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2022 DIGILAW 59 (UTT)

Anirudha Bhatt v. State of Uttarakhand

2022-03-25

RAVINDRA MAITHANI

body2022
JUDGMENT : RAVINDRA MAITHANI, J. 1. The petitioner lodged an FIR on 23.10.2015, at Police Station Mallital, District Nainital, under Sections 341, 323 and 506 of IPC. Based on which, Case Crime No. 57 of 2015 was lodged. It appears that the police, after investigation, submitted charge-sheet and proceedings of the Criminal Case No. 18 of 2016, State vs. Amardeep Mann and Others were instituted, in the court of Chief Judicial Magistrate Nainital (for short “the case”). In the case, applications under Section 311 of the Code of Criminal Procedure, 1973 (for short “the Code”) were filed, which were rejected. The history of these applications is as hereunder: (i) Initially, the application under Section 311 of the Code was filed by the prosecution, which was rejected vide order dated 15.01.2020. (ii) The order dated 15.01.2020, passed in the case was unsuccessfully challenged by the State, in Criminal Revision No. 21 of 2020, State vs. Amardeep Maan and Others. (iii) In between the petitioner sought permission to intervene in the prosecution. He moved an application under Section 302 of the Code. Thereafter, he moved another application under Section 311 of the Code, which was rejected by the order dated 04.12.2021. 2. Initially, the petitioner sought quashing of the order dated 04.12.2021, passed in the case, but subsequently by way of amendment, the petitioner has also sought quashing of the order dated 15.01.2020, and order dated 18.02.2020, passed in Criminal Revision No. 21 of 2020, State vs. Amardeep Mann and Others by the court of Additional Sessions Judge, Nainital. 3. Heard learned counsel for the parties and perused the record. 4. Facts in little detail necessary to appreciate the controversy are as follows. 5. According to FIR lodged by the petitioner, on 23.10.2015, at about 9.30 PM, he was assaulted mercilessly by the private respondents. He sustained injuries. On the same day, he was medically examined at B.D. Pandey Hospital, Nainital by PW-2 Dr. B.S. Dugtal. According to the petitioner, on 24.10.2015, he was further examined by ENT expert and his x-ray was done. The x-ray report was given on 27.10.2015 by PW-3 Dr. R.K. Verma. PW-2 Dr. B.S. Dugtal was examined in the case on 21.12.2016, and PW-3 Dr. R.K. Verma was examined in the case on 13.12.2017. B.S. Dugtal. According to the petitioner, on 24.10.2015, he was further examined by ENT expert and his x-ray was done. The x-ray report was given on 27.10.2015 by PW-3 Dr. R.K. Verma. PW-2 Dr. B.S. Dugtal was examined in the case on 21.12.2016, and PW-3 Dr. R.K. Verma was examined in the case on 13.12.2017. During the pendency of the trial, initially, the State moved an application under Section 311 of the Code, so that radiologist may be re-examined. It was so requested, because on the x-ray report given by PW-3 Dr. R.K. Verma, which is Ex-A5, there were two dates on the column of date, namely, 24.10.2015 and 27.10.2015. Initially, the application was rejected on 15.01.2020 and revision against it was also dismissed. 6. After closure of the prosecution evidence, the private respondents have already been examined under Section 313 of the Code. It is at this stage, the petitioner, who is the informant/victim, moved another application under Section 311 of the Code. It has also been rejected on 04.12.2020. All these are impugned. 7. Learned counsel for the petitioner would submit that in the x-ray report Ex-A5 prepared by PW-3 Dr. R.K. Verma, the right hand side, on top of it, there are two dates i.e. 24.10.2015 and 27.10.2015. PW-3 Dr. R.K. Verma was asked as to why there are two dates on the x-ray report given by him? But, he could not explain it. Based on the x-ray report Ex-A5, a supplementary report was given by PW-2 Dr. B.S. Dugtal. He was also asked about the two dates, mentioned in the x-ray report Ex-A5, but, he could not explain it. Therefore, it is argued that in order to clarify the two dates, as recorded in Ex- A5, the application filed by the petitioner ought to have been allowed, but the court below committed an error in rejecting this application. 8. On the other hand, learned Senior Counsel appearing for the private respondents would submit that allowing or not allowing the application under Section 313 of the Code is totally within the discretion of the Magistrate; such applications cannot be allowed to fill up the lacuna in the case. Learned Senior Counsel would submit the following arguments as well, in his submissions: (i) The petitioner has no locus-standi to move such an application. Learned Senior Counsel would submit the following arguments as well, in his submissions: (i) The petitioner has no locus-standi to move such an application. It is argued that an application under Section 302 of the Code as filed by the petitioner has yet not been decided by the court below. Therefore, without having been permitted to prosecute with the case, the petitioner could not move such application under Section 311 of the Code. (ii) PW-3 Dr. R.K. Verma was examined on 13.12.2017 and long thereafter the application under Section 311 of the Code has been filed. It is much delayed. The only purpose is to protract the trial. (iii) Even, if the petitioner is permitted to reexamine any witness, it can be in the nature of examination-in-chief. Leading questions cannot be asked by the petitioner in examination of any of the witnesses. Therefore, no purpose would be served, even if, any witness is recalled for re-examination. (iv) Ex-A5, the x-ray report has already been exhibited and it has to be read, as such. During the course of argument, it has to be interpreted. 9. This is a petition under Section 482 of the Code. This is a jurisdiction which is much wide, but also guided by the directions, as laid down in the catena of the decisions by the Hon’ble Supreme Court. The basic principle, which guides this jurisdiction is “when the law gives anything to anyone, it gives also all those things without which the things itself to be unavailable.” This inherent power is in the nature of ex debito justitiae - to do that real and substantial justice for the administration of which alone it exists or to prevent abuse of the process of the court. These concepts have been defined by the Hon’ble Supreme Court in the case of Dinesh Dutt Joshi vs. State of Rajasthan and Another, (2001) 8 SCC 570 . The Hon’ble Supreme Court observed as hereunder: “6. Section 482 of the Code of Criminal Procedure confers upon the High Court inherent powers to make such orders as may be necessary to give effect to any order under the Code, or to prevent abuse of the process of any court or otherwise to secure the ends of justice. The Hon’ble Supreme Court observed as hereunder: “6. Section 482 of the Code of Criminal Procedure confers upon the High Court inherent powers to make such orders as may be necessary to give effect to any order under the Code, or to prevent abuse of the process of any court or otherwise to secure the ends of justice. It is a well-established principle of law that every court has inherent power to act ex debito justitiae - to do that real and substantial justice for the administration of which alone it exists or to prevent abuse of the process of the court. The principle embodied in the section is based upon the maxim: quando lex aliquid alicui concedit, concedere videtur et id sine quo res ipsae esse non potest i.e. when the law gives anything to anyone, it gives also all those things without which the thing itself would be unavailable. The section does not confer any new power, but only declares that the High Court possesses inherent powers for the purposes specified in the section. As lacunae are sometimes found in procedural law, the section has been embodied to cover such lacunae wherever they are discovered. The use of extraordinary powers conferred upon the High Court under this section are however required to be reserved, as far as possible, for extraordinary cases.” 10. Applications under Section 311 of the Code have been rejected by the impugned orders. This Section 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.” 11. A bare reading of Section 311 of the Code, makes it explicit that this section is in two parts. The first part is discretionary, when the court may summon any witness, etc. and the second part mandates the court to examine or recall or re-examine any person, if his evidence appears to be essential to the just decision of the case. 12. The first part is discretionary, when the court may summon any witness, etc. and the second part mandates the court to examine or recall or re-examine any person, if his evidence appears to be essential to the just decision of the case. 12. What the petitioner seeks is that, a small ambiguity in a document proved by PW-3 Dr. R.K. Verma may be clarified. Unfortunately it could not get clarification when deposition of PW-3 Dr. R.K. Verma has been recorded on 13.12.2017. Perhaps, the provisions of Section 165 of the Indian Evidence Act, 1872, could not be invoked at that stage. The Court would have questioned PW-3 Dr. R.K. Verma to explain as to why there are two dates on a document which was given by him i.e. Ex-A5. Such clarification would have been sought under section 165 of the Indian Evidence Act, 1872. It is as hereunder: “165. Judge’s power to put questions or order production - The Judge may, in order to discover or to obtain proper proof of relevant facts, ask any question he pleases, in any form, at any time, of any witness, or of the parties about any fact relevant or irrelevant and may order the production of any document or thing; and neither the parties nor their agents shall be entitled to make any objection to any such question or order, nor, without the leave of the Court, to cross-examine any witness upon any answer given in reply to any such question: Provided that the judgment must be based upon facts declared by this Act to be relevant, and duly proved: Provided also that this section shall not authorize any Judge to compel any witness to answer any question or to produce any document which such witness would be entitled to refuse to answer or produce under sections 121 to 131, both inclusive, if the question were asked or the document were called for by the adverse party; nor shall the Judge ask any question which it would be improper for any other person to ask under section 148 or 149; nor shall he dispense with primary evidence of any document, except in the cases hereinbefore excepted.” 13. Needless to say, a criminal trial is basically a journey in search of the truth. The errors of any party either prosecution or defense cannot be counted. Needless to say, a criminal trial is basically a journey in search of the truth. The errors of any party either prosecution or defense cannot be counted. The Court should have all the facts with much clarity. 14. In the case of Ram Chander vs. State of Haryana, (1981) 3 SCC 191, the Hon’ble Supreme Court reflected on the role of a Judge and observed as hereunder: “What is the true role of a Judge trying a criminal case? Is he to assume the role of a referee in a football match or an umpire in a cricket match, occasionally answering, as Pollock and Maitland [Pollock and Maitland: The History of English Law] point out, the question “How is that” or, is he to, in the words of Lord Denning “drop the mantle of a Judge and assume the robe of an advocate? [Jones vs. National Coal Board, (1957) 2 All. ER 155 : (1957) 2 WLR 760 ] Is he to be a spectator or a participant at the trial? Is passivity or activity to mark his attitude? If he desires to question any of the witnesses, how far can he go? Can he put on the gloves and ‘have a go’ at the witness who he suspects is lying or is he to be soft and suave? These are some of the questions which we are compelled to ask ourselves in this appeal on account of the manner in which the Judge who tried the case put questions to some of the witnesses. 2. The adversary system of trial being what it is, there is an unfortunate tendency for a Judge presiding over a trial to assume the role of a referee or an umpire and to allow the trial to develop into a contest between the prosecution and the defence with the inevitable distortions flowing from combative and competitive elements entering the trial procedure. If a criminal court is to be an effective instrument in dispensing justice, the presiding Judge must cease to be a spectator and a mere recording machine. He must become a participant in the trial by evincing intelligent active interest by putting questions to witnesses in order to ascertain the truth. As one of us had occasion to say in the past: “Every criminal trial is a voyage of discovery in which truth is the quest. He must become a participant in the trial by evincing intelligent active interest by putting questions to witnesses in order to ascertain the truth. As one of us had occasion to say in the past: “Every criminal trial is a voyage of discovery in which truth is the quest. It is the duty of a presiding Judge to explore every avenue open to him in order to discover the truth and to advance the cause of justice. For that purpose he is expressly invested by Section 165 of the Evidence Act with the right to put questions to witnesses. Indeed the right given to a Judge is so wide that he may, ask any question he pleases, in any form, at any time, of any witness, or of the parties about any fact, relevant or irrelevant. Section 172(2) of the Code of Criminal Procedure enables the court to send for the police-diaries in a case and use them to aid it in the trial. The record of the proceedings of the Committing Magistrate may also be perused by the Sessions Judge to further aid him in the trial. [Sessions Judge, Nellore vs. Intha Ramana Reddy, ILR 1972 A.P. 683 : 1972 Cri. L.J. 1485].” 3. With such wide powers, the court must actively participate in the trial to elicit the truth and to protect the weak and the innocent. It must, of course, not assume the role of a prosecutor in putting questions. The functions of the Counsel, particularly those of the Public Prosecutor, are not to be usurped by the judge, by descending into the arena, as it were. Any questions put by the Judge must be so as not to frighten, coerce, confuse or intimidate the witnesses. The danger inherent in a Judge adopting a much too stern an attitude towards witnesses has been explained by Lord Justice Birkett: “People accustomed to the procedure of the court are likely to be overawed or frightened, or confused, or distressed when under the ordeal of prolonged questioning from the presiding judge. The danger inherent in a Judge adopting a much too stern an attitude towards witnesses has been explained by Lord Justice Birkett: “People accustomed to the procedure of the court are likely to be overawed or frightened, or confused, or distressed when under the ordeal of prolonged questioning from the presiding judge. Moreover, when the questioning takes on a sarcastic or ironic tone as it is apt to do, or when it takes on a hostile note as is sometimes almost inevitable, the danger is not only that witnesses will be unable to present the evidence as they may wish, but the parties may begin to think, quite wrongly it may be, that the Judge is not holding the scales of justice quite eventually.” [Extracted by Lord Denning in (supra)] In Jones vs. National Coal Board, (1957) 2 All. ER 155 : (1957) 2 WLR 760 , Lord Justice Denning observed: The Judge's part in all this is to hearken to the evidence, only himself asking questions of witnesses when it is necessary to clear up any point that has been overlooked or left obscure; to see that the advocates behave themselves seemly and keep to the rules laid down by law; to exclude irrelevancies and discourage repetition; to make sure by wise intervention that he follows the points that the advocates are making and can assess their worth and at the end to make up his mind where the truth lies. If he goes beyond this, he drops the mantle of the Judge and assumes the role of an advocate; and the change does not become him well.” We may go further than Lord Denning and say that it is the duty of a Judge to discover the truth and for that purpose he may “ask any question, in any form, at any time, of any witness, or of the parties, about any fact, relevant or irrelevant” (Section 165 Evidence Act). But this he must do, without unduly trespassing upon the functions of the Public Prosecutor and the defence Counsel, without any hint of partisanship and without appearing to frighten or bully witnesses. He must take the prosecution and the defence with him. The court, the prosecution and the defence must work as a team whose goal is justice, a team whose captain is the judge. He must take the prosecution and the defence with him. The court, the prosecution and the defence must work as a team whose goal is justice, a team whose captain is the judge. The Judge “like the conductor of a choir, must, by force of personality, induce his team to work in harmony; subdue the raucous, encourage the timid, conspire with the young, flatter and (sic the) old.” 15. During the course of arguments, this Court put a question to learned counsel appearing for the petitioner and to the learned counsel for the private respondents, as to how and why there are two dates on Ex-A5? On behalf of the petitioner reference is made to a reply to an RTI query, which is Ex-A8 to the petition, which records that x-ray was done on 24.10.2015 and report was prepared on 27.10.2015. But, learned counsel for the private respondents could not give any clarification as to why are there two dates on Ex.A-5. 16. Filling up the lacuna is some phraseology which may be coined every time whenever an application under Section 311 of the Code is moved. But, what is filing up the lacuna? In the case of Mannan Shaikh and Others vs. State of West Bengal and Others, (2014) 13 SCC 59 , the Hon’ble Supreme Court has interpreted this provision 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 keywords. The court must form an opinion that for the just decision of the case recall or re-examination of the witness is necessary. The words “essential to the just decision of the case” are the keywords. 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 its 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 guided only 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 the 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.” 17. In, fact, in the case of Rajendra Prasad vs. Narcotic Cell through its Officer-in-Charge Delhi, Manu/SC/0397/1999, the Hon’ble Supreme Court in detail discussed the concept of filling up the lacuna and errors in the criminal trial and observed as hereunder: “8. It is a common experience in criminal courts that defence counsel would raise objections whenever courts exercise powers under Section 311 of the Code or under Section 165 of the Evidence Act by saying that the Court could not 'fill the lacuna in the prosecution case'. A lacuna in prosecution is not to be equated with the fallout of an oversight committed by a public prosecutor during trial, either in producing relevant materials or in eliciting relevant answers from witnesses. The adage 'to err is human' is the recognition of the possibility of making mistakes to which humans are proved. A corollary of any such latches or mistakes during the conducting of a case cannot be understood as the lacuna which a court cannot fill up. 9. Lacuna in the prosecution must be understood as the inherent weakness or a latent wedge in the matrix of the prosecution case. A corollary of any such latches or mistakes during the conducting of a case cannot be understood as the lacuna which a court cannot fill up. 9. 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 over sight in the management of the prosecution cannot be treated as irreparable lacuna. No party 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. 10. The very same decision Mohanlal Shamji Soni vs. Union of India (supra) which cautioned against filling up lacuna has also laid down the ratio thus: It is therefore clear that the Criminal Court has ample power to summon any person as a witness or recall and reexamined 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 the examination of any person which would depend on the facts and circumstances of each case.” (Emphasis supplied) 18. A bare reading of the statements of PW-2 Dr. B.S. Dugtal and PW-3 Dr. R.K. Verma reveal that both these doctors were unable to tell the Court as to why are there two dates on Ex-A5, the x-ray report, which was prepared by PW-3 Dr. R.K. Verma. PW-2 Dr. B.S. Dugtal is that doctor, who initially, on 23.10.2015, medically examined the victim and based on the x-ray report gave a supplementary medical report. Both these doctors, when examined, were without any original record before the Court. They did not have the medico legal registers, based on which such medical reports were given. As stated, unfortunately, the Court did not intervene, while the statements of these witnesses were recorded. Both these doctors, when examined, were without any original record before the Court. They did not have the medico legal registers, based on which such medical reports were given. As stated, unfortunately, the Court did not intervene, while the statements of these witnesses were recorded. Otherwise, this situation would have been prevented and those witnesses could have been asked to appear before the Court along with the original records, so as to clarify the documents, which they had issued. 19. Therefore, this Court is of the view that in order to clarify the x-ray report Ex-A5, further examination of PW-3 Dr. R.K. Verma along with all the original medical documents pertaining to the victim is necessary for just decision of the case. Accordingly, the petition deserves to be allowed. 20. The petition is allowed. The impugned orders/judgment and orders are set aside. 21. The application filed under Section 311 of the Code by the petitioner is allowed. 22. PW-3 Dr. R.K. Verma shall be summoned for his re-examination by the prosecution. After re-examination, he shall be further cross-examined by the private respondents. Dr. R.K. Verma, shall appear in the Court along with all the original medical registers, records, x-ray plates, entry in the registers pertaining to the victim. 23. Learned counsel for the parties would submit that directions may be issued that the trial may not be delayed and a time frame may be fixed, so that the trial may be concluded within that time frame. Learned counsel appearing for the petitioner and learned Senior Counsel appearing for the private respondents assure this Court that they would not seek any adjournment on whatsoever ground, when the matter is fixed. 24. In view of the statements given by the learned counsel for the parties, the court below is requested to consider that the trial is conducted on day-to-day basis.