Salman Khan vs State Of Rajasthan

Nirmaljit Kaur, J

The Criminal Misc. Petition has been filed under Section 482 of the Cr.P.C. against the order dated 14.5.2015 passed by the learned District Judge,

Jodhpur District vide which the revision petition of the petitioner was dismissed against the order dated 23.4.2015 passed by the learned Chief Judicial

Magistrate, Jodhpur District in Criminal Original Case No.68/2011 for the offence under Section 3/25 and 27 Arms Act dismissing the application of

the petitioner under Section 311 Cr.P.C.

The facts leading to the necessity of filing the application under Section 311 Cr.P.C. for recalling the witnesses in short are that on 1.10.1998 and

2.10.1998, the petitioner is stated to have hunted two black bucks at village Kankani by using two revolver i.e. (i) Revolver S. & W. .32 Bore, Number

87011 made in U.S.A. and (ii) .22 Bore Rifle No.2118. He was accused for not having a valid arms license on the date of the alleged incident. An

FIR was registered on 15.10.1998. After investigation, charge-sheet was filed for the offences under Section 3/25 and 27 Arms Act and charges too

were framed accordingly. An application for amendment of the charges was filed by the prosecution which was dismissed. However, a revision

petition was filed against the order dismissing the application for amendment of the charges before the High Court. At the same time, an application

under Section 311 of the Cr.P.C. was moved by the prosecution on 14.08.2006 and another application under Section 91, 173(8) read with Section 242

of the Cr.P.C. was filed on 30.08.2006. Reply to these applications were filed by the petitioner on 05.09.2006 and 18.09.2006 respectively. Before the

said applications could be decided, the record of the trial court was called by the High Court in S.B. Criminal Revision Petition No.858/2006.

Thereafter, the record was received back on 25.05.2013. On receipt of the said record, the evidence of the prosecution commenced once again. After

recording the evidence of the prosecution witnesses, the evidence of the prosecution was closed by an order dated 15.01.2014. Thereafter, the

defence evidence was closed on 08.12.2014 and the matter was fixed for arguments. The final arguments were heard on 09.02.2015, which continued

up till 10.02.2015. The learned Magistrate fixed 25.02.2015 for pronouncement of the judgment in the matter. Meanwhile, before the judgment could

be pronounced, an application for hearing the above mentioned two applications dated 14.08.2006 & 30.08.2006 was moved on 20.02.2015 by the

prosecution and on the date fixed for pronouncement of the judgment, the learned Magistrate is stated to have informed the petitioner’s counsel

that four applications moved by the prosecution in the year 2006 are still pending and the same have to be decided before the judgment could be

pronounced in the matter. Reply to all the applications were filed in the year 2006 itself and thereafter, the prosecution never brought up the

applications. After 9 years, on 03.03.2015, the trial court allowed two out of the four applications: (i) under Sections 91 & 173(8) read with Section

242 of the Cr.P.C. and (ii) under Section 311 of the Cr.P.C., thereby granting another opportunity to the prosecution to submit acknowledgment

receipts and documents pertaining to sending/despatching FSL reports in the matter and has also allowed the prosecution to produce four witnesses

who are relevant in connection with the said reports.

The orders of the trial court allowing the application of the prosecution under Section 91 and 173(8) Cr.P.C. read with Section 242 Cr.P.C. and 311

Cr.P.C. was challenged by the petitioner before this Court in Criminal Misc. Petition No.606/2015.

The said Criminal Misc. Petition was dismissed by this Court as under:-

“Thus, in view of the above discussion, the only limit to the wide powers appears to be the underlying golden rule that witness and the document

sought to be produced should be necessary for the just decision of the case with the object of finding out the truth or obtaining proper proof for such

fact. The objection that the application has been moved only to fill a lacuna is normally raised in each and every case. In case, an application under

Section 311 of the Cr.P.C. is dismissed on this ground alone, the very purpose of Section 311 of the Cr.P.C. would be defeated and the same would

become redundant. The same depends upon facts of each case. Moreover, the right of the petitioner can always be safeguarded by granting equal

opportunity to cross-examine, lead evidence, etc. in accordance with law.â€​

After that, the prosecution produced all the above four witnesses as PW-17, PW-18, PW-19 and PW-20 and got exhibited the documents pertaining to

copy of 'Malkhana register' with regard to the FSL report No.228/98 dated 22.9.98, FSL report no.17/99 dated 19.2.99 and FSL report no.222/98

dated 20.1.99, impression seal, documents related to sending FSL and acknowledge receipt within 7 days.

Thus, it was in these circumstances that the present application under Section 311 Cr.P.C. is moved by the petitioner requesting that he be allowed to

recall the witnesses PW-4 Shiv Chand Bohra, PW-9 Udai Kumar Raghwan, PW-13 Rajat Kumar Mishra, PW-15 Vijay Narayan and PW-16 Ashok

Patni for cross examination.

Learned counsel for the State while vehemently opposing the petition submitted that Exp.34 was proved by PW-9. Exp.59 and 59A by PW-4, Exp. 46

by PW-13, Exp.46 by PW-15. These witnesses have said nothing about these documents. Hence, there is no reason to recall them. Further, the

petitioner was allowed to recall the witnesses by an order passed by the High Court in the year 2011 but he did not exercise the said right at that

stage.

Hence, the present application has been moved after four years only to delay the matters. Moreover, the petitioner has cross-examined all the above

witnesses including the Investigating Officer in detail at that point of time with respect to these very documents and therefore, there was no necessity

to recall these witnesses. It is further argued by the learned counsel for the State that all the documents were already on record prior to the cross

examination of these witnesses by the petitioner. Hence recalling will not serve any purpose and nor is necessary for the adjudication of the case.

Heard.

There is no objection with respect to the maintainability of the petition under Section 482 Cr.P.C. Hence, the Court proceeds to adjudicate. Even

otherwise, the petition under Section 482 Cr.P.C. can be entertained to ensure that injustice is not perpetuated.

From the above, the following important facts have emerged before this Court-

(a) An application dated 20.1.2015 was moved by the prosecution after the arguments were over and the date was fixed for pronouncement of the

order, to revive their own applications dated 14.8.2006 and 30.08.2006 filed under Section 91 and 311 Cr.P.C. to enable them to produce the

documents subsequently placed as Exp.50 to 59-A and also to produce four witnesses. This application was allowed and the serious lapse on the part

of the State was overlooked keeping in mind that they were relevant and necessary for the just decision of the case.

(b) While allowing the said application, the right of the petitioner was protected and safeguarded by granting him equal opportunity to cross-examine,

lead evidence etc. in accordance with law.

(c) In fact, the prayer of the petitioner had already been allowed way back in the year 2011 to recall these witnesses by the High Court vide order

dated 4.5.2011 passed in Criminal Misc. Petition No.212/2010 by holding as under:-

“However, it is made clear that the accused shall have the right to cross examine the witnesses regarding their documents by recalling them.â€​

It is contended by the learned counsel for the petitioner that the petitioner did not require to cross examine or recall the witnesses in spite of the

permission granted by the High Court vide its order dated 4.5.2011 as the prosecution had failed to produce on record the link evidence for which they

moved an application way back on 5.9.2006 and 18.9.2006 but did not press it till 2015.

Further, when the statements of PW-13 Rajat Kuamr Mishra were recorded, the FSL report EXP-46 was not on record and it was not exhibited and

neither the documents related to sending FSL were produced nor any witness in this regard was examined. Therefore, complete cross examination of

PW-13 Rajat Kumar Mishra could not be done because at the time of examination of witness PW-13 no FSL report was on record which indicates

that the weapons in this case are fire arms. In the circumstances, this Court is of the opinion that a fair chance to the petitioner to lead his evidence in

pursuance to the fresh evidence taken on record by the Court and the witness PW-13 should be allowed to be recalled specially when he is necessary

being the sanctioning authority of arms licences. Similarly, when the statement of PW-9 Udai Kumar Raghwan was recorded, the alleged letter EXP-

34 was not on record. It is exhibited only now. Therefore, to deny cross examination of PW-9 Udai Kumar Raghwan for whatever it is worth, would

be highly unjust. Same is the case of PW-4 Shiv Chand Bohra. After recording statement of PW-4 Shiv Chand Bohra, the prosecution got exhibited

'Malkhana register' EXP-59 and EXP-59A as per the order dated 3.3.2015 passed by the learned trial court in which it has been mentioned that goods

were handed over to PW-4 Shiv Chand Bohra. Hence, his name finds mention in the documents. Therefore, it is expedient in the interest of justice to

recall the witness PW-4 for cross examination on the said documents. Cross examination of Kailash Giri does not amount to cross examination of Shiv

Chand Bohra. When the statements of PW-15 Vijay Narayan were recorded, the FSL report EXP-46 was not on record and it was not exhibited and

neither the documents related to sending FSL were produced nor any witness in this regard was examined. Therefore, he being from the licencing

department, is required to be examined, as stated, for proving that the licence was valid on that date. Also, when PW-16 Ashok Patni, S.H.O. was

examined, the documents were not exhibited and therefore he was not questioned about them at that stage. Moreover, these witnesses are being

recalled as rebuttal evidence and this right of the accused cannot be denied.

The argument of the learned counsel for the State that petitioner had already cross examined these witnesses at length and these documents were

already on record, does not help, inasmuch, as the permission to recall had already been granted by this Court vide order dated 4.5.2011 in Cr.Misc.

Petition No.212/2000. The only objection, therefore, that can be raised is with respect to the delay. However, this objection is overruled in view of the

following-

(1) The objection of delay is the last argument that prosecution should be allowed to raise. The prosecution itself had moved an application for revival

of their application under Section 91 and 311 Cr.P.C. after about 09 years of its lying undecided. In fact, the application of the petitioner under Section

311 Cr.P.C. is an outcome of the same.

(2) The petitioner did not need to cross examine the witnesses at an earlier point of time as the link evidence pertaining to FSL Report No.228/98

dated 22.02.1998 which is regarding Revolver .32 No.87011 and .22 Rifle No.2118 and their memo of seizure is Exhibit-P/2A, and FSL report

No.17/1999 dated 19.02.1999 regarding sample of the black buck NO.1 dated 11.10.1998, the documents relating to malkhana register for sending the

items of FSL were not filed nor the documents to prove the FSL report No.228/1998 and nor the documents to prove FSL report No.17/1999 were

placed on record.

(3) The argument that these documents were otherwise available in Criminal Case No.352/2000 too and their copies were handed over to the

accused, is misplaced as the petitioner cannot speculate the evidence to be produced in the case in hand just because the said evidence has been

produced in the connecting case. The evidence has to be led in each case on the charges in that particular case.

(4) The prosecution has been allowed to produce the link evidence after 09 years.. Therefore, it would not only be discriminating but also greatly

prejudice the accused, if he is not allowed to recall witnesses for evidence in rebuttal.

In the judgment rendered by the Apex Court in the case of Mannan Shaikh V. State of W.B. Reported in (2014) 12 SCC 59 wherein it has been held

that an accused should not be placed in disadvantageous position just because of delay if the said evidence is essential for just decision of a case in

absence of any such limitation envisaged under Section 311 Cr.P.C. Para 12 and 18 deals with the same:-

“The aim of every court is to discover truth. Section 311 of the Code is one of many such provisions of the Code which strengthen the arms of a

court in its effort to ferret out the truth by procedure sanctioned by law. It is couched in very wide terms. It empowers the court at any stage of any

inquiry, trial or other proceedings under the Code to summon any person as a witness or examine any person in attendance, though not summoned as

witness or recall and re-examine already examined witness. The second part of the Section uses the word ‘shall’. It says that the court shall

summon and examine or recall or re-examine any such person if his evidence appears to it to be essential to the just decision of the case. The words

‘essential to the just decision of the case’ are the key words. The court must form an opinion that for the just decision of the case recall or re-

examination of the witness is necessary. Since the power is wide it’s exercise has to be done with circumspection. It is trite that wider the power

greater is the responsibility on the courts which exercise it. The exercise of this power cannot be untrammeled and arbitrary but must be guided only

by the object of arriving at a just decision of the case. It should not cause prejudice to the accused. It should not permit the prosecution to fill-up the

lacuna. Whether recall of a witness is for filling-up of a lacuna or it is for just decision of a case depends on facts and circumstances of each case. In

all cases it is likely to be argued that the prosecution is trying to fill-up a lacuna because the line of demarcation is thin. It is for the court to consider all

the circumstances and decide whether the prayer for recall is genuine.

It was strenuously contended that the incident had taken place on 13/12/1992 and, therefore, the application made after a gap of 22 years must be

rejected. This submission must be rejected because PW15-SI Dayal Mukherjee was re-examined on 17/5/2011 and application for his recall was

made just one month thereafter. It is true that the incident is dated 13/12/1992 and the trial commenced in 2001. These are systemic delays which are

indeed distressing. But once the trial began and the Investigating Officer was re-examined on 17/5/2011, the prosecution made an application for recall

just one month thereafter. There was no delay at that stage. The submissions that PW15-SI Dayal Mukherjee has grown old; that his memory must

not be serving him right; that he can be tutored are conjectural in nature. In any case, the accused have a right to cross-examine PW15-SI Dayal

Mukherjee. The accused are, therefore, not placed in a disadvantageous position.â€​

Similarly, in the case of Nathsha Singh Vs. Central Bureau of Investigation (State) reported (2013) 5 SCC 74,1 the Apex Court held in no uncertain

terms that the accused was entitled to fair trial. Adducing evidence in support of the defence is a valuable right and the same cannot be denied. Thus,

under no circumstances, a person's right to fair trial should be jeopardised. Para 16 of the judgment is reproduced thus:-

“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 v. Madhukar Purshottam Mondkar

& Anr., Zahira Habibulla H. Sheikh & Anr. v. State of Gujarat & Ors., ; Zahira Habibullah Sheikh & Anr. v. State of Gujarat & Ors., Kalyani Baskar

(Mrs.) v. M.S. Sampoornam (Mrs.), Vijay Kumar v. State of U.P. & Anr. & Sudevanand Vs. State.

Thereafter, the Apex Court went on to say in the case of P. Sanjeeva Rao Vs. State of A.P. reported in (2012) 7 SCC 56 that delay in recalling a

witness has to be overlooked in the face of fairness of trial which was a virtue that is sacrosanct in our judicial system and no price is too heavy to

protect that virtue. Para 21 and 23 of the said judgment lays down the law on the same:-

“The extent and the scope of the power of the Court to recall witnesses was examined by this Court in Mohanlal Shamji Soni v. Union of India &

Anr. where this Court observed: (SCC p.283 para 27)

“The principle of law that emerges from the views expressed by this Court in the above decisions is that the criminal court has ample power to

summon any person as a witness or recall and re-examine any such person even if the evidence on both sides is closed and the jurisdiction of the court

must obviously be dictated by exigency of the situation, and fair-play and good sense appear to be the only safe guides and that only the requirements

of justice command and examination of any person which would depend on the facts and circumstances of each case.â€​ (emphasis supplied)

We are conscious of the fact that recall of the witnesses is being directed nearly four years after they were examined in chief about an incident that is

nearly seven years old. Delay takes a heavy toll on the human memory apart from breeding cynicism about the efficacy of the judicial system to

decide cases within a reasonably foreseeable time period. To that extent the apprehension expressed by Mr. Rawal, that the prosecution may suffer

prejudice on account of a belated recall, may not be wholly without any basis. Having said that, we are of the opinion that on a parity of reasoning and

looking to the consequences of denial of opportunity to cross-examine the witnesses, we would prefer to err in favour of the appellant getting an

opportunity rather than protecting the prosecution against a possible prejudice at his cost. Fairness of the trial is a virtue that is sacrosanct in our

judicial system and no price is too heavy to protect that virtue. A possible prejudice to prosecution is not even a price, leave alone one that would

justify denial of a fair opportunity to the accused to defend himself.â€​

The view that whenever any additional evidence is examined or fresh evidence is admitted against an accused, it is absolutely necessary in the interest

of justice that the accused should be afforded a fair and reasonable opportunity to rebut that evidence brought on record against him is consistently

observed by the Apex Court. This question was examined in the case of Rameshwar Dayal (SCC pp.525-26) and relied upon further in the case of

Mohanlal Shamji Soni Vs. Union of India & anr. reported in 1991 Supp (1) SCC 271. Para 28 of the said judgment reads thus:-

“What falls for determination now is whether the person indicated should be given an opportunity to rebut the evidence of the witness or witnesses

summoned and examined under Section 540. This question came for determination in Rameshwar Dayal's case and this court answered that question

thus:

It was argued by counsel for the State that there is no provision in the Criminal Procedure Code which requires the court to allow the appellant an

opportunity to rebut the evidence of witnesses summoned under Section 540 Cr. P.C. This argument, in our opinion, is based on a serious

misconception of the correct approach to the cardinal principles of criminal justice. Section 540 itself incorporates a rule of natural justice. The

accused is presumed to be innocent until he is proved guilty. It is, therefore, manifest that where any fresh evidence is admitted against the accused

the presumption of innocence is weakened and the accused in all fairness should be given an opportunity to rebut that evidence. The right to adduce

evidence in rebuttal is one of the inevitable steps in the defence of a case by the accused and a refusal of the same amounts not only to an infraction

of the provisions of the Criminal Procedure Code but also of the principles of natural justice and offends the famous maxim audi alteram partem

...........

A careful perusal of this provision manifestly reveals that the statute has armed the Court with all the powers to do full justice between the parties as

full justice cannot be done until both the parties are properly heard the condition of giving an opportunity to the accused to rebut any fresh evidence

sought to be adduced against him either at the trial or the appellate stage appears to us to be implicit under Section 540 of the Cr. P.C.

In the present case, the prosecution has been allowed to produce documents after a lapse of almost 09 years and that too when the judgment was

reserved for pronouncement. The accused is, therefore entitled to fair and reasonable opportunity to rebut the evidence brought on record against him.

Recalling of witnesses includes his right to rebut the evidence. More so, when the application of the petitioner to recall these witnesses was allowed

way back in the year 2011 but he did not need to exercise the same till as such time, the prosecution led its link evidence which was led only now in

2015.

In view of the above well settled proposition of law and looking to the facts of the present case as discussed above in detail, this Court has no other

option but to allow the present petition.

Accordingly, the impugned order dated 14.5.2015 passed by the learned District Judge, Jodhpur and the order dated 23.4.2015 passed by the learned

Chief Judicial Magistrate, Jodhpur District respectively are set aside. The petitioner is allowed to recall the witnesses PW-4 Shiv Chand Bohra, PW-9

Udai Kumar Raghwan, PW-13 Rajat Kumar Mishra, PW-15 Vijay Narayan and PW-16 Ashok Patni. Subject to the said witnesses being made

available in Court, the petitioner shall complete the cross examination as far as possible within three reasonable opportunities.

The misc. petition is allowed in the above terms.