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TMI Blog2022 (1) TMI 1268X X X X Extracts X X X X X X X X Extracts X X X X ..... for future references. He also emphasised on the need to protect the crime scene for future references and investigational purposes. The video would definitely be a valuable piece of evidence because it was recorded during first visit by a police officer to the crime scene. Shri Lamba was not examined in evidence at the trial. Now with the publication of the book, referred to supra, the defence has right to claim that video of the crime scene was unquestionably recorded which fact is sufficient to convince the Court that it is absolutely essential in the interest of justice and for a just decision of the case to exercise the power under Section 391 Cr.P.C. for summoning and examining Shri Ajay Pal Lamba as a court witness in this case while giving access of cross-examination to the defence as well as the prosecution. Accordingly, it is directed that the witness Shri Ajay Pal Lamba, the then DCP (West), Jodhpur shall be summoned in this Court for recording his evidence as a court witness at the appellate stage for the limited purpose of extracting the truth about the video recorded, with the book published at his behest with the title GUNNING FOR THE GODMAN, THE TRUE STORY BE ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on certain excerpts of the said book. 4. It is asserted in the application is that the entire prosecution case is false and fabricated. In the handwritten complaint submitted at the Police Station Kamla Market, Central District, Delhi on 19.03.2013 (Ex. P/4), the victim Mst. 'S' (PW-5) claimed to have been ravished inside a hut like room (hereinafter referred to as 'the Kutia') in the Aashram of the appellant-applicant situated at Jodhpur. Neither in this handwritten complaint nor in the statement of the victim recorded on 20.08.2013 (Ex. P/7), was any description of the interiors of the Kutia given. Shri Ajay Pal Lamba, visited the crime scene on 21.08.2013 and conducted extensive site inspection and also undertook videography of the crime scene which fact has been described at length in the book, referred to supra. Advancing his arguments in support of the prayer for summoning of Shri Lamba by way of additional evidence at the appellate stage, Shri Kamat, learned Senior Counsel representing the appellant, drew the Court's attention to the following excerpts of the book, referred to supra, wherein, Shri Lamba, wrote: I immediately swung into actio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tem published in Dainik Bhaskar Newspaper on 22.08.2013 and was given a suggestion that she was made familiar with the crime scene by aid of the photographs and that is why, she could describe the same at a later point of time. Shri Kamat pointed out that the trial court disallowed the question. Till the publication of the book (supra), the defence had no idea regarding the video recorded by the DCP Shri Ajay Pal Lamba. No sooner, the book was published and came out in the market, this important fact came to light whereupon, the instant application has been preferred. In support of his arguments, Shri Kamat placed reliance on the Supreme Court Judgment in the case of Zahira Habibulla H. Sheikh Anr vs. State of Gujarat Ors., reported in (2004) 4 SCC 158 and to be specific the observations made in the following paras of the said judgment: 31. In 1846, in a judgment which Lord Chancellor Selborne would later describe as one of the ablest judgments of one of the ablest judges who ever sat in this court, Vice-Chancellor Knight Bruce said: The discovery and vindication and establishment of truth are main purposes certainly of the existence of Courts of Justice; still, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it serves. Courts administering criminal justice cannot turn a blind eye to vexatious or oppressive conduct that has occurred in relation to proceedings, even if a fair trial is still possible, except at the risk of undermining the fair name and standing of the judges as impartial and independent adjudicators. 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 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 ultimate objective i.e. truth is arrived at. This becomes more necessary 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 ignoran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion under Section 391. 49. There is no restriction in the wording of Section 391 either as to the nature of the evidence or that it is to be taken for the prosecution only or that the provisions of the Section are only to be invoked when formal proof for the prosecution is necessary. If the appellate Court thinks that it is necessary in the interest of justice to take additional evidence it shall do so. There is nothing in the provision limiting it to cases where there has been merely some formal defect. The matter is one of the discretion of the appellate Court. As re-iterated supra the ends of justice are not satisfied only when the accused in a criminal case is acquitted. The community acting through the State and the public prosecutor is also entitled to justice. The cause of the community deserves equal treatment at the hands of the Court in the discharge of its judicial functions. Reliance was also made on the following Supreme Court Judgments: (i) Ajay Gupta vs. State through CBI (ii) Asim alias Munmun alias Asif Abdulkarim Solanki vs. State of Gujarat (iii) Rambhau Anr. vs. State of Maharashtra, reported in (2001) 4 SCC 759; (iv) Union of India Ors. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al for the just decision of the case. In the case of V.N. Patil Vs. K. Niranjan Kumar, reported in (2021) 3 SCC 661, Hon'ble the Supreme Court, extensively analysed the concept of recording additional evidence in a criminal trial and observed as below: 14. The scope of Section 311 Cr.P.C. which is relevant for the present purpose is reproduced hereunder: 311. Power to summon material witness, or examine person present 15. The object underlying Section 311 Cr.P.C. 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 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 the discretionary power conferred under Section 311 Cr.P.C. has to be exercised judiciously, as it is always said wider the power, greater is the necessity of caution while exercise of judicious discretion. 16. The principles related to the exercise of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stage of appeal and it may be viewed as an attempt to influence the Judicial proceedings. 10. Be that as it may. Now, the cat is out of the bag and the book has been published wherein, Shri Lamba, who was posted as DCP (West), Jodhpur at the relevant point of time, has emphatically written his memoirs and mentions that he visited the crime scene on 21.08.2013 and recorded a video thereof with his mobile phone so that it could be used for future references. He also emphasised on the need to protect the crime scene for future references and investigational purposes. The video would definitely be a valuable piece of evidence because it was recorded during first visit by a police officer to the crime scene. Shri Lamba was not examined in evidence at the trial. The defence has given definite suggestions to the victim as well as the Investigating Officer Smt. Chanchal Mishra (PW-43) that a video recording of the crime scene was shown and on the basis thereof, the victim was familiarized with the crime scene and that is why, contradictions exist inter-se between the first set of versions i.e. (a) the FIR (Ex. P/4) and (b) statement of the prosecutrix recorded under Section 164 Cr.P.C. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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