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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 ..... is conditioned by the requirement that the evidence of the person who is sought to be summoned appears to the Court to be essential to the just decision of the case. The Court is vested with a broad and wholesome power, in terms of Section 311 of the CrPC, to summon and examine or recall and re-examine any material witness at any stage and the closing of prosecution evidence is not an absolute bar. Appeal allowed. - Dr. Dhananjaya Y Chandrachud And AS Bopanna, JJ. For the Appellant : Mr. Ramakrishnan Viraraghvan, Sr. Adv., Mr. Preetam Shah, Adv., Mr. K. Krishna Kumar, AOR MA 1144/2022 : Ms. Shashi Kiran, AOR For the Respondent : Mr. Shreeyash U. Lalit, Adv., Mr. Pashupathi Nath Razdan, AOR, Mirza Kayesh Begg, Adv., Mr. Shaddab Anwar, Adv., Mr. Prakhar Srivastav, Adv., Ms. Ayushi Mittal, Adv., Mr. Astik Gupta, Adv., Mr. S.K. Gangele, Sr. Adv., Ms. Priya Sharma, Adv., Mr. Prathui Raj Chauhan, Adv., Ms. Ritu Gangele, Adv., Mr. Arup Banerjee, AOR, Ms. Bansuri Swaraj, Adv., Mr. Siddhesh Kotwal, Adv., Ms. Manya Hasija, Adv., Ms. Ana Upadhyay, Adv., Mr. Akash Singh, Adv., Mr. Nihar Dharamadhikari, Adv., Mr. Nirnimesh Dube, AOR. JUDGMENT DR DHANANJA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mined by the prosecution as PW47 on 31 October 2018. PW47 had filed the supplementary charge-sheet and had prepared a compact disc [ CD ] with call details of the co-accused. He also admitted that he had not filed a certificate as required under Section 65B of the Indian Evidence Act 1872 [ IEA ] in relation to the CD. 6 The statements of accused Suresh (the fifth respondent) and Mangilal (the fourth respondent) under Section 313 CrPC were recorded on 25 January 2020 and 12 February 2020 respectively. During the course of the trial, the CD had been produced but since it was found to be ‗corrupted , an application was made to the trial court to requisition the copy of the CD which was available at the police station. The application was allowed on 15 November 2019. On the subsequent date, PW47 marked his appearance. On the next date of hearing, when PW47 was required to produce the CD which was kept at the police station, he failed to do so. In those circumstances, an application ( first application ) was preferred to requisition the said CD but this application was rejected by the trial court on the ground that the evidence of PW47 had been recorded and a last oppo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecution has closed its evidence; and C. The application has been filed at a belated stage without collecting all the relevant information (for instance, whether the decoding register is available with the service provider or not). 12 Separately, on the same date i.e. 8 April 2022, the High Court also disposed of two proceedings under Section 482 instituted by the State of Madhya Pradesh [MCrC No. 61600 of 2021] and by the appellant [MCrC No. 51642 of 2021] challenging the order of the trial court dated 22 September 2021 dismissing the fourth application under Section 91 CrPC for summoning of documents. The Single Judge noted that the application under Section 91 had been filed by the prosecution for summoning the CDR and CAF of two mobile numbers on the ground that they were crucial for establishing the guilt of accused Sawan. It was urged before the High Court that PW41, the nodal officer of Airtel, had specifically deposed that he had forwarded the call details of the mobile numbers to the SDOP along with a letter dated 11 January 2016 (Exhibit P/103) but these were not filed along with the charge-sheet. However, the High Court held that since these documents were avail ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the deceased to pursue these proceedings; (ii) The nodal officers have already been examined on 7 May 2018, 17 July 2018 and 31 October 2019; (iii) The locations have been mentioned by the witnesses; and (iv) All relevant documents are already on record. 18 Ms Bansuri Swaraj, counsel appearing on behalf of the respondents four and five submitted that: (i) Four applications were submitted by the prosecution under Section 311 CrPC; (ii) 53 witnesses have been examined; (iii) Final arguments at the trial are to be addressed on 25 July 2022; (iv) In view of the decision of this Court in Swapan Kumar Chatterjee v. Central Bureau of Investigation [(2019) 14 SCC 328] , an application under Section 311 CrPC ought not be allowed where: a. It is an abuse of the process of the Court; or b. The prosecution s evidence was closed long back. (v) The prosecution s evidence was closed long back; (vi) The reasons for non-examination of the witnesses earlier are not satisfactory; (vii) The accused had been denied bail and are in custody as under trials for over 6.5 years; and (viii) The right to a speedy trial is an integral component of Article 21 of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dge rejected the application on the ground of maintainability, holding that such an application could not have been filed at the instance of the victim. The High Court, placing reliance on the provisions of Section 301 CrPC observed that the informant had a limited role to play and it was not open to her to file an application for recalling witnesses. In this backdrop, this Court examined the provisions of Section 301. Section 301 is extracted below: 301. Appearance by Public Prosecutors. (1) The Public Prosecutor or Assistant Public Prosecutor in charge of a case may appear and plead without any written authority before any Court in which that case is under inquiry, trial or appeal. (2) If in any such case any private person instructs a pleader to prosecute any person in any Court, the Public Prosecutor or Assistant Public Prosecutor in charge of the case shall conduct the prosecution, and the pleader so instructed shall act therein under the directions of the Public Prosecutor or Assistant Public Prosecutor, and may, with the permission of the Court, submit written arguments after the evidence is closed in the case. 23 The Court observed: 19. In criminal jurispr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not permissible, the anomalous evidence deposed by PW-18 having been brought to its knowledge should have examined the scope for invoking Section 311 and set right the position. Unfortunately, as stated earlier, the trial Court was in a great hurry in rejecting the appellant s application without actually relying on the wide powers conferred on it under Section 311 CrPC for recalling PW-18 and ensuring in what other manner, the grievance expressed by the victim of a serious crime could be remedied. In this context, a reference to some of the decisions relied upon by the counsel for the appellant can be usefully made. 25 Further, the Court while relying upon the earlier decisions in J.K. International v. State (Govt. of NCT of Delhi) [(2001) 3 SCC 462] , Zahira Habibulla H. Sheikh v. State of Gujarat [(2004) 4 SCC 158], Manu Sharma v. State (NCT of Delhi) [(2010) 6 SCC 1], Mohanlal Shamji Soni v. Union of India [(1991) Supp (1) SCC 271], Rajendra Prasad v. Narcotic Cell [(1999) 6 SCC 110], noted: 31 a criminal court cannot remain a silent spectator. It has got a participatory role to play and having been invested with enormous powers under Section 311 CrPC, as well as S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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. 29 The first part of the statutory provision which uses the expression may postulates that the power can be exercised at any stage of an inquiry, trial or other proceeding. The latter part of the provision mandates the recall of a witness by the Court as it uses the expression shall summon and examine or recall and reexamine any such person if his evidence appears to it to be essential to the just decision of the case . Essentiality of the evidence of the person who is to be examined coupled with the need for the just decision of the case constitute the touchstone which must guide the decision of the Court. The first part of the statutory provision is discretionary while the latter part is obligatory. 30 A two judge Bench of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Supp 1 SCR 1], Jamatraj Kewalji Govani v. State of Maharashtra [(1967) 3 SCR 415], Masalti v. State of U.P. [(1964) 8 SCR 133], Rajeswar Prosad Misra v. State of W.B. [(1966) 1 SCR 178] and R.B. Mithani v. State of Maharashtra [(1971) 1 SCC 523], 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 exigency of the situation, and fair play and good sense appear to be the only safe guides and that only the requirements of justice command the examination of any person which would depend on the facts and circumstances of each case. 32 The power of the court is not constrained by the closure of evidence. Therefore, it is amply clear from the above discussion that the broad powers under Section 311 are to be governed by the requirement of justice. The power must be exercised wherever the court finds that any evidence is essential for the just decision of the case. The statutory provision goes t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amination that: 2. Call detail of mobile number XXXXXXXXXX, which has 134 pages is Exhibit P-104, I sent the same detail of the call to the police. Each page of the same has seal of Bharti Airtel on the same. Call detail contains date and time wise detail of call and short message services made/sent and received by the customer. Additionally, location of the mobile number is available in code number along with the time of the call or message for which call detail is provided. Location of the call made by the mobile number in certain time has been shown with codes, I cannot state name of the location today by seeing the code. Location can be stated after decoding the same. We have coding chart for location, by seeing the same location can be started. I don t have aforesaid chart along with me. Aforesaid chart is available in the office. (emphasis supplied) 37 The relevance of the decoding register clearly emerges from the above statement of PW-41. Hence, the effort of the prosecution to produce the decoding register which is a crucial and vital piece of evidence ought not to have been obstructed. In terms of the provisions of Section 311, the summoning of the witness fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... secution 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, 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. (emphasis supplied) In the present case, the importance of the decoding registers was raised in the examination of PW-41. Accordingly, the decoding registers merely being additional documents required to be able to appreciate the existing evidence in form of the call details which are already on record but use codes to signify the location of accused, a crucial detail, which can be decoded only through the decoding registers, the right of the accused to a fair trial is not prejudiced. The production of the decoding registers fits into the requirement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 311 of the CrPC, to summon and examine or recall and re-examine any material witness at any stage and the closing of prosecution evidence is not an absolute bar. This Court in Zahira Habibulla H. Sheikh (supra) while dealing with the prayers for adducing additional evidence under Section 391 CrPC at the appellate stage, along with a prayer for examination of witnesses under Section 311 CrPC explained the role of the court, in the following terms: 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 the ultimate objective i.e. truth is arrived at. This becomes more necessary where the court has reasons to believe t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he mandatory portion which compels the court to examine a witness if his evidence appears to be essential to the just decision of the court. Though the discretion given to the court is very wide, the very width requires a corresponding caution. In Mohanlal v. Union of India this Court has observed, while considering the scope and ambit of Section 311, that the very usage of the words such as, any court , at any stage , or any enquiry or trial or other proceedings , any person and any such person clearly spells out that the section has expressed in the widestpossible terms and do not limit the discretion of the court in any way. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by 31 October 2022. MA No. 1144 of 2022 in SLP (Crl.) No. 2239 of 2022 45 The application has been filed on behalf of one of the accused Mangilal Thakur - who was granted interim bail on medical grounds on 6 May 2022 in SLP (Crl.) No. 2239 of 2022 for a period of thirty days from the date of his release. In view of the continuing medical condition of the accused, we deem it appropriate and proper to extend the interim bail which was granted by order of this Court up to 31 October 2022 subject to the same terms and conditions. 46 Pending application(s), if any, stand disposed of. [1] Section 207 in The Code Of Criminal Procedure, 1973 207. Supply to the accused of copy of police report and other documents. In any case where the proceeding has been instituted on a police report, the Magistrate shall without delay furnish to the accused, free of cost, a copy of each of the following:- (i) the police report; (ii) the first information report recorded under section 154; (iii) the statements recorded under sub- section (3) of section 161 of all persons whom the prosecution proposes to examine as its witnesses, excluding therefrom any part in reg ..... X X X X Extracts X X X X X X X X Extracts X X X X
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