Dr. AD Subba and Others vs Gagan Rai

S.P. Wangdi, J.—Heard.

At the very outset, Mr. K.T. Bhutia, learned Senior Advocate, appearing on behalf of the petitioners, submitted in his usual fairness that the petition been filed as Criminal Revision Petition, when it ought to have been a Criminal Misc. Case, as the petitioners seek to impugn the order of the Sessions Judge, South and West at Namchi, in exercise of its revisional jurisdiction by invoking this Court''s inherent power u/s 482 CrPC.

We have gone through the Sikkim High Court (Practice and Procedure) Rules 1991, in terms of which such an application ought to be numbered as Criminal Misc. Case. As prayed for by Mr. K.T. Bhutia, the petitioners are permitted to change the cause title of the application, which may be done in course of the day.

We have heard on the merits of the application, and in view of the fact that the issue involved in the case is purely a question of law, it would be convenient to dispose of the matter at this stage in order to ensure speedy disposal of the matter pending before the learned trial Court.

It is the case on behalf of the petitioners that after the evidence was closed on behalf of the complainant and statements u/s 313 of the Code of Criminal Procedure of the petitioners had been recorded, the respondents had sought permission to file an application seeking to place on record certain documents which the learned trial Court allowed on the finding that the nature of the documents filed were relevant for an effective adjudication of the matter. Being aggrieved, the petitioners had filed a revisional application before the learned District and Sessions Judge, South and West at Namchi, who, after hearing upheld the order of the learned trial Court vide order dated 17.11.2010.

Mr. Bhutia further submits that the orders passed by the learned trial Court and the learned revisional court below were against the very spirit of the Evidence Act and not permissible even under the Code of Criminal Procedure, 1973. It is his case that certificates cannot be considered as evidence in the manner it was being sought and no document can be considered by the trial Court without the opposite parties an being given opportunity to meet them, either by cross examination or otherwise. The factual position in respect of the case is not denied on behalf of the respondent.

Having considered the submission on behalf of the parties, the only issue that needs consideration for disposal of this application is, as to whether the orders of the learned trial Court and the learned revisional Court should be allowed to stand as it is or ought they be set aside. While considering this aspect, this Court is of the view that it would be inappropriate to dispose of the matter on this short point alone if the interest of justice is to be satisfied. The inherent powers are to be exercised where the Court is of the opinion that there would be miscarriage of justice if not interfered with. When we consider the cause of justice, it is to be done in a broader sense, i.e., justice to both the parties before the Court.'' From the findings of the learned trial Court, it appears that the documents would be considered while finally adjudicating the complaint. We may reproduce the relevant portion of the order of the trial Court which reads as under:

I do not find any genuine objections raised by the defence. It appears that the said confirmation letter would not cause any prejudice to the parties but on the other hand would be essential for proper adjudication of this matter. Accordingly, the same is allowed and placed on record in the interest of justice.

What surprises this Court is that if the documents are essential for proper adjudication of the matter, no purpose would be served in simply placing them on record, because unless those documents are exhibited and the opposite parties allowed to meet them either by cross examination of the witnesses or otherwise, the documents would be useless sheets of paper burdening the docket. This basic principle of law appears to have escaped the notice of the revisional Court also.

The learned Senior Counsel on behalf of the petitioners submits that it would be quite apparent from the last portion of the order dated 17.11.2010 of the learned trial Court that the documents filed by the respondent shall be considered while disposing of the complaint. The apprehension expressed by Mr. K.T. Bhutia that if the impugned order of the appellate court is allowed to'' subsist, the petitioners shall be seriously prejudiced for being denied the opportunity of rebutting those documents by cross-examining the well prosecution witnesses, is founded,

The question that would then arise would be as to whether it is permissible in law to permit the prosecution to bring in new evidence after the evidence of the parties have been closed and also as to whether a witness for the prosecution can be recalled at that stage.

The law in this regard appears to be quite well settled. Section 311 Cr.P.C. confers upon the Court wide discretion to act as the exigencies of justice require and that the use of the word "any" in that section clearly indicated that it is intended to be wide. We may, in this regard, refer to the case of Jamatraj Kewalji Govani Vs. The State of Maharashtra, , in which it has held as follows:

10.......As the section stands there is no limitation on the power of the Court arising from the stage to which the trial may have reached, provided the Court is bona fide of the opinion that for the just decision of the case, the step must be taken. It is clear that the requirement of just decision of the case does not limit the action to something in the interest of the accused only. The action may equally benefit the prosecution. There are, however, two aspects of the matter which must be distinctly kept apart. The first is that the prosecution cannot be allowed to rebut the defence evidence unless the prisoner brings forward something suddenly and unexpectedly.

Section 311 Cr.P.C. consists of two parts. The first being mandatory and the second discretionary. We may reproduce Section 311 Cr.P.C. equal to Section 540 of the old Code for convenience:

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.

In paragraph 10 of the decision (supra) it has been held as follows:

(10) Section 540 (sic) intended to be wide as the repealed use of the word ''any'' throughout its length clearly indicates. The section is in two parts. The first part give a discretionary power but the latter part is mandatory. The use of the word ''may'' in the first part and of the word ''shall'' in the second firmly establishes this difference. Under the first part, which is permissive, the court may act in one of three ways: (a) summon any person as a witness, (b) examine any person present in court al though not summoned, and (c) recall or re-examine a witness already examined. The second part is obligatory and compels the Court to act in these three ways or anyone of them, if the just decision of the case demands it.

We may also refer to the case of Ram Jeet and Others Vs. The State, , in which a Division Bench of the Allahabad High Court while enunciating the above principle held as follows:

(3) The contention that Section 540 of the Code cannot be used for filling loopholes left by the parties is not infrequently found contained in judgments of subordinate Court and in submissions made from the Bar, but is nonetheless a misconceived one. Section 540 is in these words.

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 essential to the just decision of the case.

The section is manifestly in two parts, and what I should like to emphasize is that whereas the word used in the first part is "may", the second part uses "shall". In consequence, the first part gives purely discretionary authority to the criminal Court and enables it at any stage of any enquiry, trial or other proceeding under the Code (a) to summon anyone as a witness, or (b) to examine any person present in Court or (c) to recall and re-examine any person whose evidence has already been recorded on the other hand, the second part is mandatory, and compels the Court to take any of the aforementioned steps if the new evidence appears to it essential to the just decision of the case.

The discretion given by the first part is very wide and its very width requires a corresponding caution on the part of the Court. But the second part does not allow for any discretion; it binds the Court to examine fresh evidence, and the only condition prescribed is that this evidence must be essential to the just decision of the case. Whether the new evidence is essential or not must of couse depend on the facts of each case and has to be determined by the presiding Judge."

From the decisions of the trial Court and the impugned order of the revisional Court, it becomes abundantly clear that they have exercised the discretion provided in the first part of Section 311 CrPC (Section 540 of the old Code), but thereafter failed to exercise the mandatory powers contained in the second part causing serious prejudice to the petitioners as rightly contended by Mr. K.T. Bhutia. While this Court does not find any reason to differ with the concurrent findings of the Trial Court and the Revisional Court as regards the relevance of the documents to the prosecution case, it is of the view that the petitioners cannot be deprived of their rights provided under the law.

In view of the above facts and circumstances, interest of justice would be met if the documents that have been allowed to be placed on record are permitted to be rebutted by the petitioners, for which purpose it would be essential to recall or summon necessary witnesses being cross-examined by them. The learned trial Court is accordingly directed to take necessary steps for compliance of the above procedure and that the entire exercise be completed within the month of February, 2011.

With these observations, the Criminal Misc case stands disposed of.

No order as to costs.