2018 (3) TMI 2011 - HC - Indian Laws

Maintainability of application - recalling of witness for re-examination or calling of a witness for examination can be permitted under section 311 Cr.P.C. after the arguments are over and before the pronouncement of judgment - Whether the view expressed in the case of IMRAT SINGH AND ORS. VERSUS STATE OF M.P. 2015 (1) TMI 1496 - MADHYA PRADESH HIGH COURT , is in accordance with the provisions of section 311 of the Cr.P.C.? HELD THAT - In Imrat Singh's case, after final arguments were heard and case was posted for judgment by the trial Court, an application was filed by the prosecution for recall of Dr. Anoop Verma to clarify as to whether bone of left leg or right leg was fractured. In the earlier evidence, he had deposed that the fracture was found in the left leg but as per the Xray, it was right leg which was found to be fractured. The learned Trial Court permitted the doctor to be re-examined but the learned Single Bench relied upon a Single Bench judgment of Rajasthan High Court in Cheeku Singh v. State of Rajasthan 1997 (9) TMI 648 - RAJASTHAN HIGH COURT held that the order passed by the trial Court was contrary to law, having been passed on the date when the case was fixed for judgment. Reference was also made to section 353 of the Criminal Procedure Code, 1973. The Supreme Court in VIJAY KUMAR VERSUS STATE OF U.P. AND ORS. 2011 (8) TMI 1354 - SUPREME COURT , while dealing with the nature, scope and object of section 311 of the Code and the power of the Court under section 165 of the Evidence Act, came to the conclusion that for the just decision of the case, power to summon any person as a witness can be exercised at any stage of the trial provided the evidence which may be tendered by a witness is germane to the issue involved or if proper evidence is not adduced or relevant material is not brought on record due to any inadvertence. In a heinous crime for an offence punishable under sections 363, 366A, 376A, 302 of IPC and section 4 of the Act, any lapse in the prosecution in not citing the witnesses in the report under section 173 of the Code, cannot be permitted to defeat the object of orderly society. The crime against women and the children are increasing, affecting the social fabric of the society. Therefore, technicality or the lapse of the prosecution in not citing relevant witnesses or the mistake of the public prosecutor in not proving the relevant evidence will not bar the jurisdiction of the Court under section 311 of the Code. It may be stated that when the prosecution filed an application under section 311 of the Code, the only objection raised by the defence was that the argument had been heard. Keeping in view that the purpose of criminal trial is orderly society and that to find out the truth, the summoning of witnesses cannot be said to be unjustified as the petitioner would have complete opportunity to cross-examine the witnesses. It is not the case of lacuna but the failure of the prosecution to produce relevant evidence during the course of trial. Such evidence is not filling of a lacuna but a case of oversight in the management of the prosecution which cannot be stated to be irreparable lacuna. The judgment of this Court in Imrat Singh, does not lay down correct law and is thus, overruled. Relying upon the Supreme Court judgments referred to above, an application under section 311 of the Code can be filed at any stage of trial even after conclusion of the argument as the trial is complete only after the judgment is announced, section 353 of the Code contemplates that the judgment in every trial shall be pronounced in an open Court immediately after termination of the trial. Let the matter be placed before the Bench as per Roster for final disposal.

Summary

Issues Involved:
1. Whether recalling of witness for re-examination or calling of a witness for examination can be permitted under section 311 Cr.P.C. after the arguments are over and before the pronouncement of judgment.
2. Whether the view expressed in the case of "Imrat Singh v. State of M.P. (2015) Cr.L.J. 3473" is in accordance with the provisions of section 311 of the Cr.P.C.

Detailed Analysis:

Issue 1: Permissibility of Recalling Witnesses Under Section 311 Cr.P.C. After Arguments and Before Judgment
The court examined whether the trial court has the authority to recall witnesses for re-examination or to call new witnesses under section 311 of the Criminal Procedure Code (Cr.P.C.) after the arguments have been concluded but before the judgment is pronounced. The court referred to multiple precedents, notably the Supreme Court judgment in Mohanlal Shamji Soni v. Union of India and another, which elaborates that section 311 is expressed in the widest possible terms and does not limit the court’s discretion at any stage of the trial until the judgment is pronounced. The court emphasized that the trial concludes only after the judgment is announced, as per section 353 of the Cr.P.C., and thus, the power to recall or summon witnesses can be exercised until then. The court further highlighted that the objective of section 311 is to ensure a just decision by obtaining essential evidence, and this power should be exercised judicially, with caution and not arbitrarily.

Issue 2: Validity of the Judgment in "Imrat Singh v. State of M.P."
The court scrutinized the judgment in Imrat Singh's case, where the trial court permitted the recall of a witness after the final arguments were heard, which was subsequently overturned by a Single Bench of the High Court. The court found that the judgment in Imrat Singh did not consider the Supreme Court's ruling in Mohanlal Shamji Soni, which allows for the exercise of section 311 powers until the judgment is pronounced. The court also referred to other judgments, including Rajendra Prasad v. Narcotic Cell and Zahira Habibulla H. Sheikh v. State of Gujarat, which support the view that the trial court has the discretion to recall witnesses even after the arguments are concluded if it is essential for a just decision.

Conclusion:
The court held that the judgment in Imrat Singh does not lay down the correct law and overruled it. The court affirmed that an application under section 311 Cr.P.C. can be filed at any stage of the trial, even after the conclusion of arguments, as the trial is complete only after the judgment is announced. The court emphasized that the purpose of a criminal trial is to discover the truth and administer justice, and any oversight or lapse by the prosecution should not bar the court from exercising its powers under section 311 to summon or recall witnesses if it is essential for a just decision. The matter was then referred back to the appropriate bench for final disposal.