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2020 DIGILAW 80 (CAL)

Jagjit Singh v. State Of West Bengal

2020-01-21

MADHUMATI MITRA

body2020
JUDGMENT Madhumati Mitra, J. - This criminal revision is directed against the order dated 05.09.2019 passed by the Learned Additional Sessions Judge, 5th Court, Barasat, North 24 Parganas in Session Trial No.10 of 2018 arising out of Baguiati Police Station, Case No.342 of 2017 dated 05.05.2017, under Sections 370/370A(2)/506(2)/370(3)/120B of the Indian Penal Code. 2. By the impugned order dated 05.09.2019, the Learned Trial Judge rejected the prayer of the present petitioner under Section 311 of the Code of Criminal Procedure for recalling prosecution witnesses i.e.P.W.Nos.1 to 5. 3. A charge-sheet bearing no.664 of 2017 dated 31.07.2017, under Sections 370/370A(2)/506(2)/370(3)/120B of the Indian Penal Code was submitted against the present petitioner and four others. Charges have been framed under the above mentioned Sections against the present petitioner and others. 4. From the materials placed on record as well as from the submissions made by Learned Counsel appearing for the parties it transpires that most of the prosecution witnesses have been examined and cross-examined in full. 5. During trial on 17.08.2019 and 25.07.2019, the present petitioner who is facing trial filed four separate applications under Section 311 of the Code of Criminal Procedure seeking permission for further cross-examination of prosecution witnesses no.1,2,3,4 and 5 on recall. 6. The Learned Trial Judge by the impugned order dated 05.09.2019, turned down the prayer of the petitioner for further cross-examination of prosecution witnesses no.1,2,3,4 & 5 on recall after, observing that the petitioner had prayed for examination of five prosecution witnesses on recall after 14 months from the date of examination of P.W.Nos.1 to 3 and had failed to assign believable or cogent reasons for not asking the questions which were mentioned in the said applications. In the said impugned order, Learned Trial Judge also observed that there were no reasons as to why those questions were not put to the witnesses when they were cross-examined extensively by the Learned Lawyers for each of the accused persons. 7. Learned Senior Advocate for the petitioner has assailed the impugned order of rejection of the prayer of the petitioner under Section 311 of the Code of Criminal Procedure on the ground that Learned Trial Judge while passing the impugned order has completely overlooked the provisions contained in Section 311 of the Code of Criminal Procedure. 7. Learned Senior Advocate for the petitioner has assailed the impugned order of rejection of the prayer of the petitioner under Section 311 of the Code of Criminal Procedure on the ground that Learned Trial Judge while passing the impugned order has completely overlooked the provisions contained in Section 311 of the Code of Criminal Procedure. According to his contention, no party in a trial can be foreclosed from correcting errors and 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 mistake to be rectified. 8. In support of his contention, Learned Counsel for the petitioner has submitted that the petitioner sought for permission before the Learned Trial Court to cross-examine the prosecution witnesses no.1 to 5 on recall, on the basis of the guidelines issued by this High Court on 22.12.2015 in Writ Petition No.27394(W) of 2015 and the cross-examination of those witnesses is necessary to disprove the allegations levelled against the present petitioner. He has further contended that it was the specific defence case that de facto complainant i.e. prosecution witness no.1 was never an employee dancer of the bars in question and as such she is required to be cross-examined on the basis of the guidelines issued by this High Court in connection with that writ petition. 9. It has been specifically contended by the Learned Counsel appearing for the petitioner that the petitioner could not cross-examine the prosecution witnesses on the basis of the order passed in the writ petition No.2739 (W) of 2015 as everything including those orders was seized by the police after FIR was lodged by the de facto complainant against the petitioner and others. It has been contended by the Learned Counsel for the petitioner that the petitioner for his proper defence should be allowed to put few questions as mentioned in the applications relating to the feature of the Sun Set Bar otherwise the interest of the petitioner would be highly prejudiced. The questions which the petitioner intended to put the prosecution witnesses being P.W.Nos.1 to 5 had been mentioned in the applications for their further cross-examination on recall. The questions which the petitioner intended to put the prosecution witnesses being P.W.Nos.1 to 5 had been mentioned in the applications for their further cross-examination on recall. Learned Counsel has laid stress on the ground that further cross examination of those witnesses on recall is necessary not to fill up the lacuna in the defence case but to unearth the truth which is very much necessary for just decision of the case. 10. In support of his contention, the Learned Counsel for the petitioner has placed his reliance on the following decisions:- 1) P.Sanjeeva Rao Vs. State of Andhra Pradesh, (2012) 7 SCC 56 , 2) Rajaram Prasad Yadav Vs. State of Bihar and Another, (2013) 14 SCC 461 . 11. On the other hand, the Learned Public Prosecutor appearing for the State has vehemently opposed the prayer of the petitioner to recall the prosecution witnesses being No.1 to 5 for further cross-examination on the ground that the plea to recall of the prosecution witnesses by the accused/petitioner is not at all bona fide. He has specifically contended that the petitioner approached before the Learned Court below for recall of the prosecution witnesses after change of the defence counsel. According to his contention, change of defence counsel cannot be a ground to recall of witnesses for further cross-examination. He has submitted that the petitioner had got ample opportunity to examine the prosecution witnesses and the prosecution witnesses were cross-examined by the defence at length. He has raised doubt regarding the bona fide on the part of defence in filing the applications before the Learned Trial Judge for further crossexamination of the prosecution witnesses no.1 to 5, on the ground that the copy of the order passed in writ petition No.2739(W) of 2015 and subsequent orders passed by the District Magistrate in pursuance of the directions of the High Court are easily available in the website of the High Court/and Government of West Bengal. The ground for delay in preferring the application for recall of the prosecution witnesses no.1 to 5 cannot be entertained. He has forcefully contended that these witnesses are vulnerable witnesses and accused was granted bail after completion of the evidence of these witnesses. The ground for delay in preferring the application for recall of the prosecution witnesses no.1 to 5 cannot be entertained. He has forcefully contended that these witnesses are vulnerable witnesses and accused was granted bail after completion of the evidence of these witnesses. Recalling of those witnesses without any cogent and bona fide ground for further crossexamination on the basis of the prayer to recall of the prosecution witnesses who have already been examined may demolish their evidence already adduced before the Court. Learned counsel for the State has laid stress on the ground that the prosecution witnesses whom the petitioner intended to further cross-examine on recall are all vulnerable witnesses and it is not expected that those witnesses will face the hardship of appearing in court repeatedly, particularly in sensitive cases such as the present one. In support of his contention, the Learned Public Prosecutor has invited the attention of the court to the series of orders passed by the Division Bench of this Court in C.R.M. No.657of 2018, has submitted that the Division Bench of this Court directed the Trial Court to insure the attendance of the prosecution witnesses particularly, the victim and to record their evidence in the schedule fixed before it, without fail and investigating agency was directed to take all necessary steps to give protection of the victim with instill confidence in her, that she might depose before the Trial Court. 12. Learned public prosecutor has also contended that the accused were granted bail on the ground that the vulnerable witnesses have already been examined. The Learned Public Prosecutor has further contended that the impugned order is a speaking order passed by the Learned Trial Judge considering all the aspects and came to his conclusion that there was no ground to allow the petitioner for further cross-examination of prosecution witnesses no.1 to 5 when the Trial was going to be concluded very soon as per direction of the Hon'ble High Court. 13. In support of his contention, the Learned Public Prosecutor has placed his reliance in the decision of State (NCT of Delhi), Vs. Shiv Kumar Yadav and Another, (2016) 1 SCC(Cri) 510 , State of Haryana Vs. Ram Mehar and Others, (2016) 3 SCC(Cri) 577 , and Ratanlal Vs. Prahlad Jat and Others, (2017) 3 SCC(Cri) 729 . 14. 13. In support of his contention, the Learned Public Prosecutor has placed his reliance in the decision of State (NCT of Delhi), Vs. Shiv Kumar Yadav and Another, (2016) 1 SCC(Cri) 510 , State of Haryana Vs. Ram Mehar and Others, (2016) 3 SCC(Cri) 577 , and Ratanlal Vs. Prahlad Jat and Others, (2017) 3 SCC(Cri) 729 . 14. I have given my anxious consideration to the rival submissions for the parties and the materials placed on record. I have also perused the decisions cited by the Learned Counsel appearing for both the parties. 15. From the materials placed on record as well as from the submission made by the Learned Counsel for the parties it appears that the petitioner is facing trial for commission of the alleged offences punishable under Sections 370/370A(2)/506(2)/370(3)/120B of the Indian Penal Code. 16. The allegations contained in the First Information Report in a nutshell are that the present petitioner was one of the kingpins of an organized racket and sexually exploited women in the dance bars. 17. The witnesses whom the petitioner intended to further cross-examine on recall had been examined and cross-examined in full long back. 18. It is true that exercise of power under Section 311 of the Code of Criminal Procedure can be sought to be invoked either by prosecution or by defence or by the Court itself. At the time of invoking the power under Section 311 of the Code of Criminal Procedure the court should form an opinion that exercise of such power is necessary for just decision of the Court. 19. Three separate applications were filed by the present petitioners on 17.08.2019 and one application was filed on 25.07.2019 for further crossexamination of prosecution witness Nos. 1 to 5 on recall. Applications filed by the present petitioner before the Learned Trial Court have been annexed to the present Revisional Application. In his applications before the Learned Court below the petitioner sought for permission to cross-examine the prosecution witness Nos. 1 to 5 on the ground that at the time of their cross-examination the petitioner was not aware about the order of the High Court in W.P. 27394(W) of 2015 and the order of District Magistrate, North 24 Parganas etc. In his applications before the Learned Court below the petitioner sought for permission to cross-examine the prosecution witness Nos. 1 to 5 on the ground that at the time of their cross-examination the petitioner was not aware about the order of the High Court in W.P. 27394(W) of 2015 and the order of District Magistrate, North 24 Parganas etc. It was stated by the petitioner in his applications for recall certain questions relating to the affairs and characteristics of the Sun Set Bar were required to be asked to the P.W.Nos.1 to 5. 20. Copy of the order dated 22.12.2019 passed in connection with W.P. 27394(W) of 2015 has also been annexed to the present application. 21. From the copy of said order it transpires that certain guidelines were laid down for all concerned to adhere till such time appropriate legislation was enacted to regulate dance performance in bars/hotels consistent with the avowed object of protection of the dignity of women performers. West Bengal Foreign Liquor C.S. off & on shop and Hotel owners Association and Anr. were the petitioners of the above mentioned writ petition. 22. During the course of hearing Learned Counsel for the petitioner has vehemently contended that it was the specific defence of the petitioner before the Learned Trial Court that the defacto complainant or the victim girls was/were never employed in the dance bars as dancer/dancers and as such they are required to be cross-examined further on the basis of the order passed in connection with the above mentioned writ petition. 23. From Annexure P-3 at pages 49 to 52 it appears that the present petitioner was granted bail in CRM 3259 of 2018 on the ground that most of the vulnerable witnesses were examined by the Learned Trial Court. From the Annexure P-7 at pages 80 to 100 it further transpires that several guidelines were laid down by this Court in W.P No. 27394(W) of 2015 to be adhered to regulate dance performance in bars/hotels for the protection of the dignity of women performers. That means the bars and hotels where the dance is being performed are under an obligation to follow the guidelines issued by the High Court on December 22, 2015 in connection with the writ petition. 24. In his applications made before the Learned Trial Court the petitioner claimed that further cross-examination of the prosecution witnesses Nos. That means the bars and hotels where the dance is being performed are under an obligation to follow the guidelines issued by the High Court on December 22, 2015 in connection with the writ petition. 24. In his applications made before the Learned Trial Court the petitioner claimed that further cross-examination of the prosecution witnesses Nos. 1 to 5 is necessary on the basis of the guidelines issued by the High Court in connection with the writ petition. 25. In the instant case the allegation against the present petitioner is that young girls were being sexually exploited in the dance Bar which was run by the petitioner. In order to protect the dignity of the dance performer High Court issued guidelines which are required to be followed by the persons who run the dance bars. The women/girls used to perform dance in the bar/hotels were not supposed to know the guidelines. The plea taken by the petitioner to crossexamine the witnesses on the basis of the guidelines has no relevancy in the present case. Moreso, the guidelines were issued in the month of December, 2015 and the criminal proceedings were initiated against the petitioner in the year 2017. 26. In the decision of Rajaram Prasad Yadav Versus State of Bihar and Another, (2013) 14 SCC 461 , our Apex Court observed as under:- "14. A conspicuous reading of Section 311 CrPC 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 prefix 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 prefix 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. The order of re-examination is also prescribed calling for such a witness so desired for such re-examination. Section 138 of the Evidence Act, prescribed the order of examination of a witness in the court. The order of re-examination is also prescribed calling for such a witness so desired for such re-examination. Therefore, a reading of Section 311 CrPC 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 CrPC. It is, therefore, imperative that the invocation of Section 311 CrPC 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 reexamination of any person already examined is concerned, 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." 27. It is true that each case has to be judged on its own merit. At the time of considering any prayer to recall a witness for further examination, the Court must satisfy itself that such examination is necessary for just decision of the Court. While considering such prayer to recall of the witness, the Court must see that such additional evidence should not be received as a disguise or change the nature of the case against any of the party. While considering such prayer to recall of the witness, the Court must see that such additional evidence should not be received as a disguise or change the nature of the case against any of the party. At the same time, it should not be overlooked by the Court 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. 28. In the decision of P.Sanjeeva Rao Versus State of Andhra Pradesh, (2012) 7 SCC 56 , our Apex Court at paragraph 22 observed as under: "22. Discovery of the truth is the essential purpose of any trial or enquiry, observed a three-Judge Bench of this Court in Maria Margarida Sequeira Fernandes v. Erasmo Jack de Sequeira, (2012) 5 SCC 370 : (2012) 3 SCC (Civ) 126] . A timely reminder of that solemn duty was given in the following words: (SCC p. 384, para 35) "35. 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." 29. In the present case, the petitioner being the owner of Bars had knowledge about the guidelines which were/are required to be observed by the dance Bar. As such, the contention of the petitioner, that the Learned Advocate for the petitioner was prevented to ask questions to the witnesses during their crossexamination due to non-availability of the documents has no basis at all. Moreso, in his applications the petitioner stated that the Investigating Officer took all those original documents from the Sun Set Bar and locked the said Bar and for that reason the petitioner's inmates could not collect the documents. That means the petitioner had the knowledge about the existence of the documents and with whom those documents were lying. Petitioner took about 14 months to pray for recall though he had knowledge with whom the documents were lying. 30. The power under Section 311 of the Code of Criminal Procedure must be invoked by the Court only when the Court is satisfied that the exercise of such power is required to meet the ends of justice. Petitioner took about 14 months to pray for recall though he had knowledge with whom the documents were lying. 30. The power under Section 311 of the Code of Criminal Procedure must be invoked by the Court only when the Court is satisfied that the exercise of such power is required to meet the ends of justice. At the time of exercising such power the Court must take care and caution. In the present case, the delay in preferring the applications for recalling the prosecution witnesses was not at all trust worthy. 31. In this connection, the decision of our Apex Court in Ratanlal Versus Prahlad Jat and Others, (2017) 3 SCC(Cri) 729 may be cited. In paragraph 21 of the said decision, our Apex Court held that the delay in filing the application is one of the important factors which has to be explained in the application. 32. In paragraph 21 of the said judgment the Apex Court quoted paragraph 38 of the judgment of Umar Mohammad Vs. State of Rajasthan, (2007) 14 SCC 711 : 21. The delay in filing the application is one of the important factors which has to be explained in the application. In Umar Mohammad v. State of Rajasthan [ Umar Mohammad v. State of Rajasthan, (2007) 14 SCC 711 : (2009) 3 SCC (Cri) 244] , this Court has held as under: (SCC p. 719, para 38) 33. Paragraph 38 of the said judgment is as under: "38. Before parting, however, we may notice that a contention has been raised by the learned counsel for the appellant that PW 1 who was examined in Court on 5-7-1994 purported to have filed an application on 1-5-1995 stating that five accused persons named therein were innocent. An application filed by him purported to be under Section 311 of the Code of Criminal Procedure was rejected by the learned trial Judge by order dated 13-5- 1995. A revision petition was filed thereagainst and the High Court also rejected the said contention. It is not a case where stricto sensu the provisions of Section 311 of the Code of Criminal Procedure could have been invoked. The very fact that such an application was got filed by PW 1 nine months after his deposition is itself a pointer to the fact that he had been won over. It is not a case where stricto sensu the provisions of Section 311 of the Code of Criminal Procedure could have been invoked. The very fact that such an application was got filed by PW 1 nine months after his deposition is itself a pointer to the fact that he had been won over. It is absurd to contend that he, after a period of four years and that too after his examination-in-chief and cross-examination was complete, would file an application on his own will and volition. The said application was, therefore, rightly dismissed." 34. In the present case, the petitioner failed to show that prayer for recall was bona fide and necessary for ensuring fair trial. In view of above, I do not find any reason to interfere with the impugned order passed by the Learned Court below. 35. The present revisional application is devoid of merit and stands dismissed. 36. Urgent certified photocopy of this judgment and order, if applied for, be supplied to the parties upon compliance with all requisite formalities.