Hari Singh vs State of Haryana

Amar Bir Singh Gill, J.

The petitioner has invoked the inherent powers of this Court under Section 482 Cr.P.C. for quashing of the order dated 12.2.1998 by which the Magistrate has allowed the examination of prosecution witnesses under Section 311 Cr.P.C whereas he had already closed the evidence of the prosecution.

The grievance of the petitioner, as narrated in the petition, is that on a statement made by Shiv Ram, FIR No. 494, dated 9.10.1989 was registered against him and after investigation, the police submitted its report under Section 173 Cr.P.C. before the Judicial Magistrate Ist Class, Karnal on 3.2.1990. Charge sheet under Sections 323/324/325 read with Section 34 IPC was framed on 16.8.1990 against him and his coaccused. The petitioner alongwith his coaccused did not plead guilty and claimed trial and prosecution witnesses were summoned for 23.7.1991. The petitioner and his coaccused continued to attend the Court on every adjourned date. However, the evidence of the prosecution was never produced despite availing repeated opportunities upto 30.4.1997 when the evidence of the prosecution was closed by order. Thereafter, on 17.8.1997, Sumer Chand s/o Shiv Ram filed an application under Section 311 Cr.P.C. for producing the witness of the prosecution by way of additional evidence. The petitioner objected to the application by filing reply on the ground that Section 311 Cr.P.C. was not applicable to the facts of the case and the prosecution witnesses deliberately absented themselves to appear before the Court to harass the petitioner and his coaccused and at that stage prosecution witness could not be examined and to reopen the case on false and frivolous grounds. The Magistrate, however, passed the impugned order on 12.2.1996 allowing the application under Section 311 Cr.P.C. for additional evidence which is now sought to be quashed by way of the present petition.

On notice of the petition, written statement has been filed on behalf of the State of Haryana wherein objection is raised that this petition is not maintainable and revision petition could have been filed besides that there is no illegality in the order under challenge. However, the factual position has not been disputed regarding pendency of the case for sufficient long time and nonproduction of evidence by the prosecution.

I have heard counsel for the parties at length.

The power conferred on a Magistrate for summoning material witness or examine person present under Section 311 Cr.P.C. is described 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 reexamine any person already examined; and the court 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."

A bare reading of the above Section would show that it is in two parts. In the first part it gives discretion to the criminal court and enables it at any stage of an enquiry, trial or proceeding under the Code to summon any one as a witness or to examine any person present in court or to recall and re examine any person whose evidence has already been recorded. However, the second part is a rider in nature of mandate to the Magistrate to exercise the aforesaid power of summoning, examining or recalling etc. only if the evidence of a witness so called is essential to the just decision of the case. The Supreme Court in Mohan Lal Shamji Soni v. Union of India and another, 1991(3) RCR(Crl.) 182 : AIR 1991 Supreme Court 1346 , has given the scope of exercise of powers under Section 311 Cr.P.C. by a Magistrate as under :

"However, the very width requires a corresponding caution that the discretionary power 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 for any discretion but it binds and compels the Court to take any of the aforementioned two steps if the fresh evidence to be obtained is essential to the just decision of the case."

Impliedly, the Magistrate is required to use his discretion under this section judiciously and not arbitrarily. The settled principle of judicious use of exercise of power under Section 311 Cr.P.C is that the same is not to be exercised in order to fill up lacuna in the case of prosecution to the disadvantage and prejudice of the accused persons. In this aspect of the case, Supreme Court has observed in the case of Mohd. Iqbal Ahmad v. State of Andhra Pradesh, AIR 1979 Supreme Court 677, as under :

"The prosecution had been afforded a full and complete opportunity at the trial stage to produce whatever material it liked and it had chosen to examine two witnesses but for reasons best known to it did not produce the note which formed the subject matter of the Resolution of the Sanctioning authority Exh. P16. It is well settled that in a criminal case this Court or for that matter any court should not ordinarily direct fresh evidence to fill up a lacuna deliberately left by the prosecution. The liberty of the subject was put in jeopardy and it cannot be allowed to put in jeopardy again at the instance of the prosecution which failed to avail of the opportunity afforded to it."

The petitioner has referred to the interim orders passed during the pendency of the case before the trial Court against him and his coaccused from 14.12.1993 onwards and on each and every date upto 30.4.1997, the petitioner and his coaccused never failed to attend the Court. However, the prosecution did not produce a single witness from the date of presentation of challan before the Magistrate on 3.2.1990 till the evidence of the prosecution was closed by order on 30.4.1997. Nonproduction of witness by the prosecution amounted to total harassment of the petitioner and his coaccused and delay in not completion of trial, in such circumstances, was on the part of the prosecution and the petitioner had no role in the same. First Information Report in this case was recorded on the statement of Shiv Ram son of Chakam, caste Jat, resident of Hathira, on 9.10.1989. However, application under Section 311 Cr.P.C. was neither moved by the prosecution through the Public Prosecutor nor by complainantShiv Ram. Rather, the same was moved by one Sumer Chand who had even no locus standi in this case and the application, as such, was not maintainable. The evidence of the prosecution was closed on 30.4.1997 and the case was adjourned for 24.5.1997 for statement of accused under Section 313 Cr.P.C. if any. Strange enough, application under Section 311 Cr.P.C. was entertained on 17.8.1997 thereby reopening the case of the prosecution and fresh trial of the petitioner and his coaccused after they had already gone through the protracted trial for the about 7 years by attending each and every adjourned date. The Magistrate failed to apply his mind to the delay already occurred in completion of the trial on account of failure of the prosecution to produce any evidence against the petitioner and his coaccused. Speedy trial is the right of an accused person under Article 21 of the Constitution of India. In Mahendra Lal Das v. State of Bihar, 2001(4) RCR(Criminal) 589 , the Supreme Court of India observed as under :

"This Court in Abdul Rehman Antulay and others v. R.S. Nayak and another, 1992(1) SCC 225, while interpreting the scope of Article 21 of the Constitution held that every citizen has a right of speedy trial of the case pending against him. The speedy trial was considered also in public interest as it serves the social interest also. It is in the interest of all concerned that guilt or innocence of the accused is determined as quickly as possible in the circumstances. The right to speedy trial encompasses all the stages, namely, stage of investigation, enquiry, trial, appeal, revision and retrial. While determining the alleged delay, the court has to decide each case on its fact having regard to all attending circumstances including nature of offence, number of accused and witnesses, the workload of the court concerned, prevailing local conditions, etc. Every delay may not be taken as causing prejudice to the accused but the alleged delay has to be considered in the totality of the circumstances and the general conspectus of the case. Inordinate long delay can be taken as a preventive proof of prejudice."

Undoubtedly, trial remained pending for about 7 years during the course of which opportunities, times without number, were given to the prosecution to exhaust all the evidence on its behalf which gives impression that it was nothing but a dilatory tactics of the prosecution which managed the trial to remain pending for such a long period. Any further delay would have, instead of serving the cause of justice as provided under Section 311 Cr.P.C., resulted in miscarriage of justice by denying a speedy trial to the accused.

As observed above, the exercise of jurisdiction under Section 311 Cr.P.C. for examining the witnesses can be in the interest of justice only. The provisions under Section 311 Cr.P.C. should not be invoked for filling up lacuna in the prosecution case. In the instant case, permission by the Magistrate, by the impugned order, was in a way to review his own earlier order of closing of prosecution evidence on 30.4.1997 and permission to examine all the prosecution witnesses afresh would by itself be against his earlier order. Admittedly, the criminal Court has no power to review its own orders. The permission by the trial court by the impugned order, in the circumstances of the case and the impugned order, dated 12.2.1998, thus, can not be sustained in law. It is hereby quashed and the petition is allowed.

Speedy trial is the right of an accused person available to him under Article 21 of the Constitution of India, in view of the law laid down by Supreme Court in Mahendra Lal Das''s case (supra). First Information Report in this case was registered way back on 9.10.1989. Charges against the petitioner and his coaccused were framed on 16.8.1990 and, admittedly till 30.4.1997, not a single witness was produced by the prosecution to depose against the petitioner and his coaccused when the evidence of the prosecution was closed by order. Subsequent order dated 12.2.1996 allowing the production of prosecution witnesses under Section 311 Cr.P.C. has since been quashed. The net result would be that till today, there is no incriminating material evidence against the petitioner and his coaccused and it will be travesty of law if again the matter is sent back to the trial Court to proceed further in accordance with law. In view of uncalled for and undue delay in disposal of the trial against the petitioner and his coaccused, it is a fit case where the proceedings pending against the petitioner and his coaccused should be quashed. It is ordered accordingly.

JUDGMENT accordingly.