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TMI Blog2024 (1) TMI 438X X X X Extracts X X X X X X X X Extracts X X X X ..... r to meet the requirement of justice. The reason for not being able to bring the present materials on record at the relevant stage has been satisfactorily explained and as such the Trial Court should have allowed the prayer under Section 311 Cr.P.C., considering the materials on record, while carrying out its function of administration of criminal justice to meet the ends of justice. The accused/opposite party herein shall have ample opportunity and the liberty to counter the materials to be brought on record by the petitioner. The object underlying Section 311 of the Code 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 - In the present case, the documents sought to be brought on record are essential for arriving at a just decision and as such is to be allowed for the ends of justice. Revision allowed. - HON BLE JUSTICE SHAMPA DUTT (PAUL) For the Petitioner : Mr. Debasis Ray, Mr. Avik Ghatak, Ms. Arfeen Begum. For the State : None. For the Opposite Party No. 2 (In-person) : Ms. Kavita Saraff. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t and now pending before the learned 3rd Special Judge, CBI, Bankshall Court, Calcutta. 5. In connection to the said case, the CBI conducted a search at the premises belonging to the Opposite Party No. 2 and/or her husband located at 136, Cotton Street, 1st floor, Utkalmoni Gopabandhu Sarani, Kolkata - 700007 on 04.04.2009 at about 15:00 hrs. In the course of conducting such a search, the CBI seized multiple documents and articles from the Opposite Party No. 2. A seizure list, stating therein the details of documents and the articles seized by the CBI at the said premises on 04.04.2009 in connection with the aforementioned Special CBI Case no. 22 of 2010 was prepared. 6. The petitioner further submits that the following documents were also seized among others by the seizure list dated 04.04.2009 from the premises of the opposite party no. 2:- Entry no. 7: One cheque book of CA No. 277010200019761 of Axis Bank, Bara Bazar Branch held in the name of Kavita Saraff, containing cheques starting from 713317 to 713318, all signed by Kavita Saraff and issued in the name of Motilal Oswal Security Ltd., Krishna Smelters Pvt. Ltd., Bineet Saraff an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the CBI, while seizing the aforementioned cheque book referred to in Entry no. 7 of the said seizure list had merely referred to the counterfoils of cheques starting from 713317 to 713388 and that the said entry can never be interpreted to mean that the CBI had seized the said cheque book along with all the cheques mentioned in the said Entry no. 7. 10. It is submitted by Mr. Debasis Ray, learned counsel for the petitioner, that in order to reach a just decision and logical conclusion in connection with the present case, it was necessary to ascertain as to whether the subject cheque was indeed seized by the CBI on 04.04.2009 in connection with Special CBI Case No. 22 of 2010, or not and it was equally important to get the Income Tax Return of the Opposite Party No. 2 for the Assessment Year 2008-09 along with the set of balance sheet for the Financial year 2007-08/Assessment Year 2008-09, to be produced before the Learned Trial Court. 11. It is further submitted that, one Vivek Gupta, being one of the Directors of the petitioner Company, namely Kali International Pvt. Ltd, and also being a co-accused person in the aforementioned Special CBI Case no. 22 of 2010, preferred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... raying therein for supply of certain documents which had been seized by the C.B.I. in connection with the Special CBI Case no. 22 of 2010 before the Learned 3rd Special Judge (C.B.I.), Calcutta. The copies of the said documents had been supplied to him vide order dated 06.05.2022. 15. The petitioner then filed an application under Section 311 of the Code of Criminal Procedure on 06.05.2022 before the Court of the Learned Metropolitan Magistrate, 14th Court, Calcutta, thereby praying for recalling and re-examination of the Prosecution Witness no. 1 in connection with Complaint Case No. C-34911 of 2009 and permitting it to exhibit the documents that have been supplied by the CBI on 17.03.2022 pursuant to the order dated 23.02.2022, passed in connection with Special Case No. 22 of 2010. 16. A supplementary petition on 23.02.2023 was filed before the Court of the Learned Metropolitan Magistrate, 14th Court, Calcutta, thereby bringing on record the facts and developments which took place subsequent to the filing of the application under Section 311 of the Code of Criminal Procedure. 17. The said application under Section 311 of the Code of Criminal Procedure along with the supp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sition, relying upon several additional documents. 21. Written notes of arguments has been filed along with the judgments relied upon by both parties. 22. The following judgments have been relied upon by the petitioner:- i) Varsha Garg v. State of Madhya Pradesh Ors., 2022 SCC Online SC 986. ii) P. Sanjeeva Rao v. State of Andhra Pradesh, (2012) 7 SCC 56. iii) Zahira Habibullah Sheikh (5) Anr v. State of Gujarat Ors., (2006) 3 SCC 374. iv) Hanuman Ram V. State of Rajasthan Ors., (2008) 15 SCC 652. v) Mohanlal Shamji Soni v. Union of India Anr., 1991 Supp (1) SCC 271. 23. The judgments relied upon by the opposite party no. 2 are as follows:- i) G. Someshwar Rao Vs. Samineni Nageshwar Rao Anr., (2009) 14 SCC 677. ii) Swapan Kumar Chatterjee Vs. CBI, (2019) 14 SCC 328. iii) Joint Action Committee of Airline Pilots' Association of India Ors. Vs. D.G. of Civil Aviation Ors., (2011) 5 SCC 435. iv) Petlad Turkey Red Dye Works Co.Ltd. Vs. Deyes and Chemical Workers' Union Ors., AIR 1960 SC 1006. v) Rajendra Prasad Vs Narcotic Cell, (1999) 6 SCC 110. vi) Girish Kumar Suneja Vs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 713323 08.07.08 2,00,00,000/- Krishna S.P Ltd. 4 713327 12.07.08 51,000/- Motilal Oswal Securities Ltd. 5 713329 19.07.08 2,50,00,000/- Kali International Pvt. Ltd. 6 713330 25.07.08 3,00,00,000/- Krishna Smelters Pvt. Ltd. 7 713339 28.07.08 50,00,000/- Indian Textile Products 8 713337 28.07.08 30,00,000/- Krishna Smelter Pvt. Ltd. 9 713338 29.07.08 3,00,00,000/- Rajco Steel Enterprise 10 713333 02.08.08 3,00,00,000/- Krishna Smelter Pvt. Ltd. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 16.09.08 2708/- Variety Museum 28 713365 23.09.08 1,00,00,000/- Kali International Pvt. Ltd. 29 713367 26.09.08 10,00,000/- Saraju Associates 30 713366 26.09.08 13,98,634/- Bengal NRI Complex Ltd. 31 713362 01.10.08 50,00,000/- Motilal Oswal Securities Ltd 32 713368 01.10.08 1,00,00,000/- Motilal Oswal Securities Ltd 33 713369 03.10.08 1,00,00,000/- Motilal Oswal Securities Ltd 34 713370 04.10.08 50,00,000/- Motilal Oswal Securities Ltd 35 713372 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 10.11.2008 is also dated prior to the seizure and is part of the same cheque book. 25. In Varsha Garg vs State of Madhya Pradesh Ors., 2022 SCC OnLine SC 986 , the Supreme Court examined Section 311 of the Cr.P.C. by holding as follows:- 31. Having clarified that the bar under Section 301 is inapplicable and that the appellant is well placed to pursue this appeal, we now examine Section 311 of CrPC. Section 311 provides that the Court may : (i) Summon any person as a witness or to examine any person in attendance, though not summoned as a witness; and (ii) Recall and re-examine any person who has already been examined. 32. This power can be exercised at any stage of any inquiry, trial or other proceeding under the CrPC. The latter part of Section 311 states that the Court shall summon and examine or recall and re-examine any such person if his evidence appears to the Court to be essential to the just decision of the case . Section 311 contains a power upon the Court in broad terms. The statutory provision must be read purposively, to achieve the intent of the statute to aid in the discovery of truth. 33. The first part of the statutory prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndesirable 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 to 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. 36. Summing up the position as it obtained from various decisions of this Court, namely Rameshwar Dayal v. State of U.P., State of W.B. v. Tulsidas Mundhra, Jamatraj Kewalji Govani v. State of Maharashtra, Masalti v. State of U.P., Rajeswar Prosad Misra v. State of W.B. and R.B. Mithani v. State of Maharashtra, the Court held: 27. The principle of law that emerges from the views expressed by this Court in the above decisions is that the criminal court has ample power to summon any person as a witness or recall and re-examine any such person even if the evidence on both sides is closed and the jurisdiction of the court must obviously be dictated by ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be filling of loopholes . That is purely a subsidiary factor and cannot be taken into account. Whether the new evidence is essential or not must of course depend on the facts of each case, and has to be determined by the Presiding Judge. (emphasis supplied) 45. The right of the accused to a fair trial is constitutionally protected under Article 21. However, in Mina Lalita Baruwa (supra), while reiterating Rajendra Prasad (supra), the Court observed that it is the duty of the criminal court to allow the prosecution to correct an error in interest of justice. In Rajendra Prasad (supra), the Court had held that: 8. Lacuna in the prosecution must be understood as the inherent weakness or a latent wedge in the matrix of the prosecution case. The advantage of it should normally go to the accused in the trial of the case, but an oversight in the management of the prosecution cannot be treated as irreparable lacuna. No party in a trial can be foreclosed from correcting errors. If proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the court should be magnanimous in permitting such mistakes to be rectified. After all, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the ultimate objective i.e. truth is arrived at. This becomes more necessary where 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 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 of such prosecuting agency showing indifference or adopting an attitude of total aloofness. (emphasis supplied) 50. Further, in Zahira Habibullah Sheikh (5) (supra), the Court reiterated the extent of powers und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... However, as noted above, the very width requires a corresponding caution that the discretionary powers should be invoked as the exigencies of justice require and exercised judicially with circumspection and consistently with the provisions of the Code. The second part of the section does not allow any discretion but obligates and binds the court to take necessary steps if the fresh evidence to be obtained is essential to the just decision of the case, essential to an active and alert mind and not to one which is bent to abandon or abdicate. Object of the section is to enable the court to arrive at the truth irrespective of the fact that the prosecution or the defence has failed to produce some evidence which is necessary for a just and proper disposal of the case. The power is exercised and the evidence is examined neither to help the prosecution nor the defence, if the court feels that there is necessity to act in terms of Section 311 but only to subserve the cause of justice and public interest. It is done with an object of getting the evidence in aid of a just decision and to uphold the truth. (emphasis supplied) 52. While reiterating the decisions of this Court in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts of the witnesses examined from either side. The determinative factor is whether it is essential to the just decision of the case. (Zahira Habibullah Sheikh (5) Anr. vs State of Gujarat Ors., Appeal (Crl.) 446-449 of 2004, on 8th March, 2006). 29. In the present case, the documents sought to be brought on record are essential for arriving at a just decision in the case as discussed earlier in this judgment and as such is to be allowed for the ends of justice. 30. CRR 1714 of 2023 is thus allowed. 31. The order under revision dated 06.04.2023 passed in C. Case No. 34911 of 2009 by the learned 14th Court of Metropolitan Magistrate, Kolkata not being in accordance with law is set aside. 32. The petition under Section 311 Cr.P.C. filed by the petitioner on 06.05.2022 and the supplementary petition dated 23.02.2023 are allowed. 33. The learned Metropolitan Magistrate 14th Court is directed to dispose of the case, on permitting the petitioner to bring in the documents on record as prayed for in the petition under Section 311 Cr.P.C., dated 06.05.22 and the supplementary petition dated 23.02.23, as per the said provision, within six months from the date of this order. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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