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2020 DIGILAW 437 (UTT)

Nishant Kumar v. State Of Uttarakhand

2020-11-05

RAVINDRA MAITHANI

body2020
JUDGMENT Ravindra Maithani, J. - Petitioner seeks quashing of orders dated 10th September, 2020 and 8th October, 2020, passed in Sessions Trial No. 01 of 2019, State vs. Dalip Sahni and others, pending in the Court of District and Sessions Judge, Pauri Garhwal ('the case'). 2. Heard learned counsel for the parties through video conferencing. 3. Facts necessary to understand the controversy, briefly stated, are that the Sessions Trial was pending disposal and 10th September, 2020, was fixed for delivery of Judgment. On that date, the court observed that certain documents including photographs were though filed by the prosecution, but they were not proved. The court passed an order on that date and asked the prosecution to explain it as to why those documents were not proved. Soon thereafter, an application was moved by the prosecutor for summoning three witnesses to prove those documents. The petitioner filed objection against the application. The Court vide order dated 8th October, 2020, allowed the application under Section 311 of the Code of Criminal Procedure, 1973 (for short "The Code"), and, summoned three witnesses for their examination. 4. Learned counsel for the petitioner would argue that the Sessions Trial was fixed for judgment on 10th September, 2020. The documents, which were not proved till then, were nothing new to the prosecution. Those documents had already been filed by the prosecution and those were on record. By summoning the three witnesses, namely, Preetam Singh, Pradeep Kumar and Hargovind Singh Negi, out of which, except Hargovind Singh Negi, the remaining two had already been examined by the prosecution in the Sessions Trial, the prosecution wants to fill up the lacuna which is not permissible in law. In support of his contention, learned counsel also placed reliance on the principles of law as laid down in the case of Rajaram Prasad Yadav Vs. State of Bihar and another, (2013) 14 SCC 461 and Mannan Saikh and others Vs. State of West Bengal and another, (2014) 13 SCC 59 . 5. In the case of Mannan Shaikh (supra), the Hon'ble Supreme Court interpreted the provision of Section 311 of the Code, and in para 12 observed as hereunder:- "12. The aim of every court is to discover truth. State of West Bengal and another, (2014) 13 SCC 59 . 5. In the case of Mannan Shaikh (supra), the Hon'ble Supreme Court interpreted the provision of Section 311 of the Code, and in para 12 observed as hereunder:- "12. 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 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 re-examination 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 untrammelled 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." 6. In the case of Rajaram Prasad Yadav (supra) also, the Hon'ble Supreme Court interpreted the scope of Section 311 of the Code and in para 17 held as hereunder:- " 17. It is for the court to consider all the circumstances and decide whether the prayer for recall is genuine." 6. In the case of Rajaram Prasad Yadav (supra) also, the Hon'ble Supreme Court interpreted the scope of Section 311 of the Code and in para 17 held as hereunder:- " 17. From a conspectus consideration of the above decisions, while dealing with an application under Section 311 CrPC read along with Section 138 of the Evidence Act, we feel the following principles will have to be borne in mind by the courts: 17.1. Whether the court is right in thinking that the new evidence is needed by it? Whether the evidence sought to be led in under Section 311 is noted by the court for a just decision of a case? 17.2. The exercise of the widest discretionary power under Section 311 CrPC should ensure that the judgment should not be rendered on inchoate, inconclusive and speculative presentation of facts, as thereby the ends of justice would be defeated. 17.3. 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 person. 17.4. 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 for such facts, which will lead to a just and correct decision of the case. 17.5. The exercise of the said power cannot be dubbed as filling in a lacuna in a 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. 17.6. The wide discretionary power should be exercised judiciously and not arbitrarily. 17.7. The court must satisfy itself that it was in every respect essential to examine such a witness or to recall him for further examination in order to arrive at a just decision of the case. 17.8. The object of Section 311 CrPC simultaneously imposes a duty on the court to determine the truth and to render a just decision. 17.9. The court must satisfy itself that it was in every respect essential to examine such a witness or to recall him for further examination in order to arrive at a just decision of the case. 17.8. The object of Section 311 CrPC simultaneously imposes a duty on the court to determine the truth and to render a just decision. 17.9. The court arrives at the conclusion that additional evidence is necessary, not because it would be impossible to pronounce the judgment without it, but because there would be a failure of justice without such evidence being considered. 17.10. Exigency of the situation, fair play and good sense should be the safeguard, while exercising the discretion. The court should bear in mind that no party in a 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. 17.11. The court should be conscious of the position that after all the trial is basically for the prisoners and the court should afford an opportunity to them in the fairest manner possible. In that parity of reasoning, it would be safe to err in favour of the accused getting an opportunity rather than protecting the prosecution against possible prejudice at the cost of the accused. The court should bear in mind that improper or capricious exercise of such a discretionary power, may lead to undesirable results. 17.12. The additional evidence must not be received as a disguise or to change the nature of the case against any of the party. 17.13. The power must be exercised keeping in mind that the evidence that is likely to be tendered, would be germane to the issue involved and also ensure that an opportunity of rebuttal is given to the other party. 17.14. The power under Section 311 CrPC must therefore, be invoked by the court only in order to meet the ends of justice for strong and valid reasons and the same must be exercised with care, caution and circumspection. 17.14. The power under Section 311 CrPC must therefore, be invoked by the court only in order to meet the ends of justice for strong and valid reasons and the same must be exercised with care, caution and circumspection. The court should bear in mind that fair trial entails the interest of the accused, the victim and the society and, therefore, the grant of fair and proper opportunities to the persons concerned, must be ensured being a constitutional goal, as well as a human right." (Emphasis Supplied) 7. On the other hand, learned counsel for the State argued that the documents were also part of the record in the Sessions Trial, which, inadvertently could not be proved by the earlier prosecutor. Therefore, when the court indicated the deficiency, immediately, an application for summoning the witnesses was moved, which has rightly been allowed. 8. In criminal trial, the search is always for truth. The court is not there to count the mistakes of the parities, either the prosecution or the defence. The court has to dispense justice. Section 311 of the Code is much vide in its implication. It is as hereunder:- " 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, 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 to be essential to the just decision of the case." 9. Much need not be stated about this Section 311 of the Code. Suffice to say, the second part of this Section makes it mandatory to the court to summon and examine, recall or re-examine and such person, if his evidence appears to be it to be essential to the just decision of the case. "Just decision of the case is the crux of the matter. Whatever is required for a just decision, the court is empowered to summon, recall or examine such witnesses. Re- examination of witnesses in all cases cannot be said to be filling up of lacuna. "Just decision of the case is the crux of the matter. Whatever is required for a just decision, the court is empowered to summon, recall or examine such witnesses. Re- examination of witnesses in all cases cannot be said to be filling up of lacuna. In the case of Rajaram (supra) in para 17.5 above, the Hon'ble Supreme Court observed that "the exercise of the said power cannot be dumped as filling in a lacuna in a prosecution case, unless the facts and circumstances of the case makes it apparent that the exercise of the power of the court would result in causing serious prejudice to the accused resulting in miscarriage of justice." 10. In the instant case, there is no question of any prejudice of miscarriage of justice. The trial is still pending. At the time of judgment, some facts were considered by the court and the court in its order dated 10th September, 2020, categorically observed that the documents mentioned in the order may be considered for effective and just decision of the case. Pursuant to it, an application was moved, which was allowed. There appears to be nothing wrong in the impugned orders. Therefore, this Court is of the view that there is no merit in this petition and it deservers to be dismissed. 11. The petition is dismissed.