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TMI Blog2021 (3) TMI 1367X X X X Extracts X X X X X X X X Extracts X X X X ..... ch strengthen the arms of a court in its effort to unearth the truth by procedure sanctioned by law. At the same time, the discretionary power vested under Section 311 CrPC has to be exercised judiciously for strong and valid reasons and with caution and circumspection to meet the ends of justice - Indisputedly, the facts in the instant case are that the daughter of the appellant died an unnatural death on the intervening night of 2nd/3rd April, 2004 in Bangalore where she was living with the respondents who are facing trial under Sections 498A, 304-B, 302 read with Section 34 IPC and under Sections 4 and 6 of the Dowry Prohibition Act, 1961 and the trial is at the fag end of its closure and the case is listed for hearing. In the instant case, although the application was filed by the Ld. Additional Special Public Prosecutor under Section 173(5) read with Section 311 CrPC but it was open for the Ld. Trial Judge as well to exercise suo motu powers in summoning the witnesses whose statements ought to be recorded to subserve the cause of justice, with the object of getting the evidence in aid of a just decision and to uphold the truth - It is not necessary that in every case, it is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt for the purpose are that the marriage of Keerthi (deceased-daughter of the appellant) was solemnized with the 1st respondent on 17th February, 2002. On the intervening night of 2nd/3rd April, 2004, at about 3.30 am, the appellant received a call that her daughter had died. In connection with her unnatural death, on the basis of a complaint filed by the appellant (father of the deceased), Crime No. 162/2004 came to be registered at the Sanjay Nagar Police Station, Bangalore for an offence punishable under Section 302, 498A IPC. 7. During the course of trial, as per the record and evidence, the examination of all the relative-witnesses and the documentary evidence produced by the investigating officer, indicates that the second post-mortem on the victim s body was conducted on 4th April, 2004 by the team of 5 doctors in J.J. Hospital, Mumbai, in respect of which the investigating officer/PW 44 had corresponded under Exhibit P-140 to Exhibit P-142 seeking for the copy of the said second post-mortem on 13th September, 2005 itself. It further reveals that the stated documents indicated above were not made available to the investigating officer during the submission of the main cha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eals that the second post mortem which was got conducted at J.J. Hospital, Mumbai appears to have been made through the Worli Police, Mumbai by lodging the complaint there, by the members of the family of the deceased, wherefor, at the very outset, it is not the post mortem having made privately, as it is through the Police at Mumbai. 10. It was further observed that as per Exhibits P-136, P-140 to P-142, which are available on record that PW-44 Investigating Officer had initiated the correspondence with the Worli Police, as well with the Doctors of J.J. Hospital, seeking for sending copy of the second post-mortem which clearly indicates that the very intendment prevailed with PW 44 in corresponding with the Worli Police, Mumbai and Mumbai Doctors with the Exhibits P-136 and P-142 to obtain the said copy of the second post mortem conducted at the J.J. Hospital, Mumbai, required for investigation by him in Bengaluru, by considering it as part and parcel of his investigation, and the second post mortem is not the outcome of the personal instance of the family members of the deceased, but the relevance of the second post mortem with the case, which PW-44 has deposed in his chief-ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... always said wider the power, greater is the necessity of caution while exercise of judicious discretion. 16. The principles related to the exercise of the power under Section 311 CrPC have been well settled by this Court in Vijay Kumar Vs. State of Uttar Pradesh and Another 2011(8) SCC 136. 17. Though Section 311 confers vast discretion upon the court and is expressed in the widest possible terms, the discretionary power under the said section can be invoked only for the ends of justice. Discretionary power should be exercised consistently with the provisions of the Code and the principles of criminal law. The discretionary power conferred under Section 311 has to be exercised judicially for reasons stated by the court and not arbitrarily or capriciously. Before directing the learned Special Judge to examine Smt Ruchi Saxena as a court witness, the High Court did not examine the reasons assigned by the learned Special Judge as to why it was not necessary to examine her as a court witness and has given the impugned direction without assigning any reason. 17. This principle has been further reiterated in Mannan Shaikh and Others Vs. State of West Bengal and Another 2014 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . At this stage, application came to be filed by Ld. Additional Special Public Prosecutor under Section 173(5) read with Section 311 CrPC for summoning the witnesses along with the concerned documents to adduce their evidence in connection with the second post mortem conducted on the body of the deceased and after perusal of the record, the factual statement has been recorded by the Ld. Trial Judge in paragraphs 9 10 as follows:- 9. In connection with the same, at the very outset, on record it could be seen that it is contended that the said second post-mortem is got conducted in J.J. Hospital, Mumbai. The second post-mortem appears to have been made through the Worli Police, Mumbai by lodging the complaint there-at by the members of the family of the deceased, wherefore, at the very outset, it is not the post- mortem having got made privately, as it is through the Police. 10. Notwithstanding as to whether the Worli Police have further continued the investigation or otherwise or directly connected to the instant case in hand, it is clear from the records as per Exhibits P-136, P-140 to P-142 which are available on record that the PW-44/Investigating Officer had initiated t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Order dated 3rd September, 2016 and taking note of the submissions made by the contesting parties summarily, without assigning any reasons, albeit brief it may be, set aside the judgment of the Ld. trial Judge. We consider it appropriate to quote what has been observed by the High Court in its impugned judgment dated 11th January, 2017 which is as under:- 4. The learned Government Pleader would however seek to make a weak attempt to justify the apparent illegal procedure that has been permitted by the trial Court in allowing the aforesaid application. Therefore, the petition is summarily allowed. The order dated 3.9.2016 in S.C. No. 538/2004 on the file of LI Additional City Civil and Sessions Judge (CCH No. 52), Bengaluru, is quashed. The court below is directed to proceed further, in accordance with law. 24. It is not necessary that in every case, it is required to record elaborate reasons but since the matters are carried forward to this Court, the reasons, albiet brief may be, have to be recorded to facilitate this Court to understand as to what weighed with the Ld. Judge while passing the impugned judgment, moreover, when the finding of reversal has been recorded by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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