Indian Penal Code, 1860 - Sections 447, 326 read with Section 34 - Explosives Substances Act, 1908 - Sections 3 and 4 - Code of Criminal Procedure, 1973 - Section 311 - Recall the Investigating Officer - Once recalled does not prevent further recall if the evidence appears to the court to be essential to the just decision of the case - Court can exercise power of re-summoning any witness even if it has exercised the said power earlier. Indian Penal Code, 1860 - Sections 447, 326 read with Section 34 - Explosives Substances Act, 1908 - Sections 3 and 4 - Code of Criminal Procedure, 1973 - Section 311 - Recall the Investigating Officer - 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. Cause of justice must not be allowed to suffer because of the oversight of the prosecution. Held :- 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 only guided 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. SUPREME COURT OF INDIA (FROM CALCUTTA) MANNAN SK & ORS V/S STATE OF WEST BENGAL & ANR Date of Decision: 03 July 2014 Citation: 2014 LawSuit(SC) 529 Honble Judges: Ranjana Prakash Desai, N V Ramana JUDGMENT TEXT:- Ranjana Prakash Desai, J. [1] Leave granted. [2] In this appeal order dated 11/5/2012 passed by the High Court of Calcutta is under challenge. By the impugned order the High Court reversed the trial courts order which had rejected the application filed by the prosecution under Section 311 of the Code of Criminal Procedure, 1973 (for short, the code) to recall the Investigating Officer. [3] A petty altercation over a tape recorder resulted in a major incident in which bombs were hurled at Rupchand Sk the father of PW8-Nurul Islam. Incident occurred on 13/12/1992. Rupchand Sk suffered grievous injuries. He was taken to a local hospital. From there he was shifted to Berhampore hospital where he breathed his last. On 14/12/1992 a complaint was lodged by the son of deceased Rupchand Sk - PW8-Nurul Islam with Raghunathpur Police Station on the basis of which FIR was registered. In the FIR PW8- Nurul Islam named nine persons. Initially the case was registered under Sections 447, 326 read with Section 34 of the Penal Code and Sections 3 and 4 of the Explosives Substances Act. After the death of Rupchand Sk, Section 304 of the Penal Code was added. [4] After the charges were framed the trial began. PW15-SI Dayal Mukherjee, the Investigating Officer, was examined on 18/2/2011. He was re- examined on 17/5/2011. He stated in his evidence that he had recorded deceased Rupchand Sks statement at the scene of offence. In the cross- examination he stated that he had recorded one page statement of deceased Rupchand Sk. This statement was not brought on record. [5] One month thereafter on 16/6/2011 the prosecution moved an application for recalling PW15-SI Dayal Mukherjee because the prosecution wanted to bring on record statement of deceased Rupchand Sk which it had inadvertently omitted to do. Needless to say that it is the prosecution case that after death of Rupchand Sk the said statement became his dying declaration. [6] The trial court vide order dated 22/6/2011 rejected the said application. The trial court observed that the case was at the stage of argument and no explanation was given by the prosecution as to why the statement of deceased Rupchand Sk was not brought on record by the Investigating Officer. The trial court noted that PW15-SI Dayal Mukherjee was examined on 18/2/2011 and re-examined on 17/5/2011. According to the trial court if the prosecution is allowed to recall PW15-SI Dayal Mukherjee that would enable the prosecution to fill-up the lacuna. The trial court relied on State of Rajasthan v. Doulat Ram, 1980 AIR(SC) 1314 and Mohan Lal Shamji Soni v. Union of India, 1991 AIR(SC) 1346. The trial court observed that re-examination of PW15- SI Dayal Mukherjee is not essential for the just decision of the case. [7] Being aggrieved by this order the complainant filed an application under Section 401 read with Section 482 of the Code in the High Court. The High Court reversed the trial courts order. The High Court observed that non-exhibiting of the statement of deceased Rupchand Sk was mistake of the prosecution and no advantage can flow from the said mistake to the accused. The High Court further observed that existence of the statement was known to the accused and, hence, no prejudice would be caused to them. The said order is challenged in this appeal by the appellants-accused. [8] We have heard learned counsel for the parties at some length. We have perused their written submissions. Mr. Pijush K. Roy, learned counsel for the appellants submitted that the incident took place 22 years back. The statements of witnesses were recorded under Section 161 of the Code within a week from the date of incident. The Investigating Officer was examined and cross-examined. The case is set for final arguments and, therefore, it would be unjust and unfair to recall the Investigating Officer. His recall would cause serious prejudice to the appellants. This is clearly an attempt to fill-up the lacuna which should not be allowed. Counsel further submitted that PW15-SI Dayal Mukherjee has retired from the service in the year 2010 and he is presently about 68 years of age. He might have forgotten the entire episode. It will be easy for the complainant to tutor him. Counsel submitted that Section 311 of the Code is not meant for putting the accused in a disadvantageous position. This would lead to miscarriage of justice. In support of his submissions counsel relied on Chandran v. State of Kerala, 1985 CrLJ 1288, State of Rajasthan v. Daulat Ram, Mohan Lal Shamji Soni v. Union of India & Ors, Mishrilal and ors. v. State of M.P. and ors, 2005 10 SCC 701 Mir Mohammad Omar and ors. v. State of West Bengal, 1989 4 SCC 436. [9] Mr. Anip Sachthey, learned counsel appearing for the State of West Bengal on the other hand submitted that the application was made just one month after the re-examination of the Investigating Officer. Therefore, there is no delay in recalling him. Statement of deceased Rupchand Sk was not exhibited due to inadvertence and hence for just decision of the case it is essential to recall the Investigating Officer. Counsel submitted that this would not amount to filling-up the lacuna. In support of his submissions counsel relied on P. Sanjeeva Rao v. State of Andhra Pradesh, 2012 7 SCC 56 Hanuman Ram v. State of Rajasthan & Ors, 2008 15 SCC 652 Rajendra Prasad v. Narcotic Cell, 1999 6 SCC 110 and Mohanlal Shamji Soni [10] 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 its 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 only guided 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. [11] Rather than referring to all the judgments which are cited before us, we would concentrate on Mohanlal Soni which takes into consideration relevant judgments on the scope of Section 311 and lays down the principles. Mohanlal Soni is followed in all subsequent judgments. In Mohanlal Soni this Court was considered the scope of Section 540 of the Code of Criminal Procedure, 1898 ( the old code) which is similar to Section 311 of the Code. This Court observed that it is a cardinal rule in the law of evidence that the best available evidence should be brought before the court to prove a fact or the points in issue. The relevant observations of this Court are as under: In order to enable the court to find out the truth and render a just decision, the salutary provisions of Section 540 of the Code (Section 311 of the new Code) are enacted whereunder any court by exercising its discretionary authority at any stage of enquiry, trial or other proceeding can summon any person as a witness or examine any person in attendance though not summoned as a witness or recall or re-examine any person in attendance though not summoned as a witness or recall and re-examine any person already examined who are expected to be able to throw light upon the matter in dispute; because if judgments happen to be rendered on inchoate, inconclusive and speculative presentation of facts, the ends of justice would be defeated. This Court further observed as under: Though Section 540 (Section 311 of the new Code) is, in the widest possible terms and calls for no limitation, either with regard to the stage at which the powers of the court should be exercised, or with regard to the manner in which they should be exercised, that power is circumscribed by the principle that underlines Section 540, namely, evidence to be obtained should appear to the court essential to a just decision of the case by getting at the truth by all lawful means. Therefore, it should be borne in mind that the aid of the section should be invoked only with the object of discovering relevant facts or obtaining proper proof of such facts for a just decision of the case and it must be used judicially and not capriciously or arbitrarily because any improper or capricious exercise of the power may lead to undesirable results. Further it is incumbent that due care should be taken by the court while exercising the power under this section and it should not be used for filling up the lacuna left by the prosecution or by 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 rival side and further the additional evidence should not be received as a disguise for a retrial or to change the nature of the case against either of the parties.
Posted on: Sat, 02 Aug 2014 02:24:31 +0000
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