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2022 DIGILAW 158 (JK)

Javaid Ahmad Qadri v. Nazar Mohammad Dar

2022-04-12

SANJAY DHAR

body2022
JUDGMENT : Sanjay Dhar, J. Through the medium of this order, two revision petitions, one filed by the State and the other filed by the complainant, challenging two orders passed by learned Principal Sessions Judge, Pulwama, one dated 08.12.2020 and other dated 07.02.202020, whereby the applications of the prosecution for production of additional witnesses in terms of Section 540 of J&K Cr. P. C, have been declined. 2. Before coming to t be affiliated to Lashker-e-Toiba. The caller threatened that in case the complainant does not pay ransom money of one crore, his son would be killed. The police registered FIR No.169/he grounds urged in these two petitions, a brief background of the facts leading to the filing of these petitions is required to be noticed. 3. On 28.12.2011, complainant Javaid Ahmad Qadri lodged a missing report in respect of his son Kaleem Javaid Qadri with the police. Thereafter on 29.10.2011, he lodged another report with the police to the effect that during the previous night at about 10 PM he had received a phone call from the cell number of his missing son and the caller claimed himself to2011 for offences under Section 365, 387 RPC and started investigation of the case. 4. After conducting the investigation of the case, the police came to the conclusion that the son of the complainant was abducted by the accused as they wanted to take revenge from the abductee. It was also found that the accused hatched a criminal conspiracy to commit murder of the abductee and then make a demand of ransom money from his father. In furtherance of the conspiracy, the abductee was hidden in the house of accused Nos.4 and 5 whereafter he was done to death and his dead body was thrown into the middle of river Jhelum at Seerbagh. During the investigation of the case, on the basis of the disclosure made by the accused, the dead body of the deceased was fished out from the waters of the river by the River Police. Thus, offences under Section 364, 302, 387, 34, 120-B RPC were found established against the accused and the charge sheet was laid before the trial court. 5. Vide order dated 05.03.2012, the learned trial court passed a detailed order and framed charges against the accused for offences under Section 364, 302, 387, 34, 120-B RPC. Thus, offences under Section 364, 302, 387, 34, 120-B RPC were found established against the accused and the charge sheet was laid before the trial court. 5. Vide order dated 05.03.2012, the learned trial court passed a detailed order and framed charges against the accused for offences under Section 364, 302, 387, 34, 120-B RPC. It appears from the record of the trial court that the evidence of the prosecution has been completed and even the statements of the accused under Section 342 of J&K Cr. P. C stand recorded. The case is at the stage of defence evidence/final arguments. 6. Before recording statements of the accused under Section 342 of J&K Cr. P. C and prior to recording of statement of the Investigating Officer, the prosecution moved an application under Section 540 of the J&K Criminal Procedure Code, whereby they sought permission to produce the personnel of River Police who had fished out the dead body of the deceased from the waters of River Jhelum for recording their statements. The said application has been rejected by the learned trial court vide order dated 07.02.2020. Thereafter prosecution, after conclusion of the prosecution evidence and before recording statement of the accused under Section 342 of Cr. P. C, moved another application under Section 540 of J&K Cr. P. C seeking permission to produce and examine the persons who have issued the data relating to call details of the accused, the deceased and other witnesses. Besides this, the prosecution also sought permission to record statement of more witness PW-27. The learned trial court vide its order dated 08.12.2020, while allowing the application to the extent of recording of statement of PW-27, disallowed the prayer regarding production of the officers who had issued the data relating to call details. 7. Both the aforesaid orders have been challenged by the prosecution as well as by the complainant by way of two separate petitions under Section 482 of Cr.P.C 8. It has been contended by the petitioners that the impugned orders passed by the learned trial court are not sustainable in law, inasmuch as the only reason given by for declining the prayer of the prosecution is that the trial has prolonged for more than nine years. It is contended that in terms of the provisions contained in Section 540 of J&K Cr. It is contended that in terms of the provisions contained in Section 540 of J&K Cr. P. C, the court is vested with unfettered powers to call any witness at any stage of the proceedings in order to arrive at a just conclusion. It is also contended that the learned trial court has fallen into an error by observing that after the conclusion of the prosecution evidence, the power under Section 540 of J&K Cr. P. C cannot be exercised. 9. I have heard learned counsel for the parties and perused the record of the case including the trial court record. 10. Before coming to the merits of these petitions and before testing the legality of the impugned orders passed by the learned trial court, it would be apt to notice the provision contained in Section 540 of the J&K Criminal Procedure Code. It 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. 11. From a bare perusal of the aforesaid provision, it is clear that there is no limitation on the power of the Court at any stage to which the trial may have reached from summoning and examining any witness. The expressions used in the provision are “any person and “at any stage of any enquiry, trial or other proceedings” which means that the court has unfettered powers to exercise its jurisdiction under Section 540 of J&K Cr. P. C at any stage of the proceedings, even after the conclusion of the trial before passing of the final judgment. The proceedings come to an end only after the judgment is pronounced. The aforesaid provision is in two parts. The first part is discretionary in nature whereas the second part is mandatory in nature. P. C at any stage of the proceedings, even after the conclusion of the trial before passing of the final judgment. The proceedings come to an end only after the judgment is pronounced. The aforesaid provision is in two parts. The first part is discretionary in nature whereas the second part is mandatory in nature. Thus, a Court may, in its discretion, summon and examine any person as a witness who has not been summoned as a witness or recall/re-examine any person already examined and in case evidence of such person appears to the Court essential to the just decision of the case, it is the bounden duty of the Court to exercise its power under this provision. The object underlying Section 540 of Cr. P. C is that there should be no failure of justice due to mistake of either party in bringing the valuable evidence on record. 12. The Supreme Court in the case of Swapana Kumar Chatterjee vs. Central Bureau of Investigation, (2019) 14 SCC 328 has, while interpreting the provisions contained in Section 311 of Cr.P.C, which is in pari materia with Section 540 of J&K Cr. P. C, observed as under: “10. The first part of this Section which is permissive gives purely discretionary authority to the criminal court and enables it at any stage of inquiry, trial or other proceedings under the Code to act in one of the three ways, namely, (i) to summon any person as a witness; or (ii) to examine any person in attendance, though not summoned as a witness; or (iii) to recall and re-examine any person already examined. The second part, which is mandatory, imposes an obligation on the court (i) to summon and examine or (ii) to recall and re-examine any such person if his evidence appears to be essential to the just decision of the case. 11. It is well settled that the power conferred under Section 311 should be invoked by the court only to meet the ends of justice. The power is to be exercised only for strong and valid reasons and it should be exercised with great caution and circumspection. The court has vide power under this Section to even recall witnesses for reexamination or further examination, necessary in the interest of justice, but the same has to be exercised after taking into consideration the facts and circumstances of each case. The court has vide power under this Section to even recall witnesses for reexamination or further examination, necessary in the interest of justice, but the same has to be exercised after taking into consideration the facts and circumstances of each case. The power under this provision shall not be exercised if the court is of the view that the application has been filed as an abuse of the process of law. 13. From the foregoing enunciation of law on the subject, it is clear that the provisions contained in Section 540 of Cr. P. C aim at strengthening the arms of a court in its quest for discovery of truth. While deciding a prayer for examination of a witness or recall of a person as a witness, the Court has to form an opinion whether his statement is essential for just decision of the case and whether it would lead to discovery of truth. However, the Court has to be alive to the fact that its jurisdiction should not be invoked or exercised for filling up the lacunae in the case of the prosecution or defence, as the case may be. Whether summoning and examination of a witness is for filling up a lacuna or it is for just decision of the case depends on the facts and circumstances of each case. 14. In the light of the foregoing discussion, let us now advert to the facts of the instant case. Through the medium of first application, the prosecution desires to produce Constable Mohammad Amin, Constable Mohammad Yousuf and Follower Farooq Ahmad, the officials of River Police Wing Nehru Park, who, according to the prosecution, fished out the dead body of the deceased from the waters of River Jhelum on the basis of disclosure statements made by the accused. The learned trial court has rejected this application vide its order dated 07.02.2020 on the ground that these persons have not been cited as witnesses in the challan and because the Investigating Officer did not think it necessary to cite these persons as witnesses in the challan, therefore, they are not material witnesses. The learned trial court has further observed that if examination of these three witnesses is allowed, it would prolong trial of the case, particularly when there are other witnesses cited in the challan on this aspect of the matter. 15. The learned trial court has further observed that if examination of these three witnesses is allowed, it would prolong trial of the case, particularly when there are other witnesses cited in the challan on this aspect of the matter. 15. In the second application, the prosecution has sought permission to produce and examine Shri Munish Bindra, Nodal Officer, Airtel, Shri Jameel-u-Rehman Bhat, Nodal Officer Airtel and Shri Ravinder Dhar, Nodal Officer, Reliance, as witnesses. While dealing with this application, in its order dated 08.12.2020, the learned trial court has observed that because prosecution had no difficulty in producing these witnesses, it is not, therefore, open to them to produce these witnesses when statements of the accused under Section 342 of Cr. P. C stand already recorded. According to the learned trial court, the prosecution has woken up from deep slumber after the case has reached the stage of final arguments and on this ground, the prayer of the prosecution has been declined. 16. Learned counsel appearing for the accused/respondents has defended the impugned orders passed by the learned trial court by contending that the prosecution by seeking to produce these witnesses is only trying to fill up the lacunae in its case which cannot be allowed. He has contended that the accused have, in their statements recorded under Section 342 of Cr. P. C, disclosed their defence and, as such, if the prosecution is allowed to examine these witnesses, it would cause grave prejudice to the accused. 17. As already noted, that power under Section 540 of Cr. P. C can be exercised by a Court at any stage of the proceedings. Therefore, the observation of the learned trial court that the applications of the prosecution cannot be allowed because the case is at final stage of arguments is not legally tenable. The learned trial court while passing the impugned orders has nowhere stated that the evidence sought to be produced by the prosecution is not relevant to the case or that the same is not essential for justice decision of the case. Without recording any finding on these two material aspects, the learned trial court has proceeded to reject the applications of the prosecution on extraneous grounds like prolonged trial and that the said witnesses have not been cited in the challan by the Investigating Officer. Without recording any finding on these two material aspects, the learned trial court has proceeded to reject the applications of the prosecution on extraneous grounds like prolonged trial and that the said witnesses have not been cited in the challan by the Investigating Officer. While dealing with the applications of the prosecution, it was incumbent upon the learned trial court to address the issue on the touchstone of the principles governing grant or refusal of an application under Section 540 of Cr. P. C, as have been discussed hereinbefore. 18. As already noted, it has been contended by the learned counsel for the respondents that the prosecution has filed these applications to fill up the lacuna in their case. In this regard it would be apt to refer to the judgment of the Supreme Court in the case of Rajendra Prasad v. Narcotic Cell, (1996) 6 SCC 110, in which the term “lacuna” in the prosecution case has been explained 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 trail of the case, but an over sight in the management of the prosecution cannot be treated as irreparable lacuna. No parry in a trial can before-closed 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. 19. Now coming to the instant case, it is already indicated in the charge sheet that the dead body of the deceased was fished out by the officials of the River Police. There are statements of the witnesses recorded under Section 161 of Cr. P. C. as also the statements of the witnesses recorded during trial of the case which go on to suggest that the dead body of the deceased was fished out from the water by the officials of the River Police. There are statements of the witnesses recorded under Section 161 of Cr. P. C. as also the statements of the witnesses recorded during trial of the case which go on to suggest that the dead body of the deceased was fished out from the water by the officials of the River Police. So, it is not a case where the accused have been caught universe and by surprise by introduction of the officials of the River Police as witnesses. Inadvertently, the Investigating Officer may have omitted to cite these persons as witnesses in the challan but this inadvertent mistake on the part of Investigating Officer in a case of heinous crime like murder of a young man cannot be taken advantage of by the accused. Such inadvertent errors, in the backdrop of the fact that the presence of the officials of the River Police finds mention in the challan, cannot be termed as an inherent defect so as to qualify as ‘lacuna’ in the prosecution case. 20. It is the duty of the Court to dig out the truth and reach to a just conclusion. A court cannot be a mute spectator and allow the mistake of an Investigating Officer to benefit the accused. As has been clearly laid down by the Supreme Court in the case of Rajendra Prasad (supra), 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 has to permit rectification of such mistakes. Therefore, it was not open to the learned trial court to foreclose the opportunity of the prosecution to correct the inadvertent errors. 21. In Mohanlal Shamji Soni v. Union of India and anr. AIR 1991 SC 1346 , the Supreme Court has, while examining the scope of Section 311 of the Code of Criminal Procedure, held that the Court has power to summon those witnesses who are expected to be able to throw light upon the matter in dispute. 22. Again, in Rajeswar Prasad Misra v. The State of West Bengal and anr. AIR 1991 SC 1346 , the Supreme Court has, while examining the scope of Section 311 of the Code of Criminal Procedure, held that the Court has power to summon those witnesses who are expected to be able to throw light upon the matter in dispute. 22. Again, in Rajeswar Prasad Misra v. The State of West Bengal and anr. AIR 1965 SC 1887 , the Supreme Court has observed that it may not be possible for the legislature to foresee all situations and possibilities and, therefore, the court must examine the facts and circumstances of each case before it and if it comes to the conclusion that additional evidence is necessary and in doing so, the court would not consider whether it is impossible to pronounce the judgment without this evidence but it should bear in mind whether it would amount to failure of justice without such evidence being considered. 23. In the instant case, as already noted, the statements of the officials of River Police are essential for establishing that the dead body of the deceased was recovered from the waters of River Jhelum. Similarly, the statements of the concerned officers of the service providers of the cell phones that were being used by the accused and the deceased as also the material prosecution witnesses including the father of the deceased during the time when the occurrence took place, are also essential to establish the conspiracy. The call data records of these cell phones form part of the challan and, as such, the accused would not be caught by surprise if the aforesaid officers of the service providers are examined to prove these call data records. 24. All the aforesaid aspects have not been considered by the trial court while declining the prayer of the prosecution. The impugned orders of the trial court are, therefore, not sustainable in law. 25. Accordingly, both the petitions are allowed and the two impugned orders passed by learned trial court to the extent of declining the prayer for summoning and examination of officials of River Police and officers of the service providers of Telecom companies, are set aside. The learned trial court is directed to summon and examine all the above witnesses and conclude the trial of the case expeditiously, preferably within a period of two months from the date a copy of this order is made available to the trial court. The learned trial court is directed to summon and examine all the above witnesses and conclude the trial of the case expeditiously, preferably within a period of two months from the date a copy of this order is made available to the trial court. The prosecution is directed to extend all necessary cooperation to the trial court in this regard. 26. A copy of this order be sent to the learned trial court for information and compliance.