2014 (7) TMI 1362 - SC - Indian Laws

Rejection of application to recall the Investigating Officer - Section 311 of the Code of Criminal Procedure, 1973 - HELD THAT - The aim of every court is to discover truth. Section 311 of the Code is one of many such provisions of the Code which strengthen the arms of a court in its effort to ferret out the truth by procedure sanctioned by law. It is couched in very wide terms. It empowers the court at any stage of any inquiry, trial or other proceedings under the Code to summon any person as a witness or examine any person in attendance, though not summoned as witness or recall and re-examine already examined witness. The second part of the Section uses the word shall . It says that the court shall summon and examine or recall or re-examine any such person if his evidence appears to it to be essential to the just decision of the case. The words essential to the just decision of the case are the key words. The court must form an opinion that for the just decision of the case recall or re- examination of the witness is necessary. Since the power is wide it s exercise has to be done with circumspection. It is trite that wider the power greater is the responsibility on the courts which exercise it. The exercise of this power cannot be untrammeled and arbitrary but must be only guided by the object of arriving at a just decision of the case. It should not cause prejudice to the accused. The impugned order merits no interference - It is clarified that oversight of the prosecution is not appreciated by us. But cause of justice must not be allowed to suffer because of the oversight of the prosecution. It is made clear that whether deceased Rupchand Sk s statement recorded by PW15-SI Dayal Mukherjee is a dying declaration or not, what is its evidentiary value are questions on which we have not expressed any opinion. If any observation of ours directly or indirectly touches upon this aspect, we make it clear that it is not our final opinion. The trial court seized of the case shall deal with it independently. Appeal dismissed.

Issues Involved:
1. Application under Section 311 of the Code of Criminal Procedure, 1973 to recall the Investigating Officer.
2. Whether recalling the Investigating Officer would cause prejudice to the accused.
3. Applicability of Section 311 for the just decision of the case.
4. Consideration of previous judgments related to Section 311 of the Code.

Issue-wise Detailed Analysis:

1. Application under Section 311 of the Code of Criminal Procedure, 1973 to recall the Investigating Officer:
The prosecution filed an application under Section 311 of the Code to recall PW15-SI Dayal Mukherjee to bring on record the statement of the deceased Rupchand Sk, which was inadvertently omitted. The trial court rejected this application, stating that allowing it would enable the prosecution to fill up a lacuna. The High Court reversed this decision, noting that the omission was a mistake by the prosecution and that the accused were aware of the statement, thus no prejudice would be caused to them.

2. Whether recalling the Investigating Officer would cause prejudice to the accused:
The appellants argued that recalling the Investigating Officer after 22 years would be unjust and would cause serious prejudice to them. They contended that this would allow the prosecution to fill up a lacuna and that the Investigating Officer, having retired and aged, might not remember the incident accurately, making it easier for the complainant to tutor him. However, the court noted that the application was made just one month after the re-examination of the Investigating Officer, and the accused would have the opportunity to cross-examine him, thus no prejudice would be caused.

3. Applicability of Section 311 for the just decision of the case:
The court emphasized that the aim of every court is to discover the truth and that Section 311 is designed to aid in this endeavor. The section empowers the court to summon or recall any person if their evidence is essential to the just decision of the case. The court must exercise this power with circumspection, ensuring it does not cause prejudice to the accused or allow the prosecution to fill up a lacuna. The court concluded that recalling the Investigating Officer was necessary for the just decision of the case, as the statement of the deceased was vital to the prosecution's case.

4. Consideration of previous judgments related to Section 311 of the Code:
The court referred to several judgments, including Mohanlal Soni, which laid down the principles for the exercise of power under Section 311. It was noted that the power to summon or recall witnesses is wide but must be exercised judicially and not arbitrarily. The court also referred to Rajendra Prasad, which clarified that an oversight in the management of the prosecution cannot be treated as an irreparable lacuna. The court found that the present case did not involve an inherent weakness in the prosecution's case but rather an oversight that needed correction for the just decision of the case.

Conclusion:
The Supreme Court upheld the High Court's order allowing the recall of the Investigating Officer, emphasizing that the cause of justice should not suffer due to the prosecution's oversight. The court clarified that whether the deceased's statement is a dying declaration and its evidentiary value are matters for the trial court to decide independently. The appeal was dismissed, and the trial court was directed to proceed with the case and conclude it at the earliest.

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