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2023 DIGILAW 385 (JHR)

Mayank Giri v. State of Jharkhand

2023-03-22

SANJAY KUMAR DWIVEDI

body2023
JUDGMENT : I.A. No. 6950 of 2022 has been filed for amendment in the prayer portion of the petition. 2. Learned counsel appearing for the petitioners submits that in two occasions, the prosecution has filed the petition under Section 311 Cr.P.C. He submits that those two petitions were allowed, without calling upon any reply on behalf of the defence in the first case. He further submits that the petitioners have filed a petition under Section 311 Cr.P.C. by the defence, which was rejected, vide order dated 29.06.2022. He also submits that the girl has married with a boy and the girl has stated in her statement recorded under Section 164 Cr.P.C. that she wants to live with the petitioner No. 1. He further submits that the learned court has rejected the prayer of the petitioner only on the ground of delay. 3. Learned A.P.P. appearing for the State as well as learned counsel appearing for the O.P. No. 2 has objected the argument of learned counsel appearing for the petitioners. They jointly submit that the learned court has rightly rejected the prayer of the petitioners. 4. In view of the above facts and submissions of the parties, the court has gone through the impugned order and finds that the petition filed under Section 311 Cr.P.C. has been rejected on the ground of delay. It is the discretionary power of the Court but at the same time the object underlying under Section 311 Cr.P.C. is that there cannot be failure of justice on account of mistake of either party in bringing the valuable evidence on record or leaving the ambiguity in the statements of the witnesses. 5. In that view of the matter, the prayer made in the aforesaid I.A. is allowed. 6. Thus, the order dated 29.06.2022 passed in S.T. No. 275 of 2009 is under challenge in this petition. Mr. Deepak Bharti, learned counsel appearing for the petitioners confined his prayer now with regard to order dated 29.06.2022 and he is not pressing the other prayers made in the main petition. 7. Let the aforesaid I.A. be treated as a part of the main petition. 8. Mr. Deepak Bharti, learned counsel appearing for the petitioners confined his prayer now with regard to order dated 29.06.2022 and he is not pressing the other prayers made in the main petition. 7. Let the aforesaid I.A. be treated as a part of the main petition. 8. It has been argued by the learned counsel appearing for the petitioners that two petitions filed by the prosecution under Section 311 Cr.P.C. were allowed by the learned court and the first petition was allowed without calling upon any objection on behalf of the petitioners. He submits that pursuant thereto the trial has almost started de novo. He further submits that the petition filed under Section 311 Cr.P.C. by the petitioners before the learned court on the ground of re-examination of Divya Choudhary is very essential because some love letters which were sent by her in her writing is clear cut indication for saving herself from honour killing, due to which she changed her stand after her statement under Section 164 Cr.P.C and on that ground, petition has been filed. It was also stated in the said petition that while deciding the A.B.A., it has been argued that the matter relates to love affairs, while granting the bail to the accused Mayank Giri. He submits that the learned court has dismissed the said petition. 9. The learned counsel appearing for the O.P. No. 2 submits that the learned court has rightly rejected the petition. The learned counsel appearing for the State submits that Section 311 Cr.P.C. is the discretionary power of the learned court and that order has been rightly passed. 10. In view of the above, the court has perused the impugned order and finds that one of the reason of rejecting the petition was that only the prosecution has the right to examine the girl, which will not sustain in the eyes of law. The object underlying under Section 311 Cr.P.C. is that there cannot be failure of justice on account of mistake of either party in bringing the valuable evidence on record or leaving the ambiguity in the statements of the witnesses, examined so far. 11. The object underlying under Section 311 Cr.P.C. is that there cannot be failure of justice on account of mistake of either party in bringing the valuable evidence on record or leaving the ambiguity in the statements of the witnesses, examined so far. 11. In Rajendra Prasad v. Narcotics Cell through its Officer, [ (1999) 6 SCC 110 ], the Hon'ble Supreme Court in paragraph 8 of the judgment took note of the observation made in Mohanlal Shamji Sani v. Union of India, AIR (1991) SC 1346 to the effect that while exercising power under Section 311 of the Code, the Court shall not use such power `for filling up the lacuna left by the prosecution.' Paragraph 8 of the said judgment is quoted herein below:- “8. 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.” 12. Recently the Hon'ble Supreme Court has again considered Section 311 Cr.P.C. in Criminal Appeal No.1021 of 2022 with MA 1144 of 2022 in SLP (Crl) No.2239 of 2022 in Varsha Garg v. The State of Madhya Pradesh & Ors. in paragraphs 38 to 44, which are quoted herein below:- ''38. Having dealt with the satisfaction of the requirements of Section 311, we deal with the objection of the respondents that the application should not be allowed as it will lead to filling in the lacunae of the prosecution‘s case. However, even the said reason cannot be an absolute bar to allowing an application under Section 311. 39. In the decision in Zahira Habibullah Sheikh (5) v. State of Gujarat, (2006) 3 SCC 374 which was more recently reiterated in Godrej Pacific Tech. However, even the said reason cannot be an absolute bar to allowing an application under Section 311. 39. In the decision in Zahira Habibullah Sheikh (5) v. State of Gujarat, (2006) 3 SCC 374 which was more recently reiterated in Godrej Pacific Tech. Ltd. v. Computer Joint India Ltd., (2008) 11 SCC 108 , the Court specifically dealt with this objection and observed that the resultant filling of loopholes on account of allowing an application under Section 311 is merely a subsidiary factor and the Court‘s determination of the application should only be based on the test of the essentiality of the evidence. It noted that: ? 28. The court is not empowered under the provisions of the Code to compel either the prosecution or the defence to examine any particular witness or witnesses on their side. This must be left to the parties. But in weighing the evidence, the court can take note of the fact that the best available evidence has not been given, and can draw an adverse inference. The court will often have to depend on intercepted allegations made by the parties, or on inconclusive inference from facts elicited in the evidence. In such cases, the court has to act under the second part of the section. Sometimes the examination of witnesses as directed by the court may result in what is thought to be “filling of loopholes”. That is purely a subsidiary factor and cannot be taken into account. Whether the new evidence is essential or not must of course depend on the facts of each case, and has to be determined by the Presiding Judge. (emphasis supplied) 40. The right of the accused to a fair trial is constitutionally protected under Article 21. However, in Mina Lalita Baruwa (supra), while reiterating Rajendra Prasad (supra), the Court observed that it is the duty of the criminal court to allow the prosecution to correct an error in interest of justice. In Rajendra Prasad (supra), the Court had held that: ? 8. 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. 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. (emphasis supplied) In the present case, the importance of the decoding registers was raised in the examination of PW-41. Accordingly, the decoding registers merely being additional documents required to be able to appreciate the existing evidence in form of the call details which are already on record but use codes to signify the location of accused, a crucial detail, which can be decoded only through the decoding registers, the right of the accused to a fair trial is not prejudiced. The production of the decoding 22 registers fits into the requirement of being relevant material which was not brought on record due to inadvertence. 41. Finally, we also briefly deal with the objection of the respondents regarding the stage at which the application under Section 311 was filed. The respondents have placed reliance on Swapan Kumar (supra), a two judge Bench decision of this Court, to argue that the application should not be allowed as it has been made at a belated stage. The Court in Swapan Kumar (supra) observed: ? 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 wide power under this Section to even recall witnesses for re-examination 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. 12. 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. 12. Where the prosecution evidence has been closed long back and the reasons for non-examination of the witness earlier are not satisfactory, the summoning of the witness at belated stage would cause great prejudice to the accused and should not be allowed. Similarly, the court should not encourage the filing of successive applications for recall of a witness under this provision. In the present appeal, the argument that the application was filed after the closure of the evidence of the prosecution is manifestly erroneous. As already noted above, the closure of the evidence of the prosecution took place after the application for the production of the decoding register and for summoning of the witness under Section 23, 311 was dismissed. Though the dismissal of the application and the closure of the prosecution evidence both took place on 13 November 2021, the application by the prosecution had been filed on 15 March 2021 nearly eight months earlier. As a matter of fact, another witness for the prosecution, Rajesh Kumar Singh, was also released after examination and cross examination on the same day as recorded in the order dated 13 November 2021 of the trial court. 42. The Court is vested with a broad and wholesome power, in terms of Section 311 of the CrPC, to summon and examine or recall and re-examine any material witness at any stage and the closing of prosecution evidence is not an absolute bar. This Court in Zahira Habibulla H. Sheikh (supra) while dealing with the prayers for adducing additional evidence under Section 391 CrPC at the appellate stage, along with a prayer for examination of witnesses under Section 311 CrPC explained the role of the court, in the following terms: ? 43. The courts have to take a participatory role in a trial. They are not expected to be tape recorders to record whatever is being stated by the witnesses. Section 311 of the Code and Section 165 of the Evidence Act confer vast and wide powers on presiding officers of court to elicit all necessary materials by playing an active role in the evidence collecting process. They are not expected to be tape recorders to record whatever is being stated by the witnesses. Section 311 of the Code and Section 165 of the Evidence Act confer vast and wide powers on presiding officers of court to elicit all necessary materials by playing an active role in the evidence collecting process. They have to monitor the proceedings in aid of justice in a manner that something, which is not relevant, is not unnecessarily brought into record. Even if the prosecutor is remiss in some ways, it can control the proceedings effectively so that the ultimate objective i.e. truth is arrived at. This becomes more necessary where the court has reasons to believe that the prosecuting agency or the prosecutor is not acting in the requisite manner. The court cannot afford to be wishfully or pretend to be blissfully ignorant or oblivious to such 24 serious pitfalls or dereliction of duty on the part of the prosecuting agency. The prosecutor who does not act fairly and acts more like a counsel for the defence is a liability to the fair judicial system, and courts could not also play into the hands of such prosecuting agency showing indifference or adopting an attitude of total aloofness.” (emphasis supplied) Further, in Zahira Habibullah Sheikh (5) (supra), the Court reiterated the extent of powers under Section 311 and held that: ? 27. The object underlying Section 311 of the Code is that there may not be failure of justice on account of mistake of either party in bringing the valuable evidence on record or leaving ambiguity in the statements of the witnesses examined from either side. The determinative factor is whether it is essential to the just decision of the case. The section is not limited only for the benefit of the accused, and it will not be an improper exercise of the powers of the court to summon a witness under the section merely because the evidence supports the case of the prosecution and not that of the accused. The section is a general section which applies to all proceedings, enquiries and trials under the Code and empowers the Magistrate to issue summons to any witness at any stage of such proceedings, trial or enquiry. In Section 311 the significant expression that occurs is “at any stage of any inquiry or trial or other proceeding under this Code”. The section is a general section which applies to all proceedings, enquiries and trials under the Code and empowers the Magistrate to issue summons to any witness at any stage of such proceedings, trial or enquiry. In Section 311 the significant expression that occurs is “at any stage of any inquiry or trial or other proceeding under this Code”. It is, however, to be borne in mind that whereas the section confers a very wide power on the court on summoning witnesses, the discretion conferred is to be exercised judiciously, as the wider the power the greater is the necessity for application of judicial mind. (emphasis supplied) 43. The Court while reiterating the principle enunciated in Mohanlal Shamji Soni (supra) stressed upon the wide ambit of Section 311 which allows the power to be exercised at any stage and held that: 44. The power of the court under Section 165 of the Evidence Act is in a way complementary to its power under Section 311 of the Code. The section consists of two parts i.e.: (i) giving a discretion to the court to examine the witness at any stage, and (ii) the mandatory portion which compels the court to examine a witness if his evidence appears to be essential to the just decision of the court. Though the discretion given to the court is very wide, the very width requires a corresponding caution. In Mohanlal v. Union of India this Court has observed, while considering the scope and ambit of Section 311, that the very usage of the words such as, “any court”, “at any stage”, or “any enquiry or trial or other proceedings”, “any person” and “any such person” clearly spells out that the section has expressed in the widest possible terms and do not limit the discretion of the court in any way. However, as noted above, the very width requires a corresponding caution that the discretionary powers should be invoked as the exigencies of justice require and exercised judicially with circumspection and consistently with the provisions of the Code. The second part of the section does not allow any discretion but obligates and binds the court to take necessary steps if the fresh evidence to be obtained is essential to the just decision of the case, “essential” to an active and alert mind and not to one which is bent to abandon or abdicate. The second part of the section does not allow any discretion but obligates and binds the court to take necessary steps if the fresh evidence to be obtained is essential to the just decision of the case, “essential” to an active and alert mind and not to one which is bent to abandon or abdicate. 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 subserve 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. (emphasis supplied) While reiterating the decisions of this Court in Karnel Singh v. State of M.P., (1995) 5 SCC 518 , Paras Yadav v. State of Bihar, (1999) 2 SCC 126 , Ram Bihari Yadav v. State of Bihar, (1998) 4 SCC 517 and Amar Singh v. Balwinder Singh this Court held that the court may interfere even at the stage of appeal: 64. It is no doubt true that the accused persons have been acquitted by the trial court and the acquittal has been upheld, but if the acquittal is unmerited and based on tainted evidence, tailored investigation, unprincipled prosecutor and perfunctory trial and evidence of threatened/terrorised witnesses, it is no acquittal in the eye of the law and no sanctity or credibility can be attached and given to the socalled findings. It seems to be nothing but a travesty of truth, fraud on the legal process and the resultant decisions of courts — coram non judis and non est. There is, therefore, every justification to call for interference in these appeals. 44. For the above reasons, we have come to the conclusion that the decision of the High Court which is impugned in the appeal is unsustainable. We accordingly allow the appeal and set aside the impugned judgment and order of the High Court dated 8 April 2022 in Misc. 44. For the above reasons, we have come to the conclusion that the decision of the High Court which is impugned in the appeal is unsustainable. We accordingly allow the appeal and set aside the impugned judgment and order of the High Court dated 8 April 2022 in Misc. Criminal Case No. 57152 of 2021 as well as the order of the Second Additional Session Judge, Dr. Ambedkar Nagar, District Indore dated 13 November 2021 in Sessions Trial 227 of 2016 dismissing the application filed by the prosecution. The application filed by the prosecution for the production of the decoding registers and for the summoning of the witnesses of the cellular companies for that purpose is allowed. The Second Additional Sessions Judge, Dr. Ambedkar Nagar, District Indore is directed to conclude Sessions Trial No. 227 of 2016 by 31 October 2022.” 13. In view of the judgments of the Hon’ble Supreme Court in the case of Rajendra Prasad (Supra) and Varsha Garg (Supra), wherein the Hon'ble Supreme Court has held 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. This part of excerpts of judgment of the Hon'ble Supreme Court itself indicates that Section 311 Cr.P.C. includes power for examining the witnesses as well as admitting the relevant material which were not brought on record. In the criminal trial, both the parties were required to be given the fair chance. The case is based on love affairs and the petitioners are the accused in the said case. 14. In view of the above facts, reason and analysis, the order dated 29.06.2022, passed in S.T. No. 275 of 2009, is hereby, set aside. The learned court shall call the girl for further examination on behalf of the accused on a particular date fixed by the learned court. It is made clear that on that day, the examination of the girl must be completed and no time shall be allowed to the petitioners to further examine the girl. On the date of appearance of the girl, the petitioners shall pay a sum of Rs. 2000/- to the girl as her travelling expenses. 15. With the above observation, this petition is allowed and disposed of. Pending I.A., if any, stands disposed of.