under objection. 6. 6. According to the petitioner, the prosecution evidence was closed and the statement of the accused petitioner was taken under Section 313 Cr.P.C. and the matter was fixed for argument on 03.09.2018. 7. The argument was heard on 27.09.2018 and 09.10.2018 and the next date i.e. 22.10.2018 was fixed for judgment. But as the accused petitioner remained absent, the judgment was not delivered and in turn NBWA was issued against him. The petitioner approached the High Court by filing Crl. Petition No. 1142/2018 against the NBWA and by the order dated 15.11.2018 he was allowed to appear before the trial Court. 8. Due to certain intervening circumstance, the accused petitioner had the apprehension that proper justice may not be meted to him by the learned Additional Sessions Judge, Bajali and consequently, preferred transfer petition before the High Court which was registered as Crl. Misc. (T) Case No. 32/2018. But during the pendency of the said petition, the presiding officer was transferred and was replaced by another officer and in the resultant situation, the transfer petition stood rejected by the order dated 21.02.2019. 9. As a result, the matter was again fixed for argument on 02.04.2019. The accused petitioner submitted a written argument on 12.04.2019 and also advanced oral argument and accordingly 26.04.2019 was fixed for judgment. According to the petitioner in his written argument so submitted, he had taken a stand by narrating certain circumstance that the age of the prosecutrix respondent No. 2 on the date of occurrence was more than 18 year and therefore, the provisions of POCSO Act would not be attracted. 10. According to the petitioner, as he had taken a substantive stand that the prosecutrix respondent No. 2 was not below the age of 18 years on the date of occurrence, the learned Additional Sessions Judge, Bajali decided to fill up the lacuna in the prosecution case by suo moto issuing an order dated 26.04.2019, whereby, summons was issued to the Controller of Examination of the Board of Secondary Education, Assam namely, Narayan Jyoti Sarmah with a direction to bring the counterfoil, if any of the Admit Card bearing Roll- 817-005, No. 0295 and Registration No. 03/PR/0092/001365/15 along with the records of the register. 11. 11. The said order of 26.04.2019 has been assailed in this revision petition and the sole ground taken is that under Section 311 under Chapter XXIV of the Cr.P.C. the trial court can summon a material witness or examine any person only at the stage of enquiry or trial or in any other proceeding under the Code and not after termination/conclusion of the trial. The accused appellant also relies upon Section 353 under chapter XXVII Cr.P.C. which inter alia provides that the judgment in every trial in any criminal court of original jurisdiction shall be pronounced in the open court by presiding officer immediately after termination of the trial or at some subsequent time of which notice shall be given to the parties. 12. By relying on the provisions of Section 353 Cr.P.C. it is the contention of the accused petitioner that as per the provisions of Section 353 which provides for a judgment after termination of a trial, any order passed in a trial reserving a matter for judgment, would itself be an indication that the trial of the matter had already concluded. Accordingly, it is contended that the very order posting the matter for judgment on 26.04.2019 is itself a conclusive indication that the stage of termination of the trial had already been arrived. 13. Sections 311 and 353 of the Cr.P.C. are as follows:- "311. 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 through not summoned as a witness, or recall and re-examine any person already examine; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case." "353. Judgment - (1) The judgment in every trial in any Criminal Court of original jurisdiction shall be pronounced in open Court by the presiding officer immediately after the termination of the trial or at some subsequent time of which notice shall be given to the parties or their pleaders:- (a) by delivering the whole of the judgment. (b) by reading out the whole of the judgment. (b) by reading out the whole of the judgment. (c) by reading out the operative part of the judgment and explaining the substance of the judgment in a language which is understood by the accused or his pleader. (2) Where the judgment is delivered under clause (a) of sub-section (1), the presiding officer shall cause it to be taken down in short-hand, sign the transcript and every page thereof as soon as it is made ready, and write on it the date of the delivery of the judgment in open Court. (3) Where the judgment or the operative part thereof is read out under clause (b) or clause (c) of sub-section (1), as the case may be, it shall be dated and signed by the presiding officer in open Court, and if it is not written with his own hand, every page of the judgment shall be signed by him. (4) Where the judgment is pronounced in the manner specified in clause (c) of sub-section (1), the whole judgment or a copy thereof shall be immediately made available for the perusal of the parties or their pleaders free of cost. (5) If the accused is in custody, he shall be brought up to hear the judgment pronounced. (6) If the accused is not in custody, he shall be required by the Court to attend to hear the judgment pronounced, except where his personal attendance during the trial has been dispensed with and the sentence is one of fine only or he is acquitted: Provided that, where there are more accused than one, and one or more of them do not attend the Court on the date on which the judgment is to be pronounced, the presiding officer may, in order to avoid undue delay in the disposal of the case, pronounce the judgment notwithstanding their absence. (7) No judgment delivered by any Criminal Court shall be deemed to be invalid by reason only of the absence of any party or his pleader on the day or from the place notified for the delivery thereof, or of any omission to serve, or defect in serving, on the parties or their pleaders, or any of them, the notice of such day and place. (8) Nothing in this section shall be construed to limit in any way the extent of the provisions of section 465." 14. (8) Nothing in this section shall be construed to limit in any way the extent of the provisions of section 465." 14. Section 353 of the Cr.P.C. merely provides that the judgment in every trial in any criminal court of original jurisdiction shall be pronounced in open court by the Presiding Officer immediately after the termination of the trial or at some subsequent time of which notice shall be given to the parties or their pleaders. 15. But Section 353 nowhere provides that once a proceeding is fixed for judgment that by itself is an indication that it is the termination of the trial. All that it provides is that the judgment shall be pronounced by the presiding officer after the termination of the trial. Therefore, only a pronouncement of the judgment itself can be understood to be a situation where there is a termination of the trial and merely because the matter stood fixed for a judgment to be delivered on a subsequent date by itself cannot be construed to be a termination of the trial. 16. Section 311 of the Cr.P.C. clearly provides that any Court may at any stage of the enquiry trial or other proceeding under the Code, summon a person as a witness, or examine person in attendance, though not summoned as a witness, or recall and re-examine any person already examined, if his evidence appears to the Court to be essential to the just decision of the case. 17. Mr. U.K. Das, learned counsel for the petitioner, by relying upon a pronouncement of the Supreme Court rendered in Mir Mohd. Omar vs. State of West Bengal, 1989 AIR SC 785 in paragraph 16 raises a contention that once the statement of the accused had been taken under Section 313 Cr.P.C. no further evidence can be adduced by the prosecution to fill up its lacuna. Paragraph-16 is as follows:- We equally see no justification for the High Court for giving liberty to the prosecution to file and application for re-examination of PW-34. In fact it will be seen from the operative portion of the impugned order the High Court proceeds on the assumption that PW-34 would be re-called for further examination. Here again it may be noted that the prosecution has closed the evidence. The accused have been examined under Section 313 of the Code. In fact it will be seen from the operative portion of the impugned order the High Court proceeds on the assumption that PW-34 would be re-called for further examination. Here again it may be noted that the prosecution has closed the evidence. The accused have been examined under Section 313 of the Code. The prosecution did not at any stage move the trial judge for recalling PW-34 for further examination. In these circumstance, the liberty reserved to the prosecution to recall PW-34 for re-examination is undoubtedly uncalled for." 18. When we read paragraph-16 of the pronouncement in Mir Mohd Omar (supra), it is noticeable that the view expressed by the Supreme Court against recalling of PW-34 therein for further examination is more of a view expressed in the fact of that case rather than laying down a rigid proposition of law that after examination of the accused under Section 313 of the Cr.P.C. it would be impermissible to recall any witness. 19. The question of recalling or re-examination or to the effect of calling any witness under Section 311 Cr.P.C. had been more lucidly provided in paragraph-13 to 17 of the Judgemnt of the Supreme Court rendered in Mannan Shaikh vs. State of West Bengal, (2014) 13 SCC 59 , wherein, the Supreme Court also had the occasion to examine its earlier pronouncements in Mohanlal Shamiji Soni vs. Union of India, (1991) Supp. 1 SCC 271, Rajendra Prasad vs. Narcotic Cell, (1999) 6 SCC 110 and Zahira Habibulla H. Sheikh vs. State of Gujarat, (2004) 4 SCC 158 . Paragraph 13 to 17 Mannan Shaikh (supra) is as follows:- "13. Rather than referring to all the judgments which are cited before us, we would concentrate on Mohanlal Soni which takes into consideration relevant judgments on the scope of Section 311 and lays down the principles. Mohanlal Soni is followed in all subsequent judgments. In Mohanlal Soni this Court was considered the scope of Section 540 of the Code of Criminal Procedure, 1898 (the old code) which is similar to Section 311 of the Code. This Court observed that it is a cardinal rule in the law of evidence that the best available evidence should be brought before the court to prove a fact or the points in issue. This Court observed that it is a cardinal rule in the law of evidence that the best available evidence should be brought before the court to prove a fact or the points in issue. The relevant observations of this Court are as under: 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. This Court further observed as under: Though Section 540 (Section 311 of the new Code) is, 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 they should be exercised, that power is circumscribed by the principle that underlines Section 540, namely, evidence to be obtained should appear to the court essential to a just decision of the case by getting at the truth by all lawful means. Therefore, it should be borne in mind that the aid of the section should be invoked only with the object of discovering relevant facts or obtaining proper proof of such facts for a just decision of the case and it must be used judicially and not capriciously or arbitrarily because any improper or capricious exercise of the power may lead to undesirable results. Further it is incumbent that due care should be taken by the court while exercising the power under this section and it should not be used for filling up the lacuna left by the prosecution or by the defence or to the disadvantage of the accused or to cause serious prejudice to the defence of the accused or to give an unfair advantage to the rival side and further the additional evidence should not be received as a disguise for a retrial or to change the nature of the case against either of the parties. 14. While dealing with Section 311 of the Code in Rajendra Prasad this Court explained what is lacuna in the prosecution as under: 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 trial of the case, but an oversight in the management of the prosecution cannot be treated as irreparable lacuna. No party in a trial can be foreclosed 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." 15. Reference must also be made to the observations of this Court in Zahira Habibulla H. Sheikh and Another vs. State of Gujarat and Others (supra) where this Court described the scope of Section 311 of the Code as under: Object of the Section is to enable the court to arrive at the truth irrespective of the fact that the prosecution or the defence has failed to produce some evidence which is necessary for a just and proper disposal of the case. The power is exercised and the evidence is examined neither to help the prosecution nor the defence, if the court feels that there is necessity to act in terms of Section 311 but only to sub-serve the cause of justice and public interest. It is done with an object of getting the evidence in aid of a just decision and to uphold the truth. 16. It is done with an object of getting the evidence in aid of a just decision and to uphold the truth. 16. If we view the present case in light of the above judgments, we will have to sustain the High Court's order. PW-15 SI Dayal Mukherjee stated in the court that he had recorded the statement of deceased Rupchand Sk. Thus, this fact was known to the defence. He was cross-examined by the defence. Inadvertently, the said statement was not brought on record through PW-15 SI Dayal Mukherjee. Rupchand Sk. died after the said statement was recorded. The said statement, therefore, became very vital to the prosecution. It is obvious that the prosecution wants to treat it as a dying declaration. Undoubtedly, therefore, it is an essential material to the just decision of the case. Though, the fact of the recording of this statement is deposed to by PW-15 SI Dayal Mukherjee, since due to oversight it was not brought on record, application was made under Section 311 of the Code praying for recall of PW-15 SI Dayal Mukherjee. This cannot be termed as an inherent weakness or a latent wedge in the matrix of the prosecution case. No material is tried to be brought on record surreptitiously to fillup the lacuna. Since the accused knew that such a statement was recorded by PW-15 SI Dayal Mukherjee, no prejudice can be said to have been caused to the accused, who will undoubtedly get a chance to cross-examine PW-15 SI Dayal Mukherjee. 17. It is true that PW-15 SI Dayal Mukherjee was once recalled but that does not matter. It does not prevent his further recall. Section 311 of the Code does not put any such limitation on the court. He can still be recalled if his evidence appears to the court to be essential to the just decision of the case. In this connection we must revisit Rajendra Prasad where this Court has clarified that the court can exercise power of re- summoning any witness even if it has exercised the said power earlier. He can still be recalled if his evidence appears to the court to be essential to the just decision of the case. In this connection we must revisit Rajendra Prasad where this Court has clarified that the court can exercise power of re- summoning any witness even if it has exercised the said power earlier. Relevant observations of this Court run as under: We cannot therefore accept the contention of the appellant as a legal proposition that the court cannot exercise power of resummoning any witness if once that power was exercised, nor can the power be whittled down merely on the ground that the prosecution discovered laches only when the defence highlighted them during final arguments. The power of the court is plenary to summon or even recall any witness at any stage of the case if the court considers it necessary for a just decision. The steps which the trial court permitted in this case for resummoning certain witnesses cannot therefore be spurned down or frowned at." 20. As the relevant portions of what was held by the Supreme Court in Mohanlal Shamiji Soni (supra), Rajendra Prasad (supra) and Zahira Habibulla H. Sheikh (supra) as regards Section 311 Cr.P.C., have already been quoted in paragraph-13 to 17 of Mannan Shaikh (supra), we do not again quote the same for the sake of avoiding a repetition. 21. From a reading of paragraph 13 to 17 of Mannan Shaikah (supra), it is discernible that:- 1. In order to enable the Court to find out the truth and render a just decision the provisions of Section 311 Cr.P.C. are enacted whereunder any court by exercising its discretionary authority at any stage of the enquiry trial or 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 who is expected to be able to throw light upon the matter in dispute, as because, if judgments are rendered on inchoate, inconclusive and speculative presentation of facts, the ends of justice would be defeated. 2. 2. It should be borne in mind that the provisions of Section 311 Cr.P.C. should be invoked only with the object of discovering relevant facts or obtaining proper proof of such facts for a just decision of the case and it must be used judiciously and not capriciously or arbitrarily and it should not be used for filling up lacuna left by the prosecution or by the defence and the additional evidence cannot be received as a disguise for a retrial or to change the nature of the case against either of the parties. 3. Lacuna in the prosecution must be understood as an inherent weakness or a latent wedge in the matrix of the prosecution case, where normally the advantage should go to the accused, but an oversight in management of the prosecution case cannot be treated as an irreparable lacuna and no party can be foreclosed from the correcting such error and if the 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. 4. Object of Section 311 is to enable the Court to arrive at the truth irrespective of the fact that the prosecution or the defence had failed to produce some evidence which is necessary for a just and proper adjudication and the power can be exercised if the Court feels that there is a necessity to act in terms of Section 311 to sub-serve the cause of justice and public interest. 5. The core proposition laid down by the Supreme Court and as summed up in Mannan Shaikh case would be that the additional evidence brought in under Section 311 should not be allowed to change the nature and character of the case against either of the parties, but it can very well be used to bring out the truth as well as to fill up any lacuna in establishing the existing case which may have been left out either by inadvertence or due to mismanagement by the prosecution. 22. 22. When we look into the facts of the present case, we find that by the order dated 26.04.2019, the learned trial court had required the Controller of Examination of the Board of Secondary Education, Assam for his deposition to be made along with the direction to bring the counterfoil, if any of the Admit Card bearing Roll 817-005, No. 0295 and Registration No. 03/PR/0092/001365/15, and also the records of the register. Such requirement in our view would be in the interest of a proper adjudication of the matter whether the charge under Section 4 of the POCSO Act against the accused petitioner is sustainable and the evidence of the Controller of Examination of Board of Secondary Education, Assam is necessary to establish the age of the prosecutrix. 23. As the accused appellant had already been charged under Section 4 of the POCSO Act and the trial had proceeded as such, a correct determination of the age of the prosecutrix would be more of a requirement to arrive at a just and proper adjudication of the matter and would not in any manner change the nature and character of the case, for or against either of the parties. 24. Accordingly, we do not find any illegality or arbitrariness in the order dated 26.04.2019 summoning the Controller of Board of Secondary Education, Assam with the direction to bring the counterfoil, if any of the Admit Card bearing Roll 817-005, No. 0295 and Registration No. 03/PR/0092/001365/15, along with the records of the register. 25. Criminal petition stands dismissed.