Narendra Sharma and Others vs State of Rajasthan

R.S. Chauhan, J.—The petitioners have challenged the order dated 13.6.2005 passed by Special Judge (Women Atrocities and Dowry Cases), Jaipur, whereby he has rejected an application filed by the petitioners u/s 311, Cr. P.C. for summoning two Investigating Officers as Court witnesses.

The brief facts of the case are that a Mriag FIR was registered and an inquiry was started. Iniritally, during the course of inquiry, the complainant did not level any substantial allegations against the accused petitioners. However, two days later, Sohan Lal, the brother of the deceased submitted a report in the Police Station wherien he alleged the offences under Sections 498A, 306 and 304-B, IPC against the petitioner. Four different Investigation Officers (henceforth to be referred to as the I.O., for short) of the rank of Addl. SP/Deputy S.P., carried out the investigation. Subsequently, the police submitted a charge sheet for offences under Sections 498A and 306, IPC. But, subsequently, the Court framed a charge for offence u/s 304B, IPC against the petitioners.

Interestingly, the prosecution had proposed to examine 42 witnesses, but after examining only 11 witnesses, it dropped remaining witnesses including the four 1 .Os. Thus, the prosecution in its wisdom refused to examine any of the I.Os. Since, the witnesses were confronted and contradicted with the statement made by them to the police u/s 161, Cr. P.C., it was essential that the I.Os. be examined as witnesses. But, as stated above, the prosecution was not willing to call the I.Os. in the witness box. In these circumstances, the accused petitioners moved an application u/s 311, Cr.P.C. requesting the Court to summon two I.Os., namely Vidhyadhar Singh Choudhary and Dungar Chand Dangi, as Court witnesses. However, vide order dated 13.6.2005 the said application was dismissed. Hence, this petition before us.

We have heard the learned Counsel for the petitioners and the learned P.P. We have also examined the impugned order.

Man is a political animal. Why man created a political over-structure, this question has taxed the imagination of great political Philosophers. For, the social contract theorist, like Hobbes, Locke and Rousseau, man entered into a social contract in orderto protect his "life and liberty". Left to himself, man could protect neither his life, nor his liberty. Therefore, while accepting some restrictions imposed by the State, Man secured the protection of his life and liberty.

The preamble of the Constitution of India promises Justice--social, economic and political. Political justice necessarily implies the protection of one''s civil and fundamental rights. The most essential fundamental right is of "life and personal liberty". For, it is the raison d''etre (reason of being) of the State itself. Without right to life and liberty, democracy is meaningless. Thus, each person has the right to defend his life and his personal liberty.

The Code of Criminal Procedure recognizes the need to safeguard the life and liberty of the accused. In fact, at every turn and juncture it protects these two elements. Criminal judicial system has been created to do justice to the accused, to the State (representing the interest of the victim), and to the society at large. Undoubtedly, the primary function of the Court is to do justice. In order to ensure justice, vast powers have been bestowed on the Court. One such power is contained in Section 311 of the Code. Section 311, Cr. P.C. reads as follows:

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.

The section is in two parts: the firit part uses the word "may". It thus, bestows a discretionary power on the Court to enable it to summon, to examine or to recall and re-examine any person at any stage of an enquiry, trial or proceedings. The second part uses the word "shall". It is, thus, mandatory in nature. Once the Court is convinced that the new evidence appears to be essential for the j ust decision of the case, it is bound to take any of the aforementioned steps [Ref. to Zahira Habibulla H. Sheikh and Another Vs. State of Gujarat and Others, ].

In the above noted case, Their Lordships of the Apex Court held as under:

Object of the section is to enable the Court to arrive at the truth irrespective of the fact that the prosecution or the defence has failed to produce some evidence which is necessary for a just and proper disposal of the case. The power is exercised and the evidence is examined neither to help the prosecution nor the defence, if the Court feels that there is necessity to act in terms of Section 311 but only to subserve the cause of justice and public interest. It is done with an object of getting the evidence in aid of a just decision and to uphold the truth.

In a similar vain, in the case of Balwant Singh v. State of Rajasthan 1986 Cr. L.J. (Raj.) 1374, this Court held as under:

The object underlying Section 311 of the Code is that there may not be failure of justice on account of mistake of either party in bringing the valuable evidence on record or leaving ambiguity in the statements of the witnesses examined from either side.

It further held that "the Courts are not to be guided by the fact that the exercise of power u/s 311 of the Code would be helpful to the prosecution or to the accused or detrimental to the interest of either and has rather to see whether a step under this section is necessary to arrive at a just decision of the case for which the Court are meant". Thus, the guiding principle for the use of the power to examine "if the new evidence appears to be essential to the just decision of the case". (Ref. to Ram Jeet and Others Vs. The State, )

Since the power can be used "at any stage of inquiry, trial or proceeding under the Code", naturally the power is wide. But because it is limitless, it has to be used cautiously and with circumspection. But to use it cautiously does not mean "rarely". Of course it is difficult to enumerate the conditions when such a vast power is to be exercised. Firstly, because the permutation and combinations of circumstances are too many to be envisioned. Secondly, because judicial discretion cannot be straight-jacketed. To tie down discretion is to obliterate it.

However, while exercising discretion, the Criminal Court should first understand its role in a criminal trial. In the case of Zahira Habibulla H. Sheikh (supra), Their Lordships of the Hon''ble Supreme Court have proclaimed that:

If a Criminal Court is to be an effective instrument in dispensing justice, the Presiding Judge must cease to be a spectator and a mere recording machine by becoming a participant in the trial evincing intelligence, active interest and elicit all relevant materials necessary for reaching the correct conclusion, to find out the truth, and administer justice with fairness and impartiality both to the parties and to the community it serves. Courts administering criminal justice cannot turn a blind eye to vexatious or oppressive conduct that has occurred in relation to proceedings.

It further held :

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 that the prosecuting agency or the Prosecutor is not acting in the requisite manner. The Court cannot afford to be wishfully or pretend to be blissfully ignorant or oblivious to such serious pitfalls or dereliction of duty on the part of the prosecuting agency.

It further stated :

A criminal trial is a judicial examination of the issues in the case and its purpose is to arrive at a judgment on an issue as to a fact or relevant facts which may lead to the discovery of the fact issue and obtain proof of such facts at which the prosecution and the accused have arrived by their pleadings; the controlling question being the guilt or innoncence of the accused. Since the object is to meet out justice and to convict the guilty and protect the innoncent, the trial should be a search for the truth and not about over technicalities, and must be conducted under such rules as will protect the innoncent, and punish the guilty. The proof of charge which has to be beyond reasonable doubt must depend upon judicial evaluation of the totality of the evidence, oral and circumstantial, and not by an isolated scrutiny.

Failure to accord fair hearing either to the accused or the prosecution violates even minimum standards of due process of law. It is inherent in the concept of due process oflaw, that condemnation should be rendered only after the trial in which the hearing is a real one, not sham or a mere farce and pretence. Since the fair hearing requires an opportunity to preserve the process, it may be vitiated and violated by an overhasty, stage-managed, tailored and partisan trial.

The fair trial for a criminal offence consists not only in technical observance of the frame and forms of law, but also in recognition and just application of its principles in substance, to find out the truth and prevent miscarriage of justice.

Their Lordships have further opined that "the failure to hear material witness is certainly denial of fair trial.

Undoubtedly, an Investigating Officer is a material witness in a criminal trial. In his examination-in-chief he sheds light on the steps of investigation. He proves many of the documents. Through his cross-examination, the accused gets a fair chance to demolish the prosecution case. Hence, his testimony is "essential to the just decision of the case."

In the instance case, the learned Trial Court has rejected the application u/s 311 Cr. P.C. ostensibly on the ground that the non-examination of the Investigation Officer is not fatal to the prosecution. Sueh reasoning overlooks the fact that non-production of Investigating Officer leads to an adverse inference to be drawn u/s 114(g) of the Evidence Act. Such a presumption would certainly weaken the prosecution case. Furthermore, it is the duty of the prosecution to prove its case beyond a reasonable doubt. By permitting the prosecution to withhold the Investigating Officer from the witness box, the prosecution would not be able to prove its case beyond the shadow of doubt. An unscrupulous prosecution would be permitted to pay into the hands of the accused. Moreover, if the prosecution is permitted to withhold the Investigating Officer from the Court, then the prosecution can hide crucial facts from the Court. The Court would not only be misled, it would also be left in the dark. The prosecution cannot be left with such dangerous tools so as to derail justice. Further, since the right to defend one''s life and liberty is a fundamental right, the accused cannot be denied the right to cross-examine the material witness such as the Investigating Officer. Thus, it is essential to examine the Investigating Officer in order to do complete justice to the accused, the State and the society.

In the present case the learned Trial Court has failed to ensure a fair trial and to do justice to the petitioners.

We, therefore, allow this petition and quash and set aside the impugned order dated 13.6.2005 and direct the Special Judge (Women Atrocities and Dowry Cases), Jaipir, to summon the two Investigating Officers, namely Vidhyadhar Singh Choudhary and Dungar Chand Dangi as Court witnesses and to examine them before proceeding any further with the trial.

With the aforementioned observations, the Criminal Misc. Petition stands allowed.