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TMI Blog2019 (4) TMI 2152X X X X Extracts X X X X X X X X Extracts X X X X ..... ensure that no prejudice is caused to anyone. The principles underlying Section 311 Code of Criminal Procedure and amplitude of the powers of the Court thereunder have been explained by this Court in several decisions. The Trial Court disposed of the application Under Section 311 Code of Criminal Procedure on entirely irrelevant considerations and the High Court also failed to exercise its jurisdiction Under Section 482 Code of Criminal Procedure while overlooking and ignoring the material and relevant aspects of the case. In our view, the said application Under Section 311 Code of Criminal Procedure deserves to be allowed. This appeal is allowed in the manner and to the extent that the impugned orders dated 31.05.2018 and 02.08.2018 are set aside and the application moved in this matter Under Section 311 Code of Criminal Procedure is allowed. - HON'BLE JUDGES ABHAY MANOHAR SAPRE AND DINESH MAHESHWARI JJ. For the Appellant : Rahul Mohod, Raju Sonkar, Arun Adhalakha and Karunakar Mahalik, Advs. For the Respondents : Anish Roy, Milind Kumar and T. Harish Kumar, Advs. JUDGMENT DINESH MAHESHWARI, J. 1. Leave granted. 2. In Sessions Case No. 05 of 2015 in the Court of Additional S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s subjected to cruelty to the extent that it ultimately led to her death in Nigeria. 3.2. The first post-mortem of the dead-body of the Appellant's daughter was conducted by Dr. I. Yusuf in Aminu Kanu Teaching Hospital, Nigeria on 16.01.2010 who, upon examination, stated his opinion that the cause of death was asphyxia secondary to strangulation . Thereafter, the dead-body of the Appellant's daughter was brought to India where a Medical Board was constituted for further post-mortem but the Medical Board stated that no definite opinion could be formed regarding the time and cause of death of the daughter of the Appellant. After investigation, charge-sheet was filed against the Respondent No. 2 for the offences Under Sections 302, 304-B and 498-A Indian Penal Code. 3.3. In the trial, the prosecution led its evidence and various witnesses were examined but as the members of the Board were unable to give any definite opinion as to the cause of death, an application Under Section 311 Code of Criminal Procedure was moved by the Appellant, for issuance of summons to the said Dr. I. Yusuf, Department of Pathology, Aminu Kanu Teaching Hospital, Nigeria, who had first conducted the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... interfere. 8. Having given thoughtful consideration to the rival submissions and having examined record with reference to the law applicable, we find it difficult to approve the orders impugned; and it appears just and proper that the application moved in this matter Under Section 311 Code of Criminal Procedure be allowed with direction to the Trial Court to ensure that the testimony of the doctor conducting first post-mortem comes on record. 9. Section 311 Code of Criminal Procedure reads as under: 311. Power to summon material witness, or examine person present: Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case. 9.1. It needs hardly any emphasis that the discretionary powers like those Under Section 311 Code of Criminal Procedure are essentially intended to ensure that every necessary and appropriate measure is taken by the Court to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... application Under Section 311 Code of Criminal Procedure must not be allowed only to fill up a lacuna in the case of the prosecution, or of 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 opposite party. Further, the additional evidence must not be received as a disguise for retrial, or to change the nature of the case against either of the parties. Such a power must be exercised, provided that the evidence that is likely to be tendered by a witness, is germane to the issue involved. An opportunity of rebuttal however, must be given to the other party. The power conferred Under Section 311 Code of Criminal Procedure 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 great caution and circumspection. The very use of words such as any Court , at any stage , or or any enquiry, trial or other proceedings , any person and any such person clearly spells out that the provisions of this Section have been expressed in the widest possible terms, and do not limit the discretion of the Court in a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he case was pending since the year 2010. The High Court, on the other hand, chose not to exercise its powers Under Section 482 Code of Criminal Procedure, with the only observation that the discretion so exercised by the Trial Court was not to be interfered with. 12. Though it is expected that the trial of a sessions case should proceed with reasonable expedition and pendency of such a matter for about 8-9 years is not desirable but then, the length/duration of a case cannot displace the basic requirement of ensuring the just decision after taking all the necessary and material evidence on record. In other words, the age of a case, by itself, cannot be decisive of the matter when a prayer is made for examination of a material witness. 13. In the given set of facts and circumstances, where the witness Dr. I. Yusuf is residing in Nigeria, for the purpose of recording of his statement, the Trial Court could have unquestionably taken recourse to the provisions of Sections 284 and 285 Code of Criminal Procedure so as to avoid the delay in the matter and inconvenience to the parties and the witness. Sections 284 and 285 Code of Criminal Procedure read as under: Section 284. When attendan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 284 and 285 Code of Criminal Procedure. The Appellant stated in the application, inter alia, as under: That however witness is residing in foreign and post-mortem was conducted also there, hence witness should be summoned through High Commission of Nigeria or order may be passed of taking evidence record on commission after issuing commission Under Section 284, 285 in Code of Criminal Procedure through video conferencing in case of not coming from foreign. 13.2 The aforesaid relevant submissions of the Appellant have also been ignored by the Trial Court as also by the High Court. For the purpose of dealing with such a prayer of the Appellant the Trial Court could have, rather ought to have, taken guidance from the decisions of this Court including that in State of Maharashtra v. Dr. Praful B. Desai (2003) 4 SCC 601 where this Court approved of the process of recording the evidence of a witness in the criminal trial through video-conferencing when the witness was found residing/situate in the United States of America but whose evidence was essential for the case set up by the prosecution. This Court observed, inter alia, as under: 20. Recording the evidence by video-conferencing als ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... teps so as to ensure that his evidence comes on record with least inconvenience and/or burden to the parties and the witness. 14. In the given set of facts and circumstances, we are clearly of the view that the Trial Court disposed of the application Under Section 311 Code of Criminal Procedure on entirely irrelevant considerations and the High Court also failed to exercise its jurisdiction Under Section 482 Code of Criminal Procedure while overlooking and ignoring the material and relevant aspects of the case. In our view, the said application Under Section 311 Code of Criminal Procedure deserves to be allowed. 15. It goes without saying that we have not made any comments on the merits of the case; and the Trial Court would be expected to deal with the matter in accordance with law after assessment of the evidence brought on record. 16. Accordingly, this appeal is allowed in the manner and to the extent that the impugned orders dated 31.05.2018 and 02.08.2018 are set aside and the application moved in this matter Under Section 311 Code of Criminal Procedure is allowed. The Trial Court shall now take all the necessary measures for ensuring the examination of the witness concerned b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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