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TMI Blog2022 (8) TMI 1473X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 482 of the Code of Criminal Procedure 1973 ["CrPC"] registered as Misc. Criminal Case No. 57152 of 2021. 2 The petition addressed a challenge to the correctness of an order dated 13 November 2021 of the Second Additional Sessions Judge, Dr. Ambedkar Nagar, District Indore rejecting an application under Section 311 CrPC seeking to summon the nodal officers of certain cellular entities along with the decoding register to trace the mobile location of accused Vikas, Mangilal and Suresh. 3 The appellant is the spouse of an advocate who was brutally murdered outside his office at about 2330 hrs on 18 November 2015. Following the homicide, a First Information Report bearing Criminal Complaint No. 734 of 2015 was registered with Police Station ["P.S."] Mhow, District Indore on 19 November 2015 for an offence punishable under Section 302 read with Section 34 of the Indian Penal Code 1860 ["IPC"] The investigation was initiated. The post mortem report indicated that the homicide was caused due to a firearm injury. The second, third, fourth, fifth and sixth respondents (i.e., Vikas, Sawan, Mangilal, Suresh and Raju) were arrested during the course of the investigation. 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the CD was a vital piece of evidence and had been provided to all the accused along with the charge-sheet. Resultantly, the trial court was directed to take necessary steps for requisitioning the CD through the police station and for taking it on record from PW47. 7 On 15 March 2021, another application ("second application") was moved under Section 311 on behalf of the prosecution for summoning the decoding register. 8 On 5 July 2021, the prosecution filed an application ("third application") under Section 311 CrPC stating that the court had taken on record the CD and a certificate under Section 65B of the Evidence Act, in pursuance of the order of the High Court admitting its previous application. By filing the third application, the prosecution sought permission to summon the certificate issuer and examine said witness in order to prove the certificate. 9 On 16 July 2021, an application was filed by the prosecution ("fourth application") under Section 311 to summon the nodal officer of Idea and under Section 91 to produce the call data records of two mobile numbers. 10 On 22 September 2021, the trial court allowed the third application but dismissed the fourth application. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... seeking the summoning of the documents and the trial court was directed to pass a consequential order on the application. 13 It is however the other judgment of the High Court dated 8 April 2022 in Misc. Criminal Case No. 57152 of 2021 mentioned earlier which rejected the petition instituted by the appellant under Section 482 challenging the order of the trial judge dated 13 November 2021 dismissing the second application which has been called into question in these proceedings. 14 We have heard Mr Ramakrishnan Viraraghavan, senior counsel appearing on behalf of the appellant. Mr Shreeyash U Lalit, counsel for the State of MP has supported the submissions in the appeal. 15 Mr SK Gangele, senior counsel appears on behalf of the second, third and sixth respondents while Ms Bansuri Swaraj, appears on behalf of the fourth and fifth respondents. 16 The submission which has been urged by Mr Ramakrishnan Viraraghavan, senior counsel on behalf of the appellant and by Mr Shreeyash U Lalit, counsel for the State of MP are set out below: (i) The production of the decoding register is crucial to establish the corelationship between the location of the accused and the cell phone towe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Section 311, the balance of justice must weigh in favour of the accused. 20 First, we deal with the objection of the respondents regarding the bar in Section 301 of the CrPC on the basis of which it has been argued that it is not open to the Appellant who is the spouse of the deceased to pursue these proceedings. 21 The respondents have relied upon the decisions in Shiv Kumar v. Hukam Chand [(1999) 7 SCC 467] and Dhariwal Industries Ltd. v. Kishore Wadhwani [(2016) 10 SCC 378] to further their contention. However, both these cases deal with this Court having declined private counsel to conduct a prosecution instead of a Public Prosecutor in a sessions trial by relying upon the specific bar in Section 225 CrPC. Accordingly, these cases can be clearly distinguished from the facts of the present case. In the present case, even the application under Section 311 in the sessions trial was moved by the State and there is no question of the appellant wanting to replace the public prosecutor in the trial. 22 On the other hand, in Mina Lalita Baruwa v. State of Orissa [(2013) 16 SCC 173], the appellant was alleged to have been gang raped by the assailants who were arrayed as accused ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bility of the court to be alive and alert in the course of trial of a criminal case and ensure that the evidence recorded in accordance with law reflect upon every bit of vital information placed before it. It can also be said that in that process the court should be conscious of its responsibility and at times when the prosecution either deliberately or inadvertently omit to bring forth a notable piece of evidence or a conspicuous statement of any witness with a view to either support or prejudice the case of any party, should not hesitate to interject and prompt the prosecution side to clarify the position or act on its own and get the record of proceedings straight. Neither the prosecution nor the court should remain a silent spectator in such situations. Like in the present case where there is a wrong statement made by a witness contrary to his own record and the prosecution failed to note the situation at that moment or later when it was brought to light and whereafter also the prosecution remained silent, the court should have acted promptly and taken necessary steps to rectify the situation appropriately. The whole scheme of the Code of Criminal Procedure envisages fool proo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , who is also a Judicial Magistrate, ought to have risen to the occasion in public interest and remedied the situation by invoking Section 311 CrPC, by recalling the said witness with further direction to the Public Prosecutor for putting across the appropriate question or court question to the said witness and thereby set right the glaring error accordingly. It is unfortunate to state that the trial court miserably failed to come alive to the realities as to the nature of evidence that was being recorded and miserably failed in its duty to note the serious flaw and error in the recording of evidence of PW 18." 26 The objection which has been raised by the second, third and sixth respondents on the basis of the provisions of Section 301 CrPC lacks substance. Sub-section (1) of Section 301 stipulates that the Public Prosecutor or the Assistant Public Prosecutor in charge of a case may appear without written authority before any court in which the case is under inquiry, trial or appeal. Sub-section (2) of Section 301 postulates that if any such case, any private person instructs a pleader to prosecute any person in any court, the Public Prosecutor or Assistant Public Prosecutor in c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any witness and the only condition prescribed is that the evidence sought to be obtained must be essential to the just decision of the case. When any party to the proceedings points out the desirability of some evidence being taken, then the court has to exercise its power under this provision " either discretionary or mandatory" depending on the facts and circumstances of each case, having in view that the most paramount principle underlying this provision is to discover or to obtain proper proof of relevant facts in order to meet the requirements of justice." Justice S Ratnavel Pandian, speaking for the two judge Bench, noted that the power is couched in the widest possible terms and calls for no limitation, either with regard to the stage at which it can be exercised or the manner of its exercise. It is only circumscribed by the principle that the "evidence to be obtained should appear to the court essential to a just decision of the case by getting at the truth by all lawful means." In that context the Court observed: "18 ...Therefore, it should be borne in mind that the aid of the section should be invoked only with the object of discovering relevant facts or obtaining pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o issue summons to a person in whose possession or power a document or thing is believed to be, where it considers the production of the said document or thing necessary or desirable for the purpose of any investigation, inquiry, trial or other proceeding under the CrPC. 34 Section 91 forms part of Chapter VII of CrPC which is titled ""Processes to Compel the Production of Things". Chapter XVI of the CrPC titled "Commencement of Proceedings before Magistrates" includes Section 207 which provides for the supply to the accused of a copy of the police report and other documents in any case where the proceeding has been instituted on a police report[1]. Both operate in distinct spheres. 35 In the present case, the application of the prosecution for the production of the decoding registers is relatable to the provisions of Section 91 CrPC. The decoding registers are sought to be produced through the representatives of the cellular companies in whose custody or possession they are found. The decoding registers are a relevant piece of evidence to establish the co-relationship between the location of the accused and the cell phone tower. The reasons which weighed with the High Court and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cution's case. However, even the said reason cannot be an absolute bar to allowing an application under Section 311. 39 In the decision in Zahira Habibullah Sheikh (5) v. State of Gujarat [(2006) 3 SCC 374], which was more recently reiterated in Godrej Pacific Tech. Ltd. v. Computer Joint India Ltd. [(2008) 11 SCC 108], the Court specifically dealt with this objection and observed that the resultant filling of loopholes on account of allowing an application under Section 311 is merely a subsidiary factor and the Court's determination of the application should only be based on the test of the essentiality of the evidence. It noted that: "28. The court is not empowered under the provisions of the Code to compel either the prosecution or the defence to examine any particular witness or witnesses on their side. This must be left to the parties. But in weighing the evidence, the court can take note of the fact that the best available evidence has not been given, and can draw an adverse inference. The court will often have to depend on intercepted allegations made by the parties, or on inconclusive inference from facts elicited in the evidence. In such cases, the court has to act unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the application should not be allowed as it has been made at a belated stage. The Court in Swapan Kumar (supra) observed: "11. It is well settled that the power conferred under Section 311 should be invoked by the court only to meet the ends of justice. The power is to be exercised only for strong and valid reasons and it should be exercised with great caution and circumspection. The court has wide power under this Section to even recall witnesses for re-examination or further examination, necessary in the interest of justice, but the same has to be exercised after taking into consideration the facts and circumstances of each case. The power under this provision shall not be exercised if the court is of the view that the application has been filed as an abuse of the process of law. 12. Where the prosecution evidence has been closed long back and the reasons for non-examination of the witness earlier are not satisfactory, the summoning of the witness at belated stage would cause great prejudice to the accused and should not be allowed. Similarly, the court should not encourage the filing of successive applications for recall of a witness under this provision." In the pres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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) Further, in Zahira Habibullah Sheikh (5) (supra), the Court reiterated the extent of powers under Section 311 and held that: "27. 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. The determinative factor is whether it is essential to the just decision of the case. The section is not limited only for the benefit of the accused, and it will not be an improper exercise of the powers of the court to summon a witness under the section merely because the evidence supports the case of the prosecution and not that of the accused. The section is a general section which applies to all proceedings, enquiries and trials under the Code and empowers the Magistrate to issue summons to any witness at any stage of such proceedings, trial or enquiry. In Section 311 the significant expression that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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) While reiterating the decisions of this Court in Karnel Singh v. State of M.P. [(1995) 5 SCC 518], Paras Yadav v. State of Bihar [(1999) 2 SCC 126], Ram Bihari Yadav v. State of Bihar [(1998) 4 SCC 517] and Amar Singh v. Balwinder Singh [(2003) 2 SCC 518] this Court held that the court may interfere even at the stage of appeal: "64. It is no doubt true that the accused persons have been acquitted by the trial court and the acquittal has been upheld, but if the acquittal is unmerited and based on tainted evidence, tailored investigation, unprincipled prosecutor and perfunctory trial and evidence of threatened/terrorised witnesses, it is no acquittal in the eye of the law and no sanctity or credibility can be attached and given to the socalled findings. It seems to be nothing but a travesty of truth, fraud on the legal process and the resultant decisions of courts - coram non judis and non est. There is, therefore, every justification to call for interference in thes ..... X X X X Extracts X X X X X X X X Extracts X X X X
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