Jarnail Singh @ Jaila vs The State of Punjab

S.S. Grewal, J.—This petition as well at Criminal Misc No. 10597-M of 1989 (Gurbachan Singh alias Kale v. State of Punjab), Criminal Misc. No. 103-M of 1990 (Gurnam Singh v. State of Punjab), Criminal Misc. No. 101-M of 1990 (Ajmer Singh v. State of Punjab) and Criminal Misc. No. 606-M of 1990 (Balbir Singh v. State of Punjab) are directed against the order of Additional Sessions Judge, Barnala passed in various criminal appeals pending before him, against the order of conviction and sentence recorded by the trial Court for recovery of contraband opium. In those appeals he had allowed the applications moved on behalf of the prosecution u/s 311 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the new Code) and had permitted resummoning of the police officials whose affidavits had been tendered in the trial Court to prove the link evidence in respect of sending the sample of opium recovered in each case to the office of the Chemical Examiner. The Additional Sessions Judge, Barnala had also ordered that it shall be open to the prosecution to pat evidence the fresh and properly attested/verified sworn affidavits of these witnesses by way of additional evidence.

Since common questions of law are involved in all these petitions, these shall be disposed of by one judgment.

Learned counsel for the parties were heard.

Learned counsel for the petitioners submitted that since Section 311 of the New Code finds its place in Chapter XXIV which deals with general provisions applicable to inquiries and trials, the learned Additional Sessions Judge. Barnala, while hearing the appeals could not pass the impugned orders for resummoning recalling or re-examining the police officials whose affidavits had already been tendered in evidence in the trial Court. It was further submitted that the appellate Court could only act u/s 391 of the New Code and could only direct further evidence to be taken, if, such additional evidence was necessary end that too after recording its reasons. It was also submitted that the appellate Court was not entitled to recall, or, resummon the prosecution witnesses whose affidavits had already been tendered in evidence before the trial Court. Nor could it direct such witnesses to produce fresh affidavits

The argument is devoid of any merit. It is true that u/s 311 of the New Code if the appellate Court thinks that additional evidence is necessary it shall after recording its reasons, may, take such evidence itself, or, direct such additional evidence to be taken by the trial Court. However, power to summon material witnesses or recall or re-examine any person already examined, as contemplated u/s 311 of the New Code, can be exercised by the trial Court a well as by the appellate Court. Wording of Section 311 of the New Code indicates that such power could be exercised by any Court at any stage of any enquiry, trial or other proceedings under this Code. This for all intents and purposes would also include hearing of the appeal by the Court of Session. Mere fact that Section 311 of the New Code is incorporated under Chapter XXIV which deals with general provisions applicable to inquiries and trials would not be sufficient to hold that such power can only be exercised at the stage of any enquiry, or, trial and not at the appellate stage.

On this point, I find support from the authority of the apex Court in Jamatraj Kewalji Govani Vs. The State of Maharashtra, , wherein dealing with Section 540 of the Old Code, it was observed as under :-

"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."

It was further observed :-

"There is however, the other aspect, namely of the power of the Court which is to be exercised to reach a just decision. This power is exerciseable at any time and the Code of Criminal Procedure clearly so states."

I find further support in my view from the authority of apex Court in Raghunandan Vs. State of U.P., , wherein dealing with omission on the part of the prosecution, defence, or, even by the trial Court to put relevant questions to the medical expert concerning the condition of the intestines of the deceased at a particular point of time, it was observed that even if the prosecution, or, the defence counsel omits to put to the doctors examined at the trial, important questions emerging from a reading of the post-mortem report considered in the context of the alleged time of the murder and the trial Court also failed to consider their importance, the High Court itself could and should have taken further export medical evidence under Sections 549 and 428 Cr. P.C. on that question.

It was next submitted on behalf of the petitioners that the affidavit filed before the trial Court were defective and the prosecution cannot be permitted to fill in the lacunae, or, the gaps in the prosecution evidence by resummoning or recalling or re-examining those police officials, in order to prove the link evidence, so as to establish that the sample of opium allegedly recovered by the Investigating agency reached the office of the Chemical Examiner with seals intact, particularly, when this defect was pointed out before the trial Court itself, in appeals relating to all the aforesaid cases except in case Balbir Singh v. State in respect of which Criminal Misc. No. 606-M of 1990 has been filed. In the latter case the validity of sworn affidavit of constable Darshan Singh was not at all assailed before the trial Magistrate.

Reliance on behalf of the petitioners was, however, placed on the authority of the apex Court in State of Rajasthan Vs. Daulat Ram, , where the samples of opium changed several hands before reaching the public analyst and yet none of those in whose custody the samples remained were examined by the prosecution to prove that while in their custody the seals on the samples were not tampered with, the inevitable effect of the omission was that the prosecution failed to rule out the possibility of the samples being changed or tampered with during the period in question a fact which had to be proved affirmatively by the prosecution. Consequently, the accused could not be convicted u/s 9-A. In such a case, the prosecution could not be allowed to fill up the gaps in the prosecution, story at the appellate of revisional stage.

The facts of aforesaid authority were entirely different as the prosecution had not examined the persons, who had taken the sample from the time of its seizure till it was examined by the Public Analyst. At the fag end of the case, application was made by the prosecutor for summoning those witnesses u/s 540 of the Old Code, which was dismissed. In the High Court, the stand taken by the State counsel was vacillating. At one stage, he filed an application for examining additional evidence and withdrew it. The High Court upheld the acquittal. In the peculiar circumstances of the said case, it was observed by their lordships of Supreme Court as under :-

"It is obvious that the onus is on the prosecution to prove the entire case at the trial and the prosecution could not be allowed to fill up the gaps or lacunae left at the trial, at the appellate or revisional stage."

While dealing with the scope of Section 311 of the New Code, both authorities of the apex Court in Jamatraj Kewalji Govani''s case (supra) and in case re State of Rajasthan v. Daulat Ram (Supra) were considered by Division Bench of this Court in Sukhdev Singh v. State of Punjab 1982 (2) C.L.R. 318, and it was observed as under:-

"The very fact that the section is couched in wide terms requires a Judge to exercise caution in using his power u/s 311 of the Code. It is, therefore, imperative that before using his powers the Judge has to take into account the circumstances of the case of examining witnesses after the entire case is closed and that should not cause injustice to the accused. It should not operate to demolish the case setup by the accused if he has done so in his defence. We do not think that the mere fact that evidence is permitted to be taken after the entire prosecution case is over is in itself in excess of the powers of Court. No hard and fast rules can be prescribed as to when and at what stage this discretion should be exercised. The anxiety for justice is paramount and should be kept in view. The Court should be unmindful of the fact of the use of the discretion in favour or against any party. The principle that such evidence should not demolish the case set up by the accused in his defence, if he has done so, should be present to the mind of the Judge at the time when he takes a decision."

The Division Bench authority of this Court in Gangal Singh v. State of Haryana 1977 C.L.R. 169, was also noticed in Sukhdev Singh''s ease (supra). The observations of the Bench in Gangal Singh''s case are :-

"It is not disputed that the affidavits of Banwari Lal and Ajit Singh, which were filed at the trial by the prosecution, were not objected to being inadmissible for want of proper attestation before the learned Magistrate. It was only at the appellate stage an objection was raised to the attestation at the argument stage and the learned Judge, keeping in view the facts and circumstances of the case, allowed the prosecution to place on record duly attested affidavits of constables Banwari Lal and Ajit Singh, referred to above. We, therefore, do not find any ground to interfere with the order of the learned Sessions Judge."

It was further observed in the afore-cited authority in Sukhdev Singh''s case (supra) that the view of the Division Bench in Gangal Singh''s case was in consonance with the decision in Jamatraj Kawalji Govani''s case (Supra) and that the authority in Daulat Ram''s case (Supra) does not in any way run counter to the judgments in line with Jamatraj Kawalji Govani''s case.

The next question which arises for determination is as to whether the appellate Court had legally and properly exercised its discretion while allowing the application moved by the prosecution u/s 311 of the New Code. The prosecution u/s 311 of the New Code had pleaded that the sworn affidavit of the police officials tendered in evidence before the trial Magistrate were defective and were likely to prove fatal to the prosecution case in view of the ratio of the judgment of Court in Harjeet Singh v. State of Haryana 1988 (1) C.L.R. 81.

The consistent view of the Court is to the effect that in case the affidavits tendered by the police officials to prove the link evidence that after recovery of contraband article the sample thereof has reached the office of the Chemical Examiner with seals intact are defective concerning attestation or verification, the accused in such a case is entitled to acquittal. Reference on this point in Sukhdev Singh''s case (Supra) was also made to Single Bench authority of this Court in case Atma Singh v. State of Punjab 1981 C. L. R. 612, and it was observed that the prosecution gave a weighty reason in support of this application by relying on the judgment reported in Atma Singh''s case (supra) impressing upon the prosecution to produce evidence from the office of the Chemical Examiner that the sample was received there with seals intact and that the seals remained in that very condition till the sample was analysed by the Chemical Examiner. It was further held that the discretion in the said case has been properly exercised by the trial Court.

The Division Bench of this Court in Gangal Singh''s case (supra) had upheld the order of learned Sessions Judge, who had allowed the prosecution to place on record duly attested affidavits of concerned police officials concerning which no objection was raised either on the ground of admissibility or for proper attestation before the trial Magistrate.

Since the objections concerning defect in affidavits of police officials to prove the link evidence had been pointed out before the trial Magistrate itself in all the aforesaid cases except in case relating to Criminal Misc. No. 606-M of 1990 (Balbir Singh v. State) the reasons given by the prosecution before the appellate Court that such defective affidavits were likely to prove fatal to the prosecution case, in my view, would not constitute valid or sufficient ground for the appellate Court to allow the application moved before the said Court on behalf of the prosecution u/s 311 of the New Code to rectify such defect either by filing fresh affidavits of such police officials, or, by resummoning or recalling and re-examining such witnesses.

however, no such defect in the affidavits of the formal witnesses filed by the prosecution was pointed out by the defence at any stage during the trial in Balbir Singh''s case. Since the prosecution came to know about this defect at the appellate stage the appellate Court was justified in exercising its discretion u/s 311 of the New Code and permitting the prosecution either to recall or re-summon such witnesses already examined or to file their fresh affidavits.

For the foregoing reasons, Criminal Misc. No. 9932-M of 1989 (Jarnail Singh alias Jaila v. State of Punjab) Criminal Misc. No. 10597 M of 1989 (Gurbachan Singh alias Kala v. State of Punjab) Criminal Misc. No. 101-M of 1990 (Ajmer Singh v. State of Punjab) and Criminal Misc. No. 103-M of 1990 (Gurnom Singh v. State of Punjab) are allowed and the impugned orders passed by the appellate Court relating to these petitions are set aside. However, Criminal Misc. No. 606-M of 1990 re : Balbir Singh v. State of Punjab, is without any merit and this petition is accordingly dismissed. The Additional Sessions Judge, Barnala is directed to dispose of the appeals pending in all these cases before him expeditiously.