Rakesh Kumar vs State of Punjab and Others

Hari Pal Verma, J.

CRM-30221-2015

This is an application for placing on record copies of statements of Mohan Lal, Ex-Sarpanch and ASI Varinder Singh as Annexures R2/3 and R2/4 respectively.

The documents are taken on record.

CRM stands disposed of.

Main Case

Petitioner Rakesh Kumar son of Kuldip Chand, resident of House No. 2035, Mohalla Sarai Nakodar, Tehsil Nakodar, District Jalandhar has filed the present petition challenging the order dated 6.4.2015 passed by learned Additional Sessions Judge, Jalandhar whereby the application filed by the complainant through Additional Public Prosecutor for the State dated 16.12.2014 under Section 311 Cr.P.C., has been allowed. The said application was filed in case FIR No. 63 dated 29.7.2012 under Sections 406 and 498-A IPC (Section 313 IPC was added later on), registered at Police Station Lambra, District Jalandhar.

Vide order dated 6.4.2015, learned Additional Sessions Judge has allowed the application under Section 311 Cr.P.C. for examining Mohan Lal, Ex-Sarpanch as a witness. It has been averred in the application that examination of witness Mohan Lal is necessary and important for the prosecution case because it is in the presence of Mohan Lal, the accused has admitted the fact that they have conducted abortion of the complainant.

Learned Additional Sessions Judge while allowing the application under Section 311 Cr.P.C. on 6.4.2015 has passed the following order:

"7. Perusal of the record reveals that FIR of this case was registered against the accused at the instance of Paloma Kumari wife of Rakesh Kumar. Charge was framed on 30.11.2013. Prosecution has examined eight witnesses and has now moved the instant application dated 30.5.2014. In the additional evidence, prosecution intends examine Mohan Lal, Ex. Sarpanch son of Rulia Ram, resident of VPO Lambra, Tehsil and District, Jalandhar. Complainant should not suffer due to lapse on the part of investigating officer by not examining PW Mohan Lal before whom accused allegedly admitted the fact that they have conducted abortion of complainant, which is necessary for the just decision of the case. No prejudice shall be caused to the accused, if the application is allowed. Therefore, in the interest of justice, application under reference is allowed."

Learned counsel for the petitioner has contended that filing of application under Section 311 Cr.P.C. seeking examination of Mohan Lal, Ex-Sarpanch is nothing but an attempt to fill up the lacuna. He further submitted that in the list of witnesses, so furnished by the prosecution, Mohan Lal, Ex-Sarpanch was never named in the list. His name has not been referred even in the report filed under Section 173 Cr.P.C. Learned counsel for the petitioner has referred to Rajaram Prasad Yadav Vs. State of Bihar and Another, (2013) 8 AD 583 : AIR 2013 SC 3081 : (2013) CriLJ 3777 : (2013) 3 JCC 2179 : (2013) 11 JT 118 : (2013) 3 RCR(Criminal) 726 : (2013) 8 SCALE 316 : (2013) 14 SCC 461 : (2013) AIRSCW 4179 : (2013) 4 Supreme 621 to state that the exercise of said power cannot be dubbed as filling in a lacuna in the prosecution case unless the facts and circumstances of the case make it apparent that the exercise of power by the Court would result in causing serious prejudice to the accused, resulting in miscarriage of justice.

I have heard learned counsel for the parties and have gone through the statement of Parshotam Kumar (PW 2).

It will be relevant to reproduce Section 311 Cr.P.C. which 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."

Hon''ble Supreme Court in Rajaram Prasad Yadav''s case (supra) has elaborated the powers of the Court while considering the application under Section 311Cr.P.C. The Apex Court has held that the power vested under the provisions of Section 311 Cr.P.C. is made available to any Court at any stage in any enquiry or trial or procedure initiated in Court. The Apex Court observed as under:

"14. A conspicuous reading of Section 311 Cr.P.C. would show that widest of the powers have been invested with the Courts when it comes to the question of summoning a witness or to recall or reexamine any witness already examined. A reading of the provision shows that the expression "any" has been used as a pre-fix to "court", "inquiry", "trial", "other proceeding", "person as a witness", "person in attendance though not summoned as a witness", and "person already examined". By using the said expression "any" as a pre-fix to the various expressions mentioned above, it is ultimately stated that all that was required to be satisfied by the Court was only in relation to such evidence that appears to the Court to be essential for the just decision of the case. Section 138 of the Evidence Act, prescribed the order of examination of a witness in the Court. Order of re-examination is also prescribed calling for such a witness so desired for such re-examination. Therefore, a reading of Section 311 Cr.P.C. and Section 138 Evidence Act, insofar as it comes to the question of a criminal trial, the order of re-examination at the desire of any person under Section 138, will have to necessarily be in consonance with the prescription contained in Section 311 Cr.P.C. It is, therefore, imperative that the invocation of Section 311 Cr.P.C. and its application in a particular case can be ordered by the Court, only by bearing in mind the object and purport of the said provision, namely, for achieving a just decision of the case as noted by us earlier. The power vested under the said provision is made available to any Court at any stage in any inquiry or trial or other proceeding initiated under the Code for the purpose of summoning any person as a witness or for examining any person in attendance, even though not summoned as witness or to recall or re-examine any person already examined. Insofar as recalling and re-examination of any person already examined, the Court must necessarily consider and ensure that such recall and re-examination of any person, appears in the view of the Court to be essential for the just decision of the case. Therefore, the paramount requirement is just decision and for that purpose the essentiality of a person to be recalled and reexamined has to be ascertained. To put it differently, while such a widest power is invested with the Court, it is needless to state that exercise of such power should be made judicially and also with extreme care and caution.

x x x x

Again in an unreported decision rendered by this Court dated 08.05.2013 in Natasha Singh vs. CBI (State), Criminal Appeal No. 709 of 2013, where one of us was a party, various other decisions of this Court were referred to and the position has been stated as under in paragraphs 14 and 15:

"14. The scope and object of the provision is to enable the Court to determine the truth and to render a just decision after discovering all relevant facts and obtaining proper proof of such facts, to arrive at a just decision of the case. Power must be exercised judiciously and not capriciously or arbitrarily, as any improper or capricious exercise of such power may lead to undesirable results. An application under Section 311 Cr.P.C. 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 Cr.P.C. 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 any way. There is thus no escape if the fresh evidence to be obtained is essential to the just decision of the case. The determinative factor should, therefore, be whether the summoning/recalling of the said witness is in fact, essential to the just decision of the case.

Fair trial is the main object of criminal procedure, and it is the duty of the court to ensure that such fairness is not hampered or threatened in any manner. Fair trial entails the interests of the accused, the victim and of the society, and therefore, fair trial includes the grant of fair and proper opportunities to the person concerned, and the same must be ensured as this is a constitutional, as well as a human right. Thus, under no circumstances can a person''s right to fair trial be jeopardized. Adducing evidence in support of the defence is a valuable right. Denial of such right would amount to the denial of a fair trial. Thus, it is essential that the rules of procedure that have been designed to ensure justice are scrupulously followed, and the court must be zealous in ensuring that there is no breach of the same. (Vide Talab Haji Hussain Vs. Madhukar Purshottam Mondkar and Another, AIR 1958 SC 376 : (1958) CriLJ 701 : (1958) 1 SCR 1226 ; Zahira Habibulla H. Sheikh and Another Vs. State of Gujarat and Others, AIR 2004 SC 346 : (2004) CriLJ 2050 : (2004) 1 JT 94 Supp : (2004) 4 SCALE 375 : (2004) 4 SCC 158 : (2004) 1 SCR 1050 : (2004) 2 UJ 1041 : (2004) AIRSCW 2325 : (2004) 3 Supreme 210 ; Zahira Habibullah Sheikh and Another Vs. State of Gujarat and Others, AIR 2006 SC 1367 : (2006) CriLJ 1694 : (2006) 3 JT 399 : (2006) 3 SCALE 104 : (2006) 3 SCC 374 : (2006) AIRSCW 1340 : (2006) 2 Supreme 598 ; Mrs. Kalyani Baskar Vs. Mrs. M.S. Sampornam, (2007) 135 CompCas 197 : (2007) 2 CTC 364 : (2007) 1 JT 77 : (2006) 13 SCALE 459 : (2007) 2 SCC 258 : (2007) 1 UJ 1 ; Vijay Kumar Vs. State of U.P. and Another, (2012) CriLJ 305 : (2011) 3 Crimes 147 : (2011) 6 CTC 445 : (2011) 14 JT 89 : (2011) 4 RCR(Criminal) 208 : (2011) 8 SCALE 221 : (2011) 8 SCC 136 : (2011) 11 SCR 893 ; and Sudevanand Vs. State, (2012) CriLJ 1320 : (2012) 1 Crimes 137 : (2012) 2 JT 40 : (2012) 1 RCR(Criminal) 662 : (2012) 1 SCALE 462 : (2012) 3 SCC 387 : (2012) AIRSCW 953 : (2012) 1 Supreme 329 .)"

From a conspectus consideration of the above decisions, while dealing with an application under Section 311 Cr.P.C. read along with Section 138 of the Evidence Act, we feel the following principles will have to be borne in mind by the Courts:

a) Whether the Court is right in thinking that the new evidence is needed by it? Whether the evidence sought to be led in under Section 311 is noted by the Court for a just decision of a case?

b) The exercise of the widest discretionary power under Section 311 Cr.P.C. should ensure that the judgment should not be rendered on inchoate, inconclusive speculative presentation of facts, as thereby the ends of justice would be defeated.

c) If evidence of any witness appears to the Court to be essential to the just decision of the case, it is the power of the Court to summon and examine or recall and re-examine any such person.

d) The exercise of power under Section 311 Cr.P.C. should be resorted to only with the object of finding out the truth or obtaining proper proof for such facts, which will lead to a just and correct decision of the case.

e) The exercise of the said power cannot be dubbed as filling in a lacuna in a prosecution case, unless the facts and circumstances of the case make it apparent that the exercise of power by the Court would result in causing serious prejudice to the accused, resulting in miscarriage of justice.

f) The wide discretionary power should be exercised judiciously and not arbitrarily.

g) The Court must satisfy itself that it was in every respect essential to examine such a witness or to recall him for further examination in order to arrive at a just decision of the case.

h) The object of Section 311 Cr.P.C. simultaneously imposes a duty on the Court to determine the truth and to render a just decision.

i) The Court arrives at the conclusion that additional evidence is necessary, not because it would be impossible to pronounce the judgment without it, but because there would be a failure of justice without such evidence being considered.

j) Exigency of the situation, fair play and good sense should be the safe guard, while exercising the discretion. The Court should bear in mind that no party in a trial can be foreclosed from correcting errors and that if proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the Court should be magnanimous in permitting such mistakes to be rectified.

k) The Court should be conscious of the position that after all the trial is basically for the prisoners and the Court should afford an opportunity to them in the fairest manner possible. In that parity of reasoning, it would be safe to err in favour of the accused getting an opportunity rather than protecting the prosecution against possible prejudice at the cost of the accused. The Court should bear in mind that improper or capricious exercise of such a discretionary power, may lead to undesirable results.

l) The additional evidence must not be received as a disguise or to change the nature of the case against any of the party.

m) The power must be exercised keeping in mind that the evidence that is likely to be tendered, would be germane to the issue involved and also ensure that an opportunity of rebuttal is given to the other party.

n) The power under Section 311 Cr.P.C. 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 care, caution and circumspection. The Court should bear in mind that fair trial entails the interest of the accused, the victim and the society and, therefore, the grant of fair and proper opportunities to the persons concerned, must be ensured being a constitutional goal, as well as a human right."

Vide CRM No. 30221 of 2015 in this case, learned counsel for the petitioner has placed on record statement of Mohan Lal, which reads as under:

"It is stated that I am resident of above mentioned address and an Ex-Sarpanch of Lambra and presently member of Panchayat. The marriage of girl of our village namely Paloma Kumari d/o. Sh. Tarsem Lal was solemnised with Rakesh Kumar son of Kuldip Randhawa resident of Nakodar with pomp and show as per Hindu rites and rituals. I also participated in the marriage. After few days of marriage, the family members of boy started harassing the girl, upon which girl submitted complaint to SSP, regarding which a meeting was convened at Women Cell, Jalandhar (Rural). I had also gone there. During discussions, I met boy and his family twice, where during discussions, boy and his father accepted the matter of abortion in presence of respectable persons. But they denied to give in writing and no result came out of said meeting."

The aforesaid statement was made by Mohan Lal, Ex-Sarpanch when he appeared before the DSP, Sub-Division, Kartarpur on 16.3.2013. In the said statement, he has specifically mentioned that the petitioner and his family members have admitted the fact regarding forcible abortion of Paloma Kumari. Merely because the investigating officer has not mentioned the name of said Mohan Lal in the list of witnesses, the complainant cannot be permitted to suffer for this lapse on the part of the investigating agency. The accused has admitted before Mohan Lal the fact that they have conducted abortion of the complainant. The examination of said Mohan Lal, therefore, cannot be said to be unreasonable or an attempt to fill in the lacuna in the prosecution case.

In view of the above, I find no infirmity, illegality or perversity in the impugned order dated 6.4.2015 passed by learned Additional Sessions Judge, Jalandhar.

As such, affirming the impugned order, the present petition, being devoid of any merit, is dismissed.