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TMI Blog2018 (3) TMI 2011X X X X Extracts X X X X X X X X Extracts X X X X ..... ench 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 societ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unishable under sections 363, 366A, 376A and 302 of the Indian Penal Code, 1860 (for short the IPC ) and section 4 of the Protection of Children From Sexual Offences Act, 2012 (for short the Act ), the learned trial Court passed an order on 6th October, 2017 permitting the reexamination of three witnesses, namely, Arjun Singh (PW9), Dr. Sunil Parashar (PW10) and N.P. Patel (PW16) and also ordered examination of constable Neeraj Rawat, Sainik Ramesh, Constable Tej Singh, Bharat, Hakum, Charan, Bhagwan, Santosh Rai and Halka Patwari Dharmendra and one Vandana alias Simma. It is the said order, which has been challenged before this Court relying upon a Single Bench decision of Gwalior Bench of this Court in the case of Imrat Singh and others v. State of MP. (2015 CriLJ 3473) inter alia contending that after the case is fixed for argument, the application for recall of the witnesses is not maintainable. 2. The learned Single Bench hearing the petition, had reservation about the judgment rendered in the case of Imrat Singh (supra), and therefore, the matter has been referred to the Larger Bench. 3. In Imrat Singh's case (supra), after final arguments were heard and case was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he prosecution to fill up the lacuna, which is not permissible. 6. On the other hand, Ms. Agarwal, learned Government Advocate for the State relied upon the judgment of the Supreme Court reported as 1991 Supp (1) SCC 271 (Mohanlal Shamji Soni v. Union of India and another) in which the scope of section 311 was elaborately discussed and it was held that section 311 of the Code is expressed in the widest possible terms and does not limit the discretion of the Court in any manner. However, the provisions require a corresponding caution that the discretionary power is to be invoked as the exigencies of justice require and exercised judicially with circumspection and consistently with the provisions of the Code. The relevant extract, reads as under: 7. section 540 was found in Chapter XLVI of the old Code of 1898 under the heading 'Miscellaneous'. But the present corresponding section 311 of the new Code is found among other sections in Chapter XXIV under the heading 'General Provisions as to Enquiries and Trials', section 311 is an almost verbatim reproduction of section 540 of the old Code except for the insertion of the words 'to be' before the word es ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... should be borne in mind that the aid of the section should be invoked only with the object of discovering relevant facts or obtaining proper proof of such facts for a just decision of the case and it must be used judicially and not capriciously or arbitrarily because any improper or capricious exercise of the power may lead to undesirable results. Further it is incumbent that due care should be taken by the Court while exercising the power under this section and it should not be used for filling up the lacuna left by the prosecution or by the defence or to the disadvantage of the accused or the cause serious prejudice to the defence of the accused or to give an unfair advantage to the rival side and further the additional evidence should not be received as a disguise for a retrial or to change the nature of the case against either of the parties. *** *** *** 21. At the risk of repetition it may be said that section 540 allows the Court to invoke its inherent power at any stage, as long as the Court retains seisin of the criminal proceeding, without qualifying any limitation or prohibition. Needless to say that an enquiry or trial in a criminal proceeding comes to an end or r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt held that lacuna in the prosecution must be understood as the inherent weakness or a latent wedge in the matrix of the prosecution case but an oversight in the management of the prosecution cannot be treated as irreparable lacuna. No party in the trial can be foreclosed from correcting the errors. The 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. The relevant extract of the judgment is reproduced as under: 7. It is a common experience in criminal Courts that defence counsel would raise objections whenever Courts exercise powers under section 311 of the Code or under section 165 of the Evidence Act, 1872 by saying that the Court could not 'fill the lacuna in the prosecution case'. A lacuna in the prosecution is not to be equated with the fallout of an oversight committed by a public prosecutor during trial, either in producing relevant materials or in eliciting relevant answers from witnesses. The adage 'to err is human' is the recognition of the possibility of making mistakes to which humans are prone. A corollary of any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all concerned. There can be no analytical, all comprehensive or exhaustive definition of the concept of a fair trial, and it may have to be determined in seemingly infinite variety of actual situations with the ultimate object in mind viz. whether something that was done or said either before or at the trial deprived the quality of fairness to a degree where a miscarriage of justice has resulted. It will be not correct to say that it is only the accused who must be fairly dealt with. That would be turning Nelson's eyes to the needs of the society at large and the victims or their family members and relatives . Each one has an inbuilt right to be dealt with fairly in a criminal trial. Denial of a fair trial is as much injustice to the accused as is to the victim and the society. Fair trial obviously would mean a trial before an impartial Judge, a fair prosecutor and atmosphere of judicial calm. Fair trial means a trial in which bias or prejudice for or against the accused, the witnesses, or the cause which is being tried is eliminated. If the witnesses get threatened or are forced to give false evidence that also would not result in a fair trial. The failure to hear material wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 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 to such prosecuting agency showing indifference or adopting an attitude of total aloofness. (Emphasis supplied) 12. The Supreme Court in Vijay Kumar v. State of Uttar Pradesh and another [ (2011) 8 SCC 136], 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. The Court held as under: 13. section 311 of the Code of Criminal Procedure reads as under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same has been laid before it and brought on record. Therefore, the trial Court was not justified in dismissing the application of the accused under section 311 of the Code for permission to examine the witnesses. The relevant extract is quoted as under: 8. Section 311 Cr.P.C. empowers the Court to summon a material witness, or to examine a person present at any stage of any enquiry , or trial , or any other proceedings under the Cr.P.C., or to summon any person as a witness, or to recall and re-examine any person who has already been examined if his evidence appears to it, to be essential to the arrival of a just decision of the case. Undoubtedly, the Cr.P.C. has conferred a very wide discretionary power upon the Court in this respect, but such a discretion is to be exercised judiciously and not arbitrarily. The power of the Court in this context is very wide, and in exercise of the same, it may summon any person as a witness at any stage of the trial, or other proceedings. The Court is competent to exercise such power even suo motu if no such application has been filed by either of the parties. However, the Court must satisfy itself, that it was in fact essential to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is is a constitutional, as well as a human right. Thus, under no circumstances can a person's right to fair trial be jeopardized. Adducing evidence in support of the defence is a valuable right. Denial of such right would amount to the denial of a fair trial. Thus, it is essential that the rules of procedure that have been designed to ensure justice are scrupulously followed, and the Court must be zealous in ensuring that there is no breach of the same. (Vide: Talab Haji Hussain v. Madhukar Purshottam Mondkar and another, [AIR 1958 SC 376]; Zahira Habibulla H. Sheikh and another v. State of Gujarat and others, AIR 2004 SC 3114]; Zahira Habibullah Sheikh and another v. State of Gujarat and others, [AIR 2006 SC 1367]; Kalyani Baskar (Mrs.) v. M.S. Sampoornam (Mrs.), [(2007) 2 SCC 258]; Vijay Kumar v. State of U.P. and another, [(2011) 8 SCC 136]; and Sudevanand v. State through C.B.I., [(2012) 3 SCC 387)]. (Emphasis supplied) 14. In a later judgment reported as (2013) 14 SCC 461 (Rajaram Prasad Yadav v. State of Bihar and another) it was held that section 311 of the Code can be invoked only by bearing in mind the object and purport of the said provision, namely, for achiev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt must necessarily consider and ensure that such recall and re-examination of any person, appears in the view of the Court to be essential for the just decision of the case. Therefore, the paramount requirement is just decision and for that purpose the essentiality of a person to be recalled and re-examined has to be ascertained. To put it differently, while such a widest power is invested with the Court, it is needless to state that exercise of such power should be made judicially and also with extreme care and caution. *** *** *** 17. From a conspectus consideration of the above decisions, while dealing with an application under section 311 Cr.P.C. read along with section 138 of the Evidence Act, we feel the following principles will have to be borne in mind by the Courts: 17.1 Whether the Court is right in thinking that the new evidence is needed by it? Whether the evidence sought to be led in under section 311 is noted by the Court for a just decision of a case? 17.2 The exercise of the widest discretionary power under section 311 Cr.P.C. should ensure that the judgment should not be rendered on inchoate, inconclusive and speculative presentation of facts, as ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... must not be received as a disguise or to change the nature of the case against any of the party. 17.13 The power must be exercised keeping in mind that the evidence that is likely to be tendered, would be germane to the issue involved and also ensure that an opportunity of rebuttal is given to the other party. 17.14 The power under section 311 Cr.P.C. must, therefore, be invoked by the Court only in order to meet the ends of justice for strong and valid reasons and the same must be exercised with care, caution and circumspection. The Court should bear in mind that fair trial entails the interest of the accused, the victim and the society and, therefore, the grant of fair and proper opportunities to the persons concerned, must be ensured being a constitutional goal, as well as a human right. (Emphasis supplied) 15. The Supreme Court in its judgment reported as (2016) 2 SCC 402 [State (NCT of Delhi) v. Shiv Kumar Yadav and another) has taken a similar view as has been taken in Rajaram Prasad Yadav (supra), and held that fairness of the trial has to be seen not only from the point of view of the accused but also from the point of view of the victim and society. In the na ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... This power is to be exercised only for strong and valid reasons and it should be exercised with caution and circumspection. Recall is not a matter of course and the discretion given to the Court has to be exercised judicially to prevent failure of justice. Therefore, the reasons for exercising this power should be spelt out in the order. 17. The Supreme Court in its decision reported as (2014) 13 SCC 59 (Mannan Shaikh and others v. State of West Bengal and another) has held that the aim of every Court is to discover truth, section 311 of the Code 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 if his evidence appears to be essential for the just decision. It was also held that the cause of justice must not be allowed to suffer because of the oversight of the prosecution. The relevant extract of the said judgment reads, thus: 22. In the ultimate analysis we must record that the impugned order merits no interference. We must, however, clarify that oversight of the prosecution is not a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce was that the argument had been heard. 20. 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. As held by the Supreme Court in Mannan Shaikh (supra), the lapse in the prosecution cannot be used to defeat the cause of justice. 21. Consequently, we hold that the judgment of this Court in Imrat Singh (supra), 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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