Vivek Bouri @ Vivek Kumar Bauri vs State of Jharkhand And Ors

The instant revision is directed against the order dated 17.09.2019, passed by the court of learned Additional Sessions Judge, I, Jamtara, in S. T. No.

29 of 2016, rejecting the petition filed under Section 311 of the Code of Criminal Procedure for recalling and examining the Investigating Officer for

proving the notice dated 6.9.2015 issued under Section 41 (A) of Cr.P.C. issued by the I.O. as Officer-in charge of Mahila Police Station against the

petitioner.

Heard the learned counsel for the petitioner and the objection raised by the learned counsel appearing on behalf of the Opposite Party No. 2.

At this stage it would be necessary to reiterate that Section 311 of the Code of Criminal Procedure is of wide amplitude and it confers the power on

the Court to summon or recall a witness, or examine any person and re-examine a witness. It is needless to say that Section 311 Cr.P.C. comprises of

two parts. In the first part the power is discretionary whereas the second part casts a duty and obligation on the Court to examine or recall and re-

examine any witness, in case the Court is of opinion that such evidence is essential for just decision of the case.

The settled proposition of law is that while exercising the power under Section 311 Cr.P.C., a duty is cast on the Court to ensure that in such exercise

of the power, prejudice is not caused to either of the parties.

The object and scope of section 311 Cr.P.C. is to ensure that there is fair play in the administration of justice which envisages that a fair opportunity

of hearing should be given to the parties and the best evidence is adduced to enable the Court to ascertain and determine the truth while deciding the

case.

In Rajendra Prasad Vs. Narcotic Cell AIR 1999 SC 2292, the Apex Court has elaborately discussed the scope and power, conferred on the Court

under Section 311 Cr.P.C. It has been observed that no party in trial can be foreclosed from correcting errors and if proper evidence was not adduced

or relevant material was not brought on record due to any inadvertence, the Court should be magnanimous in permitting such mistakes to be rectified.

It has been further held that function of the Criminal Court is administration of criminal justice and not to count errors committed by the parties.

It is evident from the impugned order that the accused had filed the petition under section 311 Cr.P.C. at the fag end of the trial to recall of

Investigating Officer for proving the notice dated 06.09.2015 which was issued to the petitioner by the Investigating Officer in the capacity of Officer-

in charge of Mahila Police Station. The prosecution and defence had examined and cross-examined the Investigating Officer whereafter the

prosecution evidence was closed and the case was fixed for argument. It appears from the impugned order that the court below has rejected the

application under Section 311 Cr.P.C. on the sole ground that the petition was filed at the fag end of the trial. In this context it is relevant to state that

the power under Section 311 can be invoked by the court at any stage of enquiry or trial, meaning thereby the power can be exercised even at the

stage when the case is fixed for judgment as the object and scope of section 311 Cr.P.C. is to bring on record the best available evidence either by the

prosecution or the defence to enable the Court to ascertain the truth, in dispensation of criminal justice, for just decision of the case.

In the instant case the application was filed for examination of Investigating Officer for proving the notice dated 06.09.15. The case has lingered for

more than one year due to pendency of this revision on the question of recalling and re- examination of Investigating Officer.

Therefore, in the interest of justice, the order dated- 17.09.2019, passed by the court of learned Additional Sessions Judge, I, Jamtara, in S. T. No. 29

of 2016 is hereby set aside. The court below shall summon the Investigating Officer for examining him only on the question of proving whether the

said notice was issued by the I.O. Considering, the fact, that the petitioner has been lackadaisical in his approach, accordingly he is directed to deposit

a cost of Rs.2,000/- before the Secretary, District Legal Services Authority, Jamtara. The court below shall ensure that the Investigating Officer is

recalled and re-examined on or before 22nd March, 2021.

With the aforesaid direction, the revision stands allowed to the extent as indicated above.