Ghanshyambhai Madhavlal Patel vs State Of Gujarat & on 11 December, 2014

[Cites 73, Cited by 10]

Gujarat High Court

Ghanshyambhai Madhavlal Patel vs State Of Gujarat & on 11 December, 2014

Bench: J.B.Pardiwala

        R/SCR.A/5012/2014                                                                   CAV JUDGMENT




               IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

     SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 5012 of 2014
                                                            With
                SPECIAL CRIMINAL APPLICATION NO. 5013 of 2014


FOR APPROVAL AND SIGNATURE:



HONOURABLE MR.JUSTICE J.B.PARDIWALA
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1     Whether Reporters of Local Papers may be allowed to see the judgment ?

2     To be referred to the Reporter or not ?

3     Whether their Lordships wish to see the fair copy of the judgment ?

4     Whether this case involves a substantial question of law as to the interpretation of the Constitution of
      India, 1950 or any order made thereunder ?

5     Whether it is to be circulated to the civil judge ?


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                GHANSHYAMBHAI MADHAVLAL PATEL....Applicant(s)
                                  Versus
                    STATE OF GUJARAT & 1....Respondent(s)
================================================================
Appearance:
MR JEET J BHATT, ADVOCATE for the Applicant(s) No. 1
MR MAUNISH T PATHAK, ADVOCATE for the Respondent(s) No. 2
L.R. PUJARI, ADDL.PUBLIC PROSECUTOR for the Respondent(s) No. 1
================================================================

              CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA

                                                Date :11/12/2014


                                                CAV JUDGMENT

Since the challenge in both the captioned petitions is to a selfsame order passed by the learned Additional Sessions Judge, those were heard analogously and are being disposed of by this common judgment and order.

2. The petitioner, the father of one of the victims, calls in question the legality and validity of the order dated 5th November, 2014, passed by the Third Page 1 of 54 R/SCR.A/5012/2014 CAV JUDGMENT Additional Sessions Judge, Ahmedabad (Rural) at Mirzapur, below Exhs.135 and 136, in the Sessions Case No. 41 of 2013.

3. The facts giving rise to these applications may be summarized as under: 3.1 On 25.2.2013, an eyewitness to a fatal car accident lodged an FIR before the Vastrapur Police Station, Ahmedabad, of the offence punishable under Sections 279, 338, 427 and 304 IPC and Sections 177, 184 and 134/1B of the Motor Vehicles Act. The respondent No.2 original accused was driving a BMW car bearing registration No. CH01AE9360 at about 12' O Clock in the night. He was driving the car rashly at a highspeed, which resulted in an accident claiming lives of two innocent young boys, namely Rahul Ganshyambhai Patel and Shivam Premshankar Dave. The petitioner before me is the father of the deceased Rahul.

3.2 It appears on the plain reading of the FIR that the first informant who had witnessed the entire accident has stated that the person who was driving the car got down and with folded hands said "sorry" and thereafter, ran away.

3.3 It also appears that thereafter on 21st March, 2013, the first informant was produced before the 6th Additional Chief Judicial Magistrate, Ahmedabad (Rural), Mirzapur, for the purpose of recording of his statement under Section 164 of the Criminal Procedure Code. In his statement, he has stated that on 25th February, 2013, at around 11'O Clock in the morning, he had disclosed the name of the person who was driving the BMW car, his address and the CCTV footage C.D before the Police. It appears that the entire accident got recorded in a CCTV camera, which was installed in front of a shop running in the name of "Laxmi Gathya" situated at the Premchandnagar Road.

3.4 It also appears that on 27.2.2013, the identification parade was carried out and in the said identification parade, the respondent No.2 accused was identified by the first informant as the driver of the BMW car, which had met Page 2 of 54 R/SCR.A/5012/2014 CAV JUDGMENT with the accident. The investigation resulted in filing of the chargesheet, which ultimately culminated in Sessions Case No. 41/13.

3.5 The trial commenced with the first informant entering the witness box. The first informant failed to support the case of the prosecution and ultimately, had to be declared as a hostile witness. In his evidence, he admitted his presence at the place of the accident, however, he deposed that he had no idea as to who was driving the car at that point of time. He has deposed that the car dashed with the deceased persons as the same was being driven at a highspeed. He has deposed that he was unable to know as to what had happened to the driver of the BMW car. He has also deposed that he could not pay attention towards the driver of the BMW car because his two friends were seriously injured and all his attention was towards them. He has also deposed that at about 3'O Clock in the night, he learnt through the media that the car was being driven by a person named Vismay Shah i.e. the respondent No.2. Except admitting his signature on the first page and the last page of the FIR, he denied the contents of the same. In the same manner, he also denied having given any statement on oath before the Additional Chief Judicial Magistrate, Ahmedabad under Section 164 of the Code of Criminal Procedure.

4. It appears that thereafter, the trial proceeded further and in the midst of the trial, the father of one of the deceased persons filed two applications, Exhs. 135 and 136. Both these applications were filed under the provisions of Section 311 of the Code of Criminal Procedure, 1973. In the application Exh.135, the petitioner prayed to summon two witnesses (i) Shri Dilipbhai Varvabhai Desai, and (ii) Shri Padmakantbhai Rameshbhai Trivedi. According to the petitioner, on 27.2.2013, the employees of a local T.V channel running in the name of the GTPL had recorded the interview of the first informant. The interview was videographed and a CD of the same was prepared by the GTPL. The petitioner learnt about it and therefore, he prayed before the trial Court that the two persons, who had taken the interview of the first informant on behalf of the GTPL channel be permitted to be examined and to produce the CD of the Page 3 of 54 R/SCR.A/5012/2014 CAV JUDGMENT interview. It appears that along with the application, the petitioner also produced a copy of the C.D.

5. So far as Exh.136 is concerned, the same was filed for the purpose of recalling the first informant, so that he could be confronted with the statements made in the interview before the T.V channel, and recorded by the two employees of the GTPL.

6. Both these applications were heard by the trial Court and by a common order, they were ordered to be rejected. The trial Court, while rejecting both these applications, held as under: "12. Considering all these principles laid down by the above cited judgments, herein present case, it appears that the interview of the Complainant P.W.11 has been recorded by the T.V. Channel during the investigation of the present offence. But the Prosecution has not cited the proposed witnesses in the chargesheet nor produced any materials for that regards. It is pertinent to note hereby that the recording of an interview is not the part of the Investigation of present crime nor it has been recorded in presence of an Investigating Agency. Moreover, it is not the part of further investigation U/Sec. 173 (8) of the Code nor any further report is submitted to that regard by the Investigating Agency. It is also significant that it is brought on records that the certain articles and news items were being published in the newspaper as well as in the T.V. Media immediately after the date of occurrence. Even in such circumstances, the present application has been submitted by the prosecution all of surprisingly and even at the stage when almost material witnesses has been examined that before few days, they came to know about the recording of an interview of the complainant the eye witness before the T.V. Channel. Such approach of the prosecution can not be said to be fair and proper.

13. In such circumstances, it appears that the statements of proposed new witnesses have been not recorded during the Investigation nor any recording of coverage (i.e. C.D.) of an interview has been seized or recovered by the Investigating agency during the Investigation. Even at the stage of filing the chargesheet also, no material regarding such an interview is produced before the Ld. Magistrate nor before the Trial Court after committed for the trial. It is pertinent to note that all such material should be required to be disclosed before the Trial Court as early as possible and if the prosecution is permitted to disclosed such material in piece meal and such procedure is adopted, then no trial can concluded and it would cause prejudice to the accused in his right of defence.

Page 4 of 54 R/SCR.A/5012/2014 CAV JUDGMENT

14. So far as concerned with the reexamination of complainant for confronting with his statement given by the interview, now considering the judgment, in case of State of NCT Delhi V/s Mukesh in Special leave to Appeal (Crl.) No(s). 2637/2013, wherein the Hon'ble Supreme Court held that;

"Having carefully considered the submissions made on behalf of the respective parties, we are inclined to hold that, from the scheme of the Code of Criminal Procedure and the Evidence Act, it appears that the investigation and the materials collected by the prosecution prior to the filing of the chargesheet under Section 161 of the Code, are material for the purpose of Section 145 of the Evidence Act, 1872. The expression "previous statements made" used in Section 145 of the Evidence Act, cannot after the filing of the chargesheet. In our view, Section 146 of the Evidence Act also does not contemplate such a situation and the intention behind the provisions of Section 146 appears to be confront a witness with other questions, which are of general nature, which could shake his credibility and also be used to test his veracity. The aforesaid expression must, therefore, be confined to statements made by a witness before the Police during investigation and not thereafter".

"Coupled with the above is the fact that the statement made is not a statement before the Police authorities, as contemplated under Section 161 of the Code. It is not that electronic evidence may not be admitted by way of evidence since specific provision has been made for the same under Section 161 of the Code, as amended, but the question is whether the same can be used, as indicated in Section 161, for the purpose of the investigation. If one were to read the proviso to Subsection (3) of the Section 161 of the Code which was inserted with effect form 31st December 2009, it will be clear that the statements made to the police officer under Section 161 of the Code may also be recorded by audio video electronic means, but the same does not indicate a statement made before any other Authority, which can be used for the purpose of Section 145 of the Evidence Act".

"In this regard, reference may be made to the decision rendered by a Bench of the six judges of this Court in Tahsildar Singh and Ors Vs State of Uttar Pradesh (AIR 1959 SC 1012) wherein, in somewhat similar circumstances, it was stated that "previous statement" would be such statements as made during investigation".

15. In such the circumstances, the present applications do not deserve to be allowed for summoning the new witnesses (Exh. 135) and for recalling the P.W. 11 the Complainant for to confronting him from his statement/an Interview recorded before the T.V.Chanel (Exh. 136), as it is not made before the Investigating agency during the investigation. Hence the following order is passed.

Page 5 of 54 R/SCR.A/5012/2014 CAV JUDGMENT

O R D E R The present applications of Exh. 135 & Exh. 136 are hereby rejected.

Pronounced in open Court on day of 05th November, 2014."

Thus, it appears that the learned Additional Sessions Judge rejected the two applications substantially on the ground that the two persons whom the petitioner wants to be summoned for being examined are not named in the chargesheet, nor their statements have been recorded by the Police under Section 161 of the Code, in the course of the investigation. The learned Judge took the view that the interview was not a part of the investigation and the same was not recorded in presence of the Investigating Agency.

7. Being dissatisfied with the order passed by the learned Additional Sessions Judge, the father of one of the victims has come up with these two applications.

8. Submissions on behalf of the petitioner:

Mr. Jeet Bhatt, the learned advocate appearing on behalf of the petitioner vehemently submitted that the trial Court committed a serious error in rejecting both the applications i.e. Exhibits 135 and 136. Mr. Bhatt submits that it is only after the deposition of the first informant was completed that his client came to know about the T.V interview that the first informant had given to the GTPL channel on 27.2.2013, i.e. just two days after the alleged incident. Mr. Bhatt submits that in the said interview, the first informant has clearly stated that he had seen the respondent No.2 coming out from the car and saying sorry to him, ran away from the spot of the accident. Mr. Bhatt submits that the interview was recorded by the two persons named in the application, who are sought to be summoned for being examined as witnesses in the trial. Mr. Bhatt submits that the C.D itself is a document. He submits that the C.D itself is a primary and Page 6 of 54 R/SCR.A/5012/2014 CAV JUDGMENT direct evidence admissible as to what has been said and picked up by the recorder. Mr. Bhatt submits that a previous statement made by a witness and recorded on C.D can be used not only to corroborate the evidence given by the witness in the Court, but also to contradict the evidence given before the Court as well as to test the veracity of the witness and also to impeach his impartiality. Mr. Bhatt submits that the reasonings assigned by the trial Court while rejecting the applications are not tenable in law. The trial Court ought not to have rejected the applications on the ground that the witnesses sought to be summoned under Section 311 of the Code, have not been named in the charge sheet, nor their statements under Section 161 of the Code were recorded by the Police in the course of the investigation. Mr. Bhatt submitted that at least having come to know about such a C.D containing the interview of the first informant, the prosecution on its own should have filed an application under Section 173(8) of the Code for further investigation. Mr. Bhatt submits that in the interest of justice, the two witnesses should be permitted to be examined and they should be allowed to produce the C.D. In such circumstances referred to above, Mr. Bhatt prays that there being merit in these petitions, they deserve to be allowed.

9. Submissions on behalf of the respondent No.2 accused:

Mr. Amin, the learned advocate appearing on behalf of the accused has vehemently opposed this application submitting that no error, not to speak of any error of law, could be said to have been committed by the learned Judge in rejecting the two applications filed by the petitioner. Mr. Amin has raised a preliminary objection as regards the maintainability of these two petitions. According to Mr. Amin, the father of one of the victims could not have filed the two applications Exhs. 135 and 136, before the trial Court, invoking Section 311 of the Code of Criminal Procedure. Mr. Amin would submit that it is only the accused or the prosecution who could file such application under Section 311 of the Code. Mr. Amin submits that no useful purpose would be served by Page 7 of 54 R/SCR.A/5012/2014 CAV JUDGMENT examining the two witnesses because even if it is believed for the time being that such interview was given by the first informant before the T.V channel, yet his statement before the T.V channel in an interview cannot be termed as a previous statement under Section 161 of the Code, so as to permit the prosecution to contradict him with the same under Section 145 of the Evidence Act.

Mr. Amin submits that the two applications filed by the father of one of the victims is nothing, but an attempt to delay the trial. In support of his submissions, Mr. Amin has placed strong reliance on the following two decisions of the Supreme Court:

1. State of NCT of Delhi Vs. Mukesh SLP (Criminal) No. 2637 of 2013, decided on 3.5.2013;

2. Rajaram Prasad Yadav Vs. State of Bihar, reported in 2013 Criminal Law Journal 3777.

10. Submissions on behalf of the State:

Mr. L.R. Pujari, the learned APP appearing on behalf of the State has also opposed these applications. Mr. Pujari submits that the trial Court committed no error in passing the impugned order. Mr. Pujari further submits that the father of one of the victims could not have filed such an application under Section 311 of the Code. Mr. Pujari has made himself very clear that the State does not support the case of the petitioner.

In such circumstances referred to above, Mr. Pujari prays that there being no merit in these applications, they be rejected.

11. Before adverting to the rival submissions canvassed on either sides, I would like to first deal with the preliminary objection raised by the accused as regards the locusstandi of the petitioner to file application under Section 311 of the Code.

Page 8 of 54 R/SCR.A/5012/2014 CAV JUDGMENT

Preliminary objection of locus :

12. The petitioner before me is the father of one of the deceased persons. Somehow, he came to learn about the interview given by the first informant before a T.V channel. Such interview was videographed and recorded in a C.D. It appears that in the interview, the first informant explained in details how the accident had occurred and in what manner the accused had ran away from the spot of the accident. Since the first informant as an eyewitness to the incident resiled from his statement made in the FIR as well as the statement made by him before the Executive Magistrate on oath, recorded under Section 164 of the Code, the father probably might have thought that the interview, which the first informant had given would also constitute his previous statement and he could be confronted with such a previous statement. With a view to see that justice is done in a criminal trial and the guilty should not escape solely on the strength of his position in the society and power of money, if the father filed the applications under Section 311 of the Code, could it be said that he has no locusstandi in that regard. In my view, the preliminary objection deserves to be rejected outright.

13. It is true that the interest of the informant is subordinate to that of the State when a case is instituted on the basis of an investigation by the police; but it cannot be said that the informant has no interest in the matter. If there is an acquittal, the informant can move the Court for interference with the order of acquittal. The Supreme Court has observed in AIR 1970 SC 272 : (1970 Cri LJ

369), Khetrabasi Samal v. The State of Orissa etc., AIR 1962 SC 1788 :(1961(1) Cri LJ 8): K. Chinnaswamy Reddy v. State of Andhra Pradesh, AIR 1973 SC 799 :(1973 Cri LJ 577) Amar Chand Agarwala v. Shanti Bose; and AIR 1975 SC 1854 : (1975 Cri LJ 1646) Pakalapati Narayana Gajapathi Raju v. Bonapalli Pada Appadu that revision is maintainable at the instance of aggrieved private party, even if prosecution was instituted by police and not on the basis of a complaint. By way of amendment in Section 372 of the Code, inserted by Act 5 Page 9 of 54 R/SCR.A/5012/2014 CAV JUDGMENT of 2009, the victim has also been conferred with the right to prefer an appeal against order of acquittal. If any material aspect is left out at trial, the challenge to the order of acquittal by the informant may be an exercise in futile. Therefore, the limited scope for interference in application challenging acquittal notwithstanding the informant is not to be a silent spectator to irregular and/or inadequate participation in trial by the prosecution. Therefore, challenge by the informant to an order of refusal by a Court to recall a witness is maintainable.

14. For application of the provisions of S. 311 it is to be considered whether the evidence of the concerned witness is essential for a just decision in a case. Where the evidence of any person appears to the Court to be so, the Court may exercise its discretionary power in any of the three ways sanctioned in the first part of the section, i.e., (1) summon any person as a witness; (ii) examine as a witness any person present in Court though not summoned; (iii) recall and re examine a witness who has already been examined. See AIR 1968 SC 178 :

(1968 Cri LJ 231) : Jamatraj v. State of Maharashtra. The test of just decision is not limited to something necessary in the interest of the accused only. It is equally applicable to the case of the prosecution. As observed by the Supreme Court in Jamatraj's case (supra), where the Court is satisfied that the examination or reexamination of a witness is essential for a just decision of the case, its action cannot be challenged as excess of jurisdiction because it has been done after the defence has closed its case. That would be negation of fairplay and equity.

15. I may quote with profit a decision of the Supreme Court in the case of Sister Mina Lalita Baruwa Vs. State of Orissa, reported in AIR 2014 SC 782. The said case was one of the offence of rape. The informant was a catholic nun and she was brutally assaulted and molested and also gang raped by the assailants. The officer, who had held the identification parade had made a mis statement. With a view to clear the same, the complainant filed an application to recall the witness as the prosecution had not noticed the same. The trial Court rejected the application holding it beyond the scope of the provisions of Page 10 of 54 R/SCR.A/5012/2014 CAV JUDGMENT the Code of Criminal Procedure. The Supreme Court took the view that mere rejection of the petition filed by the complainant for the recalling of the witness as not maintainable, was not proper. The Supreme Court made the following observations, which I may quote as under: "18. We are convinced that the grievances as projected by the appellant as a victim, who was a victim of an offence of such a grotesque nature, in our considered view, the trial Court as well as the High Court instead of rejecting the application of the appellant by simply making a reference to Section 301 Cr.P.C. in a blind folded manner, ought to have examined as to how the oral evidence of PW18 which did not tally with Exhibit8, the author of whom was PW18 himself, to be appropriately set right by either calling upon the Special Public Prosecutor himself to take necessary steps or for that matter there was nothing lacking in the Court to have remedied the situation by recalling the said witness and by putting appropriate Court question. It is well settled that any crime is against the society and, therefore, if any witness and in the case on hand a statutory witness happened to make a blatantly wrong statement not born out from the records of his own, we fail to understand why at all the trial Court, as well as the High Court, should have hesitated or adopted a casual approach instead of taking appropriate measures to keep the record straight and clear any ambiguity in so far as the evidence part was concerned and also ensure that no prejudice was caused to any one. In our considered view, the Courts below should have made an attempt to reconcile Sections 301 and 311 Cr.P.C. in such peculiar situations and ensured that the trial proceeded in the right direction.

19. In criminal jurisprudence, while the offence is against the society, it is the unfortunate victim who is the actual sufferer and therefore, it is imperative for the State and the prosecution to ensure that no stone is left unturned. It is also the equal, if not more, the duty and responsibility of the Court to be alive and alert in the course of trial of a criminal case and ensure that the evidence recorded in accordance with law reflect every bit of vital information placed before it. It can also be said that in that process the Court should be conscious of its responsibility and at times when the prosecution either deliberately or inadvertently omit to bring forth a notable piece of evidence or a conspicuous statement of any witness with a view to either support or prejudice the case of any party, should not hesitate to interject and prompt the prosecution side to clarify the position or act on its own and get the record of proceedings straight. Neither the prosecution nor the Court should remain a silent spectator in such situations. Like in the present case where there is a wrong statement made by a witness contrary to his own record and the prosecution failed to note the situation at that moment or later when it was brought to light and whereafter also the prosecution remained silent, the Court should have Page 11 of 54 R/SCR.A/5012/2014 CAV JUDGMENT acted promptly and taken necessary steps to rectify the situation appropriately. The whole scheme of the Code of Criminal Procedure envisages foolproof system in dealing with a crime alleged against the accused and thereby ensure that the guilty does not escape and innocent is not punished. It is with the above background, we feel that the present issue involved in the case on hand should be dealt with.

20. Keeping the said perspective in mind, we refer to Sections 301 and 311 of Cr.P.C.

"301. Appearance by public prosecutors. (1) The Public Prosecutor or Assistant Public Prosecutor in charge of a case may appear and plead without any written authority before any Court in which that case is under inquiry, trial or appeal.

(2) If in any such case any private person instructs a pleader to prosecute any person in any Court, the Public Prosecutor or Assistant Public Prosecutor in charge of the case shall conduct the prosecution, and the pleader so instructed shall act therein under the directions of the Public Prosecutor or Assistant Public Prosecutor, and may, with the permission of the Court, submit written arguments after the evidence is closed in the case.

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 reexamine any person already examined; and the Court shall summon and examine or recall and reexamine any such person if his evidence appears to it to be essential to the just decision of the case."

21. Having referred to the above statutory provisions, we could discern that while under Section 301(2) the right of a private person to participate in the criminal proceedings has got its own limitations, in the conduct of the proceedings, the ingredients of Section 311 empowers the trial Court in order to arrive at a just decision to resort to an appropriate measure befitting the situation in the matter of examination of witnesses. Therefore, a reading Sections 301 and 311 together keeping in mind a situation like the one on hand, it will have to be stated that the trial Court should have examined whether invocation of Section 311 was required to arrive at a just decision. In other words even if in the consideration of the trial Court invocation of Section 301(2) was not permissible, the anomalous evidence deposed by PW18 having been brought to its knowledge should have examined the scope for invoking Section 311 and set right the position. Unfortunately, as stated earlier, the trial Court was in a great hurry in rejecting the appellant's application without actually Page 12 of 54 R/SCR.A/5012/2014 CAV JUDGMENT relying on the wide powers conferred on it under Section 311 Cr.P.C for recalling PW18 and ensuring in what other manner, the grievance expressed by the victim of a serious crime could be remedied. In this context, a reference to some of the decisions relied upon by the counsel for the appellant can be usefully made.

22. In the decision reported in J.K. International (supra), this Court considered the extent to which a complainant can seek for the redressal of his grievances in the on going criminal proceedings which was initiated at the behest of the complainant. Some of the passages in paragraphs 8, 9, 10 and 12 can be usefully referred to which are as under:

8.......What is the advantage of the court in telling him that he would not be heard at all even at the risk of the criminal proceedings initiated by him being quashed. It is no solace to him to be told that if the criminal proceedings are quashed he may have the right to challenge it before the higher forums.

9. The scheme envisaged in the Code of Criminal Procedure (for short "the Code") indicates that a person who is aggrieved by the offence committed, is not altogether wiped out from the scenario of the trial merely because the investigation was taken over by the police and the chargesheet was laid by them. Even the fact that the court had taken cognizance of the offence is not sufficient to debar him from reaching the court for ventilating his grievance.......

10. The said provision falls within the Chapter titled "General Provisions as to Inquiries and Trials". When such a role is permitted to be played by a private person, though it is a limited role, even in the Sessions Courts, that is enough to show that the private person, if he is aggrieved, is not wiped off from the proceedings in the criminal court merely because the case was chargesheeted by the police. It has to be stated further, that the court is given power to permit even such private person to submit his written arguments in the court including the Sessions Court. If he submits any such written arguments the court has a duty to consider such arguments before taking a decision.

12.......The limited role which a private person can be permitted to play for prosecution in the Sessions Court has been adverted to above. All these would show that an aggrieved private person is not altogether to be eclipsed from the scenario when the criminal court takes cognizance of the offences based on the report submitted by the police. The reality cannot be overlooked that the genesis in almost all such cases is the grievance of one or more individual that they were wronged by the accused by committing offences against them." (Emphasis Added)

23. In the famous Best Bakery case in Zahira Habibullah H. Sheikh and Page 13 of 54 R/SCR.A/5012/2014 CAV JUDGMENT another vs. State of Gujarat and others (2004) 4 SCC 158, this Court has reminded the conscientious role to be played by the criminal Courts in order to ensure that the Court is alive to the realities, realizing its width of power available under Section 311 of the Cr.P.C read along with Section 165 of the Evidence Act. The relevant part of the said decision can be culled out from paragraphs 43, 44, 46 and 56, which are as under:

"43. 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 evidencecollecting 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. The prosecutor who does not act fairly and acts more like a counsel for the defence is a liability to the fair judicial system, and courts could not also play into the hands of such prosecuting agency showing indifference or adopting an attitude of total aloofness.

44. The power of the court under Section 165 of the Evidence Act is in a way complementary to its power under Section 311 of the Code. The section consists of two parts i.e.: (i) giving a discretion to the court to examine the witness at any stage, and (ii) the mandatory portion which compels the court to examine a witness if his evidence appears to be essential to the just decision of the court. Though the discretion given to the court is very wide, the very width requires a corresponding caution. In Mohanlal v. Union of India this Court has observed, while considering the scope and ambit of Section 311, that the very usage of the words such as, "any court", "at any stage", or "any enquiry or trial or other proceedings", "any person" and "any such person" clearly spells out that the section has expressed in the widestpossible terms and do not limit the discretion of the court in any way. However, as noted above, the very width requires a corresponding caution that the discretionary powers should be invoked as the exigencies of justice require and exercised judicially with circumspection and consistently with the provisions of the Code.......

46. ....Section 311 of the Code does not confer on any party any right to examine, crossexamine and reexamine any witness. This is a power given to the court not to be merely exercised at the bidding of any one party/person but the powers conferred and discretion vested are to prevent any irretrievable or immeasurable damage to the cause of society, public Page 14 of 54 R/SCR.A/5012/2014 CAV JUDGMENT interest and miscarriage of justice. Recourse may be had by courts to power under this section only for the purpose of discovering relevant facts or obtaining proper proof of such facts as are necessary to arrive at a just decision in the case.

56. As pithily stated in Jennison v. Baker: (All ER p. 1006d) "The law should not be seen to sit by limply, while those who defy it go free, and those who seek its protection lose hope."

Courts have to ensure that accused persons are punished and that the might or authority of the State are not used to shield themselves or their men. It should be ensured that they do not wield such powers which under the Constitution has to be held only in trust for the public and society at large. If deficiency in investigation or prosecution is visible or can be perceived by lifting the veil trying to hide the realities or covering the obvious deficiencies, courts have to deal with the same with an iron hand appropriately within the framework of law. It is as much the duty of the prosecutor as of the court to ensure that full and material facts are brought on record so that there might not be miscarriage of justice. (See Shakila Abdul Gafar Khan v. Vasant Raghunath Dhoble.)" (Emphasis added)

24. The said decision was also subsequently followed in a recent decision of this Court in Sidhartha Vashisht alias Manu Sharma (supra), wherein one sentence in paragraph 188 is relevant for our purpose, which reads as under:

"188. It is also important to note the active role which is to be played by a court in a criminal trial. The court must ensure that the Prosecutor is doing his duties to the utmost level of efficiency and fair play. This Court, in Zahira Habibulla H. Sheikh v. State of Gujarat, has noted the daunting task of a court in a criminal trial while noting the most pertinent provisions of the law..... (Emphasis added)

25. In one of the earlier decisions of this Court in Mohanlal Shamji Soni (supra), wherein Section 540 of Cr.P.C of 1898 which corresponds with Section 311 Cr.P.C of 1973, this Court has pithily stated the purport and intent of the said section, which is to be worked out at times of need by the Criminal Courts in order to ensure that justice always triumphs. Paragraph 16 of the said decision is relevant for our purpose which reads as under:

"16. The second part of Section 540 as pointed out albeit imposes upon the court an obligation of summoning or recalling and reexamining any witness and the only condition prescribed is that the evidence sought to be obtained must be essential to the just decision of the case. When any party Page 15 of 54 R/SCR.A/5012/2014 CAV JUDGMENT to the proceedings points out the desirability of some evidence being taken, then the court has to exercise its power under this provision -- either discretionary or mandatory -- depending on the facts and circumstances of each case, having in view that the most paramount principle underlying this provision is to discover or to obtain proper proof of relevant facts in order to meet the requirements of justice. In this connection we would like to quote with approval the following views of Lumpkin, J. in Epps v. S., which reads thus:

"... it is not only the right but the duty of the presiding judge to call the attention of the witness to it, whether it makes for or against the prosecution; his aim being neither to punish the innocent nor screen the guilty, but to administer the law correctly .... Counsel seek only for their client's success; but the judge must watch that justice triumphs."

(Emphasis added)

26. In the decision in Rajendra Prasad (supra), this Court pointed out the distinction between lacuna in the prosecution and a mistake or error inadvertently committed which can always be allowed to be set right by permitting parties concerned by the Criminal Courts in exercise of its powers conferred under Section 311 Cr.P.C or under Section 165 of the Evidence Act. In paragraph 7, this Court has clarified as to what is a lacuna which is distinct and different from an error committed by a public prosecutor in the course of trial. The relevant part of the said paragraph reads as under:

"......A lacuna in the prosecution is not to be equated with the fallout of an oversight committed by a Public Prosecutor during trial, either in producing relevant materials or in eliciting relevant answers from witnesses......."

16. In Manohar Lal v. Vinesh Anand reported in AIR 2001 SC 1820, the Hon'ble Apex Court has held as under (para 5) : "To pursue an offender in the event of commission of an offence is to sub serve a social needSociety cannot afford to have a criminal escape his liability, since that would bring about a state of social pollution, which is neither desired nor warranted and this is irrespective of the concept of locusthe doctrine of locusstandi is totally foreign to criminal jurisprudence."

17. It is a settled position of law that the powers under section 311, CRPC can be exercised at any stage of the trial if the evidence of a witness appears to be essential to the just decision of the case and it is the duty of the court to Page 16 of 54 R/SCR.A/5012/2014 CAV JUDGMENT summon or recall examining any such person. Thus, when the evidence of the two witnesses named in the application, though not collected during the course of the investigation is essential for the just decision of the case, due to lapses on the part of the investigating officer, the applicant being a father of the victim cannot be denied justice. The courts are meant to do justice and not for only disposing the case and to declare who won the case. The counsel seek only for their clients' success, but the judge must watch that justice triumphs. The two witnesses and the C.D. which the applicant wants to produce, in my opinion, are relevant and essential for the just decision of the case. I shall discuss as regards this aspect in the later part of my judgment.

18. Thus, from the above it could be said that the preliminary objection as regards the locus of the petitioner has no legs to stand. The preliminary objection is therefore, overruled.

Analysis

19. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for my consideration in this application is whether the learned Judge committed any error in passing the impugned order. It may not be out of place to state that the High Court had refused to grant regular bail to the accused even after charge sheet. It is only after almost a period of six months from the date of the arrest that the Apex Court ordered release of the accused on bail, vide order dated 31.3.2014, passed in Special Leave to Appeal (Criminal) No. 1699 of 2014. No sooner the accused was ordered to be released on bail, than the most important eyewitness to the incident, and that too the first informant was won over and in the course of the trial, he turned hostile.

20. Section 311 of the Code of Criminal Procedure 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 Page 17 of 54 R/SCR.A/5012/2014 CAV JUDGMENT under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and reexamine any person already examined; and the Court shall summon and examine or recall and reexamine any such person if his evidence appears to it to be essential to the just decision of the case."

21. Section 138 of the Evidence Act, reads as under: "138. Order of examinations witness shall be first examinedinchief, then (if the adverse party so desires) cross examined, then (if the party calling him so desires) reexamined.

The examination and crossexamination must relate to the relevant facts, but the cross examination need not be confined to the facts to which the witness testified on his examinationinchief.

Direction of reexamination The reexamination shall be directed to the explanation of matters referred to in cross examination; and, if new matter is, by permission of the Court, introduced in reexamination, the adverse party may further crossexamine upon that matter."

22. In a recent pronouncement of the Supreme Court in the case of Rajaram Prasad Yadav v. State of Bihar and Anr. 2013 Cri. Law Journal 3777 the Court has very exhaustively discussed the law on the subject of Section 311 of Cr.P.C.

23. I may quote with profit the observations made by the Supreme Court in paragraphs Nos. 14, 15, 16, 17, 18, 19, 20, 21,22,23: "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 re examine any witness already examined. A reading of the provision shows that the expression "any" has been used as a prefix 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 prefix 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 Page 18 of 54 R/SCR.A/5012/2014 CAV JUDGMENT Evidence Act, prescribed the order of examination of a witness in the Court. Order of reexamination is also prescribed calling for such a witness so desired for such reexamination. 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 reexamination 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 reexamine any person already examined. Insofar as recalling and reexamination of any person already examined, the Court must necessarily consider and ensure that such recall and reexamination 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.

15. In this context, we also wish to make a reference to certain decisions rendered by this Court on the interpretation of Section 311, Cr.P.C. where, this Court highlighted as to the basic principles which are to be borne in mind, while dealing with an application under Section 311, Cr.P.C. In the decision reported in Jamatraj Kewalji Govani v. State of Maharashtra, AIR 1968 SC 178, this Court held as under in paragraph 14:

"14. It would appear that in our criminal jurisdiction, statutory law confers a power in absolute terms to be exercised at any stage of the trial to summon a witness or examine one present in court or to recall a witness already examined, and makes this the duty and obligation of the Court provided the just decision of the case demands it. In other words, where the court exercises the power under the second part, the inquiry cannot be whether the accused has brought anything suddenly or unexpectedly but whether the court is right in thinking that the new evidence is needed by it for a just decision of the case. If the court has acted without the Page 19 of 54 R/SCR.A/5012/2014 CAV JUDGMENT requirements of a just decision, the action is open to criticism but if the court's action is supportable as being in aid of a just decision the action cannot be regarded as exceeding the jurisdiction."(Emphasis added)

16. In the decision reported in Mohanlal Shamji Soni v. Union of India and another, 1991 Suppl (1) SCC 271 : (AIR 1991 SC 1346), this Court again highlighted the importance of the power to be exercised under Section 311, Cr. P.C. as under in paragraph 10: "10. 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 reexamine any person in attendance though not summoned as a witness or recall and reexamine 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."

17. In the decision in Raj Deo Sharma (II) v. State of Bihar, 1999 (7) SCC 604 : (AIR 1999 SC 3524 : 1999 AIR SCW 3522), the proposition has been reiterated as under in paragraph 9:

"9. We may observe that the power of the court as envisaged in Section 311 of the Code of Criminal Procedure has not been curtailed by this Court. Neither in the decision of the fiveJudge Bench in A.R. Antulay case (AIR 1992 SC 1701 : 1992 AIR SCW 1872) nor in Kartar Singh case (1994 Cri LJ 3139) such power has been restricted for achieving speedy trial. In other words, even if the prosecution evidence is closed in compliance with the directions contained in the main judgment it is still open to the prosecution to invoke the powers of the court under Section 311 of the Code. We make it clear that if evidence of any witness appears to the court to be essential to the just decision of the case it is the duty of the court to summon and examine or recall and reexamine any such person." (Emphasis added)

18. In U.T. of Dadra and Nagar Haveli and Anr. v. Fatehsinh Mohansinh Chauhan, 2006 (7) SCC 529 : (2006 AIR SCW 4840), the decision has been further elucidated as under in paragraph 15 (of SCC) :(Para 12 of AIR SCW):

Page 20 of 54 R/SCR.A/5012/2014 CAV JUDGMENT

"15. A conspectus of authorities referred to above would show that the principle is well settled that the exercise of power under Section 311, CrPC should be resorted to only with the object of finding out the truth or obtaining proper proof of such facts which lead to a just and correct decision of the case, this being the primary duty of a criminal court. Calling a witness or reexamining a witness already examined for the purpose offinding out the truth in order to enable the court to arrive at a just decision of the case 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."

(Emphasis added)

19. In Iddar and Ors. v. Aabida and Anr., AIR 2007 SC 3029 :

(2007 AIR SCW 5490), the object underlying under Section 311, Cr.P.C., has been stated as under in paragraph 11: "11. 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. The determinative factor is whether it is essential to the just decision of the case. The section is not limited only for the benefit of the accused, and it will not be an improper exercise of the powers of the court to summon a witness under the section merely because the evidence supports the case for the prosecution and not that of the accused. The section is a general section which applies to all proceedings, enquiries and trials under the Code and empowers Magistrate to issue summons to any witness at any stage of such proceedings, trial or enquiry. In Section 311 the significant expression that occurs is 'at any stage of inquiry or trial or other proceeding under this Code'.It is, however, to be borne in mind that whereas the section confers a very wide power on the court on summoning witnesses, the discretion conferred is to be exercised judiciously, as the wider the power the greater is the necessity for application of judicial mind." (Emphasis added)

20. In P. Sanjeeva Rao v. State of A.P., AIR 2012 SC 2242 : (2013 AIR SCW 492), the scope of Section 311 Cr.P.C. has been highlighted by making reference to an earlier decision of this Court and also with particular reference to the case, which was dealt with in that decision in paragraphs 13 and 16, which are as under: "13. Grant of fairest opportunity to the accused to prove his innocence was the object of every fair trial, observed this Court in Hoffman Andreas v. Inspector of Customs, Amritsar (2000) 10 SCC 430. The following passage is in this regard apposite:

Page 21 of 54 R/SCR.A/5012/2014 CAV JUDGMENT

"In such circumstances, if the new counsel thought to have the material witnesses further examined, the Court could adopt latitude and a liberal view in the interest of justice, particularly when the court has unbridled powers in the matter as enshrined in Section 311 of the Code. After all the trial is basically for the prisoners and courts should afford the opportunity to them in the fairest manner possible."

16. We are conscious of the fact that recall of the witnesses is being directed nearly four years after they were examinedinchief 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." (Emphasis added.)

21. In a recent decision of this Court in Sheikh Jumman v. State of Maharashtra, (2012) 9 SCALE 80, the above referred to decisions were followed.

22. Again in an unreported decision rendered by this Court dated 08.05.2013 in Natasha Singh v. CBI (State) Criminal Appeal No.709 of 2013 (reported in 2013 AIR SCW 3554), 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 Page 22 of 54 R/SCR.A/5012/2014 CAV JUDGMENT 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.

15. 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 and Anr., AIR 1958 SC 376; Zahira Habibulla H. Sheikh and Anr. v. State of Gujarat and Ors., AIR 2004 SC 3114 : (2004 AIR SCW 2325); Zahira Habibullah Sheikh and Anr. v. State of Gujarat and Ors., AIR 2006 SC 1367 : (2006 AIR SCW 1340); Kalyani Baskar (Mrs.) v. M.S. Sampoornam (Mrs.) (2007) 2 SCC 258; Vijay Kumar v. State of U.P. and Anr., (2011) 8 SCC 136 : (2011 AIR SCW 6236); and Sudevanand v. State through C.B.I. (2012) 3 SCC 387 : (AIR 2012 SC (Cri) 458 : 2012 AIR SCW 953).)"

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23.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 reexamine 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 safeguard, while exercising the discretion. The Court should bear in Page 24 of 54 R/SCR.A/5012/2014 CAV JUDGMENT 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.

24. Section 311 of the Code of Criminal Procedure is in two parts;

In the first part, discretion is given to the Court and enables it, at any stage of an inquiry, trial or other proceedings under the Code, (a) to summon anyone as a witness, or (b) to examine any person present in the Court, or (c) to recall and reexamine any person whose evidence was already been recorded; on the other, the second part appears to be mandatory and requires the Court to take any of the steps mentioned above if the new evidence appears to it essential to the just decision of the case. The object of the provision, as a whole, is to do justice not only from the point of view of the accused and the prosecution but Page 25 of 54 R/SCR.A/5012/2014 CAV JUDGMENT also justice from the point of view of the orderly society. The Court examines evidence under this section neither to help the prosecution nor to help the accused. It is done neither to fill up any gaps in the prosecution evidence nor to give it any unfair advantage against the accused. The fundamental thing to be seen is whether this evidence the Court thinks necessary in the facts and circumstances of the particular case before it. If this resulting in what is sometimes thought to be the "filling of lacunae" as contended by the learned counsel for the accused, that is purely a subsidiary factor and cannot be taken into consideration. Section 311 Cr.P.C. confers jurisdiction on the Judge to act in aid of justice.

25. Even if a witness, whose statement u/s. 161 Cr. P.C. had not been recorded at the time of the investigation, can be allowed to be examined u/s. 311 Cr. P.C. Under Section 231 Cr. P.C., the Court is to take all evidence produced in support of the prosecution. Therefore, where the statement of witness is not recorded u/s. 161 Cr. P.C., but the prosecution with the prior permission of the Court produce such a witness, the accused cannot be said to have been taken by surprise. When a witness examined in Court, whose statement has not been recorded at the time of the investigation u/s. 161 Cr. P.C., the evidentiary value to be attached to the evidence of such witness has to be looked into and if, it is found that prejudice has been caused to the accused, then the evidence of such witness may not be acted upon.

26. I may quote with profit a Division Bench Decision of this Court in the case of Abdulla Gafur Sumra Vs. State of Gujarat reported in 1993 Criminal Law Reporter (Gujarat) 159.

"23 Shri Barejia for the appellant has then urged that the witness at Exh. 122 was not cited as a witness in the chargesheet and he could not have been examined at trial by an on behalf of the prosecution in support of its case. In fact the submission urged before us by Shri Barejia for the appellant was to the effect that if a witness is not cited in the first information report or the complaint or the charge sheet he cannot be examined as a witness on behalf of the prosecution at trial. This submission has to be stated only to be Page 26 of 54 R/SCR.A/5012/2014 CAV JUDGMENT rejected for the simple reason that acceptance of such submission would render nugatory Sec. 311 of the Cr.P.C. It cannot be gainsaid that the enabling provision contained therein is not for gracing the statute book or as an empty or idle formality. The court cannot be oblivious to the fact that it has not only to see that no innocent person is convicted and sentenced but it has also to see that no guilty person escapes the clutches of the penal law."

27. I am conscious of the fact that the aid of section 311, CRPC 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 an 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 section 311 Cr. PC and it should not be used for filling up the lacuna left by the prosecution or by the defense or to the disadvantage of the accused or to cause serious prejudice to the defense 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.

28. I shall now look into the decision of the Supreme Court on which strong reliance has been placed on behalf of the accused.

29. In State of NCT of Delhi (supra), the challenge before the apex Court was against the judgment and order passed by a learned Single Judge of the Delhi High Court in a Criminal Revision Application. The learned Single Judge had set aside the order passed by the trial Court rejecting the prayer made on behalf of the accused to confront the P.W 1 with a statement made by him in a television interview on Zee News on 8th February, 2013, after the filing of the chargesheet, for the purpose of contradicting him with his previous statement, in order to test his veracity and to impeach his credibility, as provided for under Section 146 of the Evidence Act, 1872. On the basis of certain statements made by the P.W 1, the complainant, and other materials, a chargesheet was filed by Page 27 of 54 R/SCR.A/5012/2014 CAV JUDGMENT the Investigating Authority against the accused. After the chargesheet had been filed, the complainant gave a T.V interview on Zee News on the same subject. In the said circumstances, the question which arose before the apex Court was whether, under the provisions of Section 145 of the Evidence Act, a subsequent statement made after the filing of the chargesheet could be treated as a "previous statement" and be utilised for the purpose of Section 145 thereof. The apex Court considered the provisions of Section 145 of the Evidence Act and made the following observations: "Having carefully considered the submissions made on behalf of the respective parties, we are inclined to hold that, from the scheme of the Code of Criminal Procedure and the Evidence Act, it appears that the investigation and the materials collected by the prosecution prior to the filing of the chargesheet under Section 161 of the Code, are material for the purposes of Section 145 of the Evidence Act, 1872. The expression "previous statements made" used in Section 145 of the Evidence Act, cannot, in our view, be extended to include statements made by a witness, after the filing of the chargesheet. In our view, Section 146 of the Evidence Act also does not contemplate such a situation and the intention behind the provisions of Section 146 appears to be to confront a witness with other questions, which are of general nature, which could shake his credibility and also be used to test his veracity. The aforesaid expression must, therefore, be confined to statements made by a witness before the police during investigation and not thereafter.

Coupled with the above is the fact that the statement made is not a statement before the Police authorities, as contemplated under Section 161 of the Code. It is not that electronic evidence may not be admitted by way of evidence since specific provision has been made for the same under Section 161 of the Code, as amended, but the question is whether the same can be used, as indicated in Section 161, for the purposes of the investigation. If one were to read the proviso to subsection (3) of Section 161 of the Code, which was inserted with effect from 31st December, 2009, it will be clear that the statements made to the police officer under Section 161 of the Code may also be recorded by audiovideo electronic means, but the same does not indicate a statement made before any other Authority, which can be used for the purposes of Section 145 of the Evidence Act.

The decision referred to by the learned counsel in the case of Bipin Shantilal Panchal [supra] has to be read and understood in that context. The said decision appears to have been rendered in a Page 28 of 54 R/SCR.A/5012/2014 CAV JUDGMENT situation where, at every stage, the prosecution's attempts to adduce evidence was being objected to on behalf of the accused. It is in such circumstances that the decision was rendered. This is a case where, however, an attempt of the defence to introduce evidence, which is not contemplated within the scheme of the Code or the Evidence Act, was before the Court and the Court decided that the same could not be permitted. The decision in the case of Bipin Shantilal Panchal [supra] cannot, therefore, be applied to the facts of this case.

In this regard, reference may be made to the decision rendered by a Bench of six Judges of this Court in Tahsildar Singh & Ors. vs. State of Uttar Pradesh [A.I.R. 1959 S.C. 1012], wherein, in somewhat similar circumstances, it was stated that "previous statement" would be such statements as made during investigation."

30. A close reading of the decision of the Apex Court in the case of State of NCT of Delhi (supra) reveals as under: (I) In the said case, a prayer was made on behalf of the accused to confront the p.w. no.1 with a statement made by him in a television interview on Zee News after the filing of the chargesheet, for the purpose of contradicting him with his previous statement to test his sincerity and to impeach his credibility as provided for under section 146 of the Evidence Act, 1872.

(II) The question that fell for the consideration of the Apex Court was whether under the provisions of section 145 of the Evidence Act, a subsequent statement made after the filing of the chargesheet could be treated as a "previous statement" and be utilized for the purposes of section 145.

(III) What was argued before the Apex Court was that the interview given by the p.w. no.1 on television after the filing of the chargesheet could not be said to be a previous statement for the purposes of section 145 of the Evidence Act.

31. On behalf of the accused, it was submitted that the use of the expression "previous statement" made in section 145 of the Evidence Act should not be interpreted to mean, the statement made only at the time of the investigation under section 161 of the Code, but should also be extended to any period before the witness is actually examined and that, accordingly, a statement, which is made even after the filing of the chargesheet by the prosecution witness, could Page 29 of 54 R/SCR.A/5012/2014 CAV JUDGMENT be used to confront him for the purpose of any contradiction which may be evident.

32. The Apex Court took the view that from the scheme of the C.R.P.C. and the Evidence Act, the investigation and the materials collected by the prosecution prior to the filing of the chargesheet under section 161 of the Code, are material for the purposes of section 145 of the Evidence Act, 1872. The Court further explained that the expression "previous statement made" used in section 145 of the Evidence Act, would not include statement made by a witness after the filing of the chargesheet. The Court finally concluded by observing that the statement made by the witness in a television interview would not fall within the ambit of a statement before the police authorities, as contemplated under section 161 of the Code.

33. In the present case, the factual scenario is quite different. The first informant had, much prior to the filing of the chargesheet, had given an interview before a local T.V. channel, which was recorded in a C.D. However, the investigating officer did not come to know about the same, otherwise, probably, he would have investigated in that direction too. The trial commenced and the first informant, as an eye witness to the incident, turned hostile. At a later stage, the family members of the two victims learnt about such interview given by the first informant within three days of the fatal accident to a local T.V. Channel. The prayer before the trial court was that since the new facts had surfaced, the prosecution should be permitted to examine the two witnesses and further confront the first informant with the statement he had made before the T.V. Channel. Over and above, the prayer was that the C.D. itself may be admitted in evidence as it is a document by itself.

34. Let me assume for the moment that the statement made by the first informant before the local T.V. Channel was not in the course of the investigation and such statement not being recorded under section 161 of the Code, the first informant cannot be contradicted with his previous statement Page 30 of 54 R/SCR.A/5012/2014 CAV JUDGMENT made before the T.V. Channel. In this context, I may quote with profit a decision of the Supreme Court in the case of Bhagwan Singh Vs. State of Punjab, reported in AIR 1952 SC 214. The observations made by the Supreme Court in paragraph 22 are important. Paragraph 22 is quoted hereunder: "22. A witness is called and he says in chief, "I saw the accused shoot X". In crossexamination he resiles and says "I did not see it at all." He is then asked "but didn't you tell A, B and C on the spot that you had seen it?" He replies "yes, I did." We have, of set purpose, chosen as an illustration a statement which was not reduced to writing and which was not made either to the police or to a Magistrate. Now, the former statement could not be used as substantive evidence. It could only be used as corroboration of the evidence in chief under S. 157 of the Evidence Act or to shake the witness's credit or test his veracity under S. 146. Section 145 is not called into play at all in such a case. Resort to S. 145 would only be necessary if the witness 'denies' that he made the former statement. In that event it would be necessary to prove that he did, and 'if the former statement was reduced to writing,' then S. 145 requires that his attention must be drawn to those parts which are to be used for contradiction. But that position does not arise when the witness admits the former statement. In such a case all that is necessary is to look to the former statement of which no further proof is necessary, because of the admission that it was made."

Applying the principle explained by the Supreme Court aforenoted, let me envisage a situation wherein the first informant, on being recalled, admits that he had given an interview before the T.V channel and had made the statements as contained in the transcript of the C.D., then what would be the position. Once he admits, then Section 145 of the Evidence Act would not come into play. Section 145 would come into play only if the witness "denies" that he had given an interview to the GTPL channel. It cannot be said at this stage whether the first informant would admit or deny. Just because he has been declared as a hostile witness is no ground for me to assume that he would deny about the interview given by him to the GTPL channel.

35. In my view, the decision of the Supreme Court in the case of Mukesh (supra) does not take the view that on the strength of such statement made by the first informant before a local T.V. Channel, his credibility cannot be impeached by proof of former statement inconsistent with any part of his Page 31 of 54 R/SCR.A/5012/2014 CAV JUDGMENT evidence which is liable to be contradicted. I am saying so keeping in mind section 155(3) of the Evidence Act.

36. If a witness is asked any question tending to impeach his impartiality, and answers it by denying the facts suggested, he may be contradicted. That part of the witness' evidence, therefore, in which questions put with the object of impeaching his impartiality are answered, is "liable to be contradicted" within the meaning of section 155(3) of the Evidence Act; and since independent proof to contradict the witness's statement containing an admission or suggestion of his impartiality may be given under section 155, it follows that, under section 145, the witness may also be crossexamined as to any such statement in writing. "It is certainly allowable." said Pollock, C.B. "to ask a witness in what manner he stands affected towards the opposite party in the cause, and whether he does not stand in such a relation to that person as is likely to affect him and prevent him from having an unprejudiced state of mind, and whether he has not used expressions importing that he would be revenged on someone, or that he would give such evidence as might dispose of the cause in one way or the other. If he denies that, you may give evidence as to what he said not with the view of having a direct effect on the issue but to show what is the state of mind of what witness, in order that the jury may exercise their opinion as to how far he is to be believed. But those cases, where you may show the condition of a witness or his connection with either of the parties, are not to be confounded with other cases where it is proposed to contradict a witness on some matter unconnected with the question at issue. Thus, section 145 of the Evidence Act only refers to such statements as are made by the witness in writing or have been reduced into writing. But as an independent proof of a former inconsistent statement, whether the statement be in writing or oral, may, under section 155(3), be given, it follows that a witness may be crossexamined as to the former inconsistent oral statements relating to the relevant facts. There is nothing in Section 155(3) or Section 145 of the Evidence Act requiring that, if it is intended to impeach the credit of a witness by proof of a former inconsistent oral statement, the witness must be questioned as to that statement or his Page 32 of 54 R/SCR.A/5012/2014 CAV JUDGMENT attention drawn to it, but the reason of the rule requiring the witness to be confronted with the statement, namely, that the witness should have an opportunity of explaining or reconciling the inconsistency, is as applicable to a written statement as to an oral statement. In England, the rule as to confrontation applies not only to all statements whether reduced into writing or not, but also to acts done by the witness, if such statements or acts are intended to be given in evidence with a view to contradict him or with a view to impeaching his credit and it seems that the same rule will be observed in this country. "I like the broad rule, said Patteson, J., "that when you mean to give evidence of a witness's declaration for any purpose, you should ask him whether he over used such expression".[See Principles and Digest of the Law of Evidence New Edition, 2nd Volume by Chief Justice M. Monir, revised by Justice Deoki Nandan]

37. In my view, the proposition of law explained by the apex Court in the case of Mukesh (supra) should be understood in the peculiar facts of that particular case.

38. I may quote with profit a decision of the Supreme Court rendered by a Constitution Bench in the case of N. Sri Rama Reddy and ors. Vs. Shri V.V. Giri, AIR 1971 SC 1162. The relevant observations of the Supreme Court are as under: "11. In this connection counsel relied upon Section 146, Exception 2 to Section 153 and Clause (3) of Section 155 of the Evidence Act. Section 146 deals with questions lawful in crossexamination and, in particular, Clause (1) thereof provides for a witness being crossexamined by questions being put to him which tend to test his veracity. Section 153 generally deals with exclusion of evidence to contradict answers to questions testing veracity, but exception 2 states that if a witness is asked any question tending to impeach his impartiality and answers it by denying the facts suggested, he may be contradicted. Section 155 deals with impeaching the credit of witness by the various ways dealt with in Clauses (I) to (4).One of the ways by which the credit of a witness may be impeached is dealt with in Clause (3) and that is by proof of former statements inconsistent with any part of his evidence which is liable to be Page 33 of 54 R/SCR.A/5012/2014 CAV JUDGMENT contradicted. Mr. Daphtary pointed out that Section 146 must be read with Section 153. W. cannot accept this contention in its entirety. It may be that Clause (3) of Section 146 may have to be read along with the main Section 153 but C1. (1) of Section 146 and exception (2) to Section 153 deal with different aspects. Under Section 146 (1) questions may be put to a witness in crossexamination to test his veracity and, under Exception 2 to Section 153 a witness may be contradicted when he denies any question tending to impeach his impartiality. The object of the election petitioner to adduce the taperecorded conversation as evidence is to impeach the testimony of the witness that he has never seen the pamphlet and that he has never attempted to induce the election petitioner not to file the election petition on threat of serious consequences, and to establish that the evidence given in Court is quite contrary to the statements made by him in the conversation that he had with Abdul Ghani Dar and which has been recorded on tape.

12. We will now refer to the case law on the subject. In Hopes v. H. M Advocate, (1960) Scots Law Times 264 a taperecorded conversation which took place between a complainant and a blackmailer was played before the jury and sought to be put in evidence by a police officer who had listened to the conversation as it was transmitted through the loudspeaker. Objections were raised to the admissibility of the said evidence. The learned triad Judge overruled the objection as follows :

"New techniques and new devices are the order of the day. I can't conceive, for example, of the evidence of a ship's captain as to what he observed being turned down as inadmissible because he had used a telescope, any more than the evidence of what an ordinary person sees with his eyes becomes incompetent because he was wearing spectacles. Of course, comments and criticisms can be made, and no doubt will be made, on the audibility or the intelligibility, or perhaps the interpretation, of the results of the use of a scientific method, but that is another matter, and that is a matter of value, not of competency. The same can be said of visual observation by a witness who says he sees something; his evidence can be criticised because of his sight or because of the sort of glasses he is wearing, and so on, but all these matters are matters of value and not of competency.'' Accordingly, the learned Judge allowed the police officer to give evidence as to what he heard on the tape recorder, which was played before the Jury.

13. On appeal to the High Court of Judiciary, it is seen that no objection appears to have been taken to the competency of the evidence furnished by the taperecorder but the admissibility of the evidence of the police officer based upon his hearing of the taperecorded conversation was objected to. This objection was over ruled by the High Court of Judiciary Page 34 of 54 R/SCR.A/5012/2014 CAV JUDGMENT stating that it is competent for the police officer to give evidence of conversation which he hears with the help or hearing aid or. as in the case before them, when the conversation is transmitted to him over a distance by wireless and that there may be criticism of the quality of his evidence and not about the competency of the evidence of what he has heard. The Court further observed at p. 267:

"The Inspector's evidence of the conversation was as much primary evidence as the evidence from the replaying of the tape recorded. Each received it at the same time, the one recording it in the human memory the other upon a piece of tape".

From the above decision it is apparent that the tape itself is primary and direct evidence admissible as to what has been said and picked up by the recorder.

14. In R. v Mills, (1962) 3 A1I ER 298 a conversation which had been recorded on tape between two of the persons was heard by a police officer who gave evidence that he has himself remembered the various remarks which passed between those two persons which could be corroborated by the conversation recorded on the tape. But the tape recording itself was not introduced in evidence nor was there any production of the record by consent before the Jury. They referred to the decision of the High Court of Judiciary in Hopes' Case, (1960) Scots Law Times 264 and held that according to the said decision the tape recorded conversation was admissible as direct evidence. Though the discussion in the Judgment shows that a taperecorded conversation is admissible in evidence, ultimately the Court left open the question stating:

''The Court has not debated, and is not deciding any broad and general question of principle whether evidentiary material obtained by the use of a taperecorder without the concurrence of a human being listening to the same sounds is admissible or is not admissible in evidence in a criminal trial".

But it is significant to note that the Court of Criminal Appeal rejected the contention of the counsel for the accused that there has been any question of introduction of hearsay evidence at the trial by the evidence of the police officer giving evidence after refreshing his memory from the tape.

15. The question again directly arose in R. v. Masqud Ali, (1965) 2 All ER 464. In that case a conversation which took place in Punjabi dialect between two persons and which had been recorded on the tape was played before the jury and was admitted in evidence by the trial Judge. Objection was taken before the Court of Criminal Appeal regarding the admissibility in evidence of the tape recorded conversation between the accused. Therefore the point that specifically arose before the Court of Appeal was Page 35 of 54 R/SCR.A/5012/2014 CAV JUDGMENT 'Is a tape recording as such admissible in evidence, as a matter of law?' After referring to the observations in Mills' Case, (1962) 3 All ER 298, the appellate Court noted that the question regarding the admissibility of a tape record was not actually decided in that case. The decision of the High Court of Judiciary in Hopes' Case. (1960) Scots Law Times 264 was referred to and it was noted that the evidence of the police officer who listened to the tape recorder was held to be admissible. The Court said, at p. 469 :

"We think that the time has come when this Court should state its views of the law on a matter which is likely to be increasingly raised as time passes. For many years now photographs have been admissible in evidence on proof that they are relevant to the issues involved in the case and that the prints are taken from negatives that are untouched. The prints as seen represent situations that have been reproduced by means of mechanical and chemical devices. Evidence of things seen through telescopes or binoculars which otherwise could not be picked up by the naked eye have been admitted and now there are devices for picking up, transmitting and recording, conversations. We can see no difference in principle between a tape recording and a photograph. In saying this we must not be taken as saying that such recordings are admissible whatever the circumstances, but it does appear to this Court wrong to deny, to the law of evidence advantages to be gained by new techniques and new devices provided the accuracy of the recording can be proved and the voices recorded properly identified; provided also that the evidence is relevant and otherwise admissible, we are satisfied that a tape recording is admissible in evidence Such evidence should always be regarded with some caution and assessed in the light of all the circumstances of each case. There can be no question of laying down any exhaustive set of rules by which the admissibility of such evidence should be judged".

In consequence, the Court held that the tape recorded conversation was admissible in evidence, subject to the limitations mentioned in the above extract

16. It will therefore be seen that though the question of admissibility of a taperecorded conversation had been left open in Mills' Case, (1962) 3 All ER 298, the same wee specifically considered and decided affirmatively in Maqsud Ali's Case. (1965) 2 All ER 464.

17. Before we deal with decisions of this Court bearing on this point, it is necessary to advert to two decisions, one of the Punjab High Court and the other, of the Calcutta High Court. In Rup Chand v. Mahabir Parshad, AIR 1956 Punj 173 the defendant, in answer to a suit for recovery of a certain sum of money on the basis of a promissory note, put forward a plea that the original promissory note containing certain endorsement had Page 36 of 54 R/SCR.A/5012/2014 CAV JUDGMENT been destroyed and had been replaced by another promissory note bearing the same date. The defendant attempted to substantiate this plea by the oral testimony of a broker but the latter declined to support him. The defendant requested the Court to permit to confront the broker witness with the conversation which had taken place between himself and the broker in regard to the destruction of the earlier promissory note and which had be" faithfully recorded on a taperecorder. The plaintiff objected to the admissibility of the evidence by tape recorder, but the trial Court overruled the objection. In the revision taken before the High Court by the plaintiff, the order of the trial Court was confirmed. The High Court relied upon Section 155 (3) of the Evidence Act and held that as the broker appearing as a witness in the case before it had made a statement to the defendant on a former occasion which was at variance with the statement made by him before the Court, there can be no doubt that the defendant could establish that a previous statement which was contradictory to the evidence given before the Court was made by the witness to him, Dealing with the question whether a record of such a previous statement, as prepared by a scientific instrument, could be produced in. Court as evidence, the High Court held that such a taperecorded statement was admissible in evidence, and observed as follows :

"I am aware of no rule of evidence which prevents a defendant who is endeavouring to shake the credit of a witness by proof of former inconsistent statements, from deposing that while he was engaged in conversation with the witness a tape recorder was in operation, or from producing the said tape recorder in support of the assertion that' a certain statement was made in his presence''.

This decision lays down two propositions: (i) that a taperecorded conversation is admissible in evidence and that (ii) if it contains a previous statement made by a witness, it can be used to contradict the evidence given before the Court.

18. In Manidra Nath v. Biswanath, (1963) 67 Cal WN 191 the Calcutta High Court had to consider whether a defendant was entitled to adduce in evidence a previous statement of the plaintiff and recorded on the tape to contradict the plaintiff's evidence given before the Court and held that the taperecorded conversation was admissible in evidence and the previous statement recorded therein could be used to contradict the evidence given before the court After referring to Rup Chand's Case, AIR 1956 Punj 173, the Court observed at p. 192:

''If the plaintiff, while he is in the witness box, makes a statement which is at variance with a statement previously made by him, the plaintiff may be asked whether he made such previous statement and if he denies having made the previous statement, such previous statement may be proved by the defendant. There, as in this case, it Page 37 of 54 R/SCR.A/5012/2014 CAV JUDGMENT is alleged that the previous statements of the plaintiff were recorded in a taperecorder, those statements may be admitted in evidence, if it is proved that they were made by the plaintiff and that the instrument accurately recorded those statements. The fact that the statements were recorded in a taperecorder and the recording was made behind the back and without the knowledge of the plaintiff is by itself no objection to the admissibility of the evidence''.

There are two decisions of this Court bearing on this matter S. Pratap Singh v. The State of Punjab, (1964) 4 SCR 733 = (AIR 1964 SC 72) and Yusuffalli v. State of Maharashtra, (1967) 3 SCR 720 = (AIR 1968 SC 147).

19. In Pratap Singh's case, (1964) 4 SCR 733 = (AIR 1964 SC 72) it has been held that rendering of a taperecorded conversation can be legal evidence by way of corroborating the statement of a person who deposes that the other speaker and he carried on the conversation and even of the statement of a person who may depose that he overheard the conversation between the two persons and what they actually stated had been tape recorded that weight to be given to such evidence will depend on the other facts which may be established in a particular case. Though there was a difference of opinion in the majority and minority judgments regarding certain other aspects which arose for consideration, so far as the admissibility of a taperecorded conversation in evidence, all the Judges appear to have been unanimous in the view that it was admissible. But it must be noted that in the majority judgment it is stated that it was not contended on behalf of the State that the taperecordings were inadmissible. Similarly, in the minority judgment also it is observed that taperecordings can be legal evidence by way of corroborating the statements of a person who deposes that the speaker and he carried on that conversation and, as it had not been held by the trial Court that the record of a conversation on tape is not admissible in evidence for any purpose it was not necessary to pursue the matter further.

20. In Yusuffalli's case, (1967) 3 SCR 720 = (AIR 1968 SC 147) the question was whether a conversation between the complainant and a person, who later figured as an accused on a charge of offering bribe, and recorded on tape was admissible in evidence. It is seen from the decision of this Court that the tape recorder was played in Court at the trial of the accused. This Court held that the evidence of the complainant was sufficiently corroborated by the taperecorder and observed at p. 723:

"The contemporaneous dialogue between them formed part of the resgestae and is relevant and admissible under Section 8 of the Indian Evidence Act. The dialogue is proved by Shaikh. The tape record of the dialogue corroborates his testimony. The process of tape recording offers an accurate method of storing and later Page 38 of 54 R/SCR.A/5012/2014 CAV JUDGMENT reproducing sounds. The imprint on the magnetic tape is the direct effect of the relevant sounds. Like a photograph of a relevant incident, a contemporaneous tape record of a relevant conversation is a relevant fact and is admissible under Section 7 of the Indian Evidence Act".

Reference was made, with approval, to the decision of the Punjab and Calcutta High Courts in Rup Chand's case, AIR 1956 Punj 173 and Manindra Nath's case, (196:3) 67 Cal WN 191 and also to the earlier decision of this Court in Pratap Singh's Case, (1964) 4 SCR 733 = (AIR 1964 SC 72) where a tape recorded conversation had been admitted in evidence. The decision in Maqsud Ali's Case, (1965) 2 All ER 464 was also quoted with approval.

21. In particular, it will be noted that this Court, in the said decision, approved of the decision of the Punjab High Court in Rup Chand's Case, AIR 1956 Punj 173, holding that tape recording of a former statement of a witness can be admitted in evidence to shake the credit of the witness under Section 155 (3) of the Evidence Act

22. Having due regard to the decisions referred to above, it is clear that a precious statement, made by a person and recorded on tape, can be used not only to corroborate the evidence given by the witness in Court but also to contradict the evidence given before the Court, as well as to test the veracity of the witness and also to impeach his impartiality. Apart from being used for corroboration, the evidence is admissible in respect of the other three lastmentioned matters, under Section 146 (1), Exception 2 to Section 153 and Section 155 (3) of the Evidence Act. Therefore it is not possible for us to accept the contention of Mr. Daphtary that the previous statement can be used only for purposes of corroboration but not for the purpose of contradicting the evidence given before the Court. If a previous statement made by a person can be used to corroborate his evidence given before the Court, on principle, we do not see any reason why such previous statement cannot be used to contradict and also for the other purposes referred to above. In particular the fact that the decisions of the Punjab and Calcutta High Courts in Rup Chand's case, AIR 1956 Punj 173 and Manindra Nath's case, (1963) 67 Cal WN 191 where the previous statements have been used to contradict the evidence given before the Court has been approved by this Court in Yusufalli's Case, (1967) 3 SCR 720 = (AIR 1968 SC 147) clearly establishes that the contention of Mr. Daphtary that the previous statement cannot be used to contradict the evidence given before the Court cannot be accepted. As pointed out already, Mr. Daphtary has not challenged the correctness of the decision in Yusufalli's Case, (1967) 3 SCR 720 = (AIR 1968 SC 147) Therefore the first ground of objection raised by Mr. Daphtary will have to be overruled."

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39. The Supreme Court in the case of Yusufalli Esmail Nagree vs. The State of Maharashtra, AIR 1968 SC 147, considered the question regarding a tape record of a former statement of a witness to seek the credit of the witness under section 155(3) of the Evidence Act, The Court observed as under:

"The process of tape recording offers an accurate method of storing and later reproducing sounds. The imprint on the magnetic tape is the direct effect of the relevant sounds. Like a photograph of a relevant incident, a contemporaneous tape record of a relevant conversation is a relevant fact and is admissible under S. 7 of the Indian Evidence Act."

In Rup Chand v. Mahabir Parshad, AIR 1956 Punj 173 a tape record of a former statement of a witness was admitted in evidence to shake the credit of the witness under S. 155 (3) of the Indian Evidence Act. The case was followed in Manindra Nath v. Biswanath Kundu, (1963) 67 Cal WN 191. In S. Pratap Singh v. State of Punjab, 19644 SCR 733: (AIR 1964 SC 72) the tape record of a conversation was admitted in evidence to corroborate the evidence of witnesses who had stated that such a conversation had taken place. In R. v. Maqsud Ali, (1965) 2 All ER 461, a tape record of a conversation was admitted in evidence, though the only witness who overheard it was not conversant with the language and could not make out what was said.If a statement is relevant an accurate tape record of the statement is also relevant and admissible. The time and place and accuracy of the recording must be proved by a competent witness and the voices must be properly identified. One of the features of magnetic tape recording is the ability to erase and reuse the recording medium. Because of this facility of erasure and reuse, the evidence must be received with caution. The court must be satisfied beyond reasonable doubt that the record has not been tampered with."

40. Since the Supreme Court has quoted with approval a decision of the Punjab High Court in the case of Rupchand (supra), I may also quote the relevant observations made in that judgment.

"3. The only two sections which appear to have any bearing on the matter in controversy between the parties are Sections 145 and 155(3), Indian Evidence Act. Section 145 provides that a witness may be crossexamined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such 'writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.

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The record of a conversation appearing on a taperecorder can by no stretch of meaning be regarded as a statement "in writing or reduced into writing" for Section 3(65), General Clauses Act declares that expressions referring to "writing" shall be construed as including references to printing, lithography, photography and other modes of representing or reproducing words in a visible form and the record which appears on a, taperecorder cannot fall within the ambit of this) definition.

The expression "writing" appearing in Section 145 refers to the tangible object that appeal : to the sense of sight and that which is susceptible of being reproduced by printing, lithography ' photography etc. It is not wide enough to in elude a statement appearing on a tape which can be reproduced through the mechanism of a taperecorder.

4. The other provision on which reliance has been placed is Section 155(3), Evidence Act. This section provides that the credit of a witness may be impeached by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted!. If the witness in the present case made a statement to the defendant before the commencement of this case which is at variance with the statement made by him on a later date, there can be no doubt that it can be proved by the defendant going into the witnessbox and deposing that the statement was in fact made to him.

The correctness of this proposition is not in dispute. Difficulty has, however, been presented by the question whether a record of that statement as prepared by a scientific instrument cart be produced in evidence in Court.

5. The answer is in my opinion clearly in the affirmative. Legal evidence consists of the oral testimony of witnesses and of documents produced in the case, but it is open to a person giving evidence in Court to produce instruments or devices used in the commission of a crime and to exhibit maps, charts, diagrams, models, photographs and Xray pictures, when properly authenticated, of some fact in issue.

A witness testifying to a murder he has seen with his own eyes may well produce a bloodstained dagger he has snatched from the hands of the assassin and this dagger may sepal more eloquently than the witness himself. Proof which; is addressed directly to the senses is a most convincing and satisfactory class of proof.

I am aware of no rule of evidence which prevents a defendant who is endeavouring to shake the credit of a witness by proof of former inconsistent statements, from deposing that while he was engaged in conversation with the witness a taperecorder was in operation, or from Page 41 of 54 R/SCR.A/5012/2014 CAV JUDGMENT producing the said taperecorder in support of the assertion that a certain statement was made in his presence.

This proposition is fully supported by a number of American decisions in which the admissibility of evidence furnished by devices for electro telephonic communication has been fully considered. Evidence based on conversations on telephone is admissible provided the identity of the person with whom the witness spoke or the person whom he heard speak is satisfactorily established. 'Andrews v. United States', 105 Am. LR 322 (A).

The phonographic reproduction of sound is generally admissible in evidence upon the trial by showing the manner and the circumstances! under which it was secured, A person who objected to a rail road company laying its track upon a certain street was permitted to operate a phonograph in presence of the jury to produce sounds claimed to have been made by the operation of trains in proximity to his hotel.

The Supreme Court of Michigan held that there was no error in the admission of this testimony particularly as it was established that the instrument was a substantially accurate and trustworthy reproducer of sounds actually made. In, the course of his order Blair, J. observed as follows :

"Communications conducted through the medium of the telephone are held to be admissible, at least in cases where there is testimony that the voice was recognized ... ....... The ground for receiving the testimony of the phonograph would; seem to be stronger, since in its case there is not only proof by the human witness of the making of the sounds to be reproduced, but a reproduction by the mechanical witness of the sound^ themselves".

(Boyne City, G. and. A. R. Co. and v. Anderson', 117 Am SB 642 (B)) Similarly, testimony as to a conversation heard by the witness through a "detectophone" is' admissible; and where evidence obtained through1 a dictograph is received it is open to the State to produce the dictograph in evidence and to have the operator thereof explain the instrument and demonstrate the principles on which it operates. 'Brindley v. State', 193 Ala 43 (C); Annotated Cases 1916 E 177 (D).

The only English case to which my attention has been invited is that of 'Buxton v. Gumming', (1927) 71 Sol. Jo. 232 (E) in which Swift, J. is reported to have raised the question whether a dictaphone record has ever been accepted in evidence by the Courts and upon counsel replying that he did not think so said that he saw no reason why such a record as the one which the witness said he had made should not be put in evidence".

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41. The Supreme Court has also quoted with approval the decision of the Calcutta High Court in the case of Manindranath Sadhukhan (supra), I may quote relevant part of the same as under:

"If the plaintiff, while he is in the witness box, makes a statement which is at variance with a statement previously made by him, the plaintiff may be asked whether he made such previous statement and if he denies having made the previous statement, such previous statement may be proved by the defendant. There, as in this case, it is alleged that the previous statements of the plaintiff were recorded in a taperecorder, those statements may be admitted in evidence, if it is proved that they were made by the plaintiff and that the instruments accurately recorded those statements. The fact that the statements were recorded in a taperecorder and the recording was made behind the back and without the knowledge of the plaintiff is by itself no objection to the admissibility of the evidence. The plaintiff however also objected to the admissibility of the evidence on the ground that there were talks for compromise and that those talks were without prejudice and are not admissible evidence. The learned Judge overruled this objection also on the strength of the decision in Meajan Matador v. Alimuddin Mean, 20 C.W.N. 1217. In our opinion the learned Judge erroneously overruled this objection at this stage. This objection raises a mixed question of law and fact and must be decided at the hearing of the suit upon the evidence taken at the trial. It is premature to overrule this at this stage. The statements recorded in the taperecorder can be admitted in evidence only after proof that those statements were made by the plaintiff and were accurately recorded in the taperecorder and after the court is satisfied that there is no reason for excluding the evidence under sec.23 of the Indian Evidence Act. For the purpose of enabling the defendant to prove that the plaintiff made the statements recorded in the taperecorder the court has power to allow the defendant to prove and demonstrate the records at any stage of the trial."

42. I may also quote with profit the observations of the Supreme Court in the case of R.M. Malkani vs. State of Maharashtra, (1973) 1 SCC 471. The Court laid down the following propositions.

"(I) Tape recorded conversation is admissible provided first the conversation is relevant to the matters in issue; secondly, there is identification of the voice; and, thirdly, the accuracy of the tape recorded conversation is proved by eliminating the possibility of erasing the tape record. A contemporaneous tape record of a relevant conversation is a relevant fact and is admissible under Section 8 of the Evidence Act. It is res gestae. It is also comparable to a photograph of a relevant incident. The Page 43 of 54 R/SCR.A/5012/2014 CAV JUDGMENT tape recorded conversation is therefore a relevant fact and is admissible under Section 7 of the Evidence Act.

(II) Under Section 146 of the Evidence Act question might be put to the witness to test the veracity of the witness. Again under Section 153 of the Evidence Act a witness might be contradicted when he denied any question tending to impeach his impartiality. A previous statement placed by the tape recorded conversation can be used to contradict a witness. The tape itself become a primary and direct evidence of what witness has said and has been recorded.

(III) The substance of the offence under Section 25 of the Indian Telegraph Act is damaging, removing, tempering, touching machinery battery line or post for intercepting or acquainting oneself with the contents of any message. Where a person talking on the telephone allow another person to record it or to bear it, it cannot be said that the other person who is allowed to do so is damaging, removing, tampering, touching machinery battery line or post for intercepting or acquainting oneself with the contents of any message. There was no element of coercion or compulsion in attaching the tape recorder to the telephone. There was no violation of the Indian Telegraph Act.

(IV) There is warrant for proposition that even if evidence is illegally obtained it is admissible.

A document which is procured by improper or even by illegal means cannot bar its admissibility provided its relevance and genuineness are proved.

A tape recorded conversation is contemporaneous relevant evidence and therefore it is admissible. It is not tainted by coercion or unfairness. There is no reason to exclude this evidence.

If the conversation is voluntary and there is no compulsion, the attaching of the tape recording instrument though unknown to the person whose conversation is recorded does not render the evidence of conversation inadmissible. The conversation cannot be said to have been extracted under duress or compulsion. Tape recording a conversation is a mechanical contrivance to play the role of an eavesdropper.

(V) Article 21 of the Constitution contemplates procedure established by law with regard to deprivation of life for personal liberty. The telephonic conversation of an innocent citizen will be protected by Courts against wrongful or highhanded interference by tapping the conversation. The protection is not for the guilty citizen against the efforts of the police to vindicate the law and prevent corruption of public servants. At the time of the conversation there was no case against the appellant and he was not Page 44 of 54 R/SCR.A/5012/2014 CAV JUDGMENT compelled to speak or confess.

(VI) Although the Director of Intelligence Bureau advised and instructed doctor 'M' to talk to the accusedappellant and another doctor 'H' and the conversation was recorded on tape, such conversation cannot be said to be a statement made to the police officer.

(VII) In some cases the Courts allow the sentence undergone to be the sentence. That depends upon the fact as to what the term of the sentence is and what the period of sentence undergone is. The gravity of the offence and the position held by the accused at the relevant time are matters of consideration in awarding a sentence."

43. Thus, the C.D itself is a primary and direct evidence admissible as to what has been said and picked up by the recorder. A previous statement made by a witness and recorded on C.D can be used not only to corroborate the evidence given by the witness in the Court, but also to contradict the evidence given before the Court as well as to test the veracity of the witness and also to impeach his impartiality. Thus, apart from being used for corroboration, the evidence is admissible in respect to three other matters i.e. under Section 146(1) of the Evidence Act, which provides questions lawful in crossexamination. The said Section provides that when a witness is crossexamined, he may, in addition to the questions hereinbefore referred to, be asked any questions which tend to test his veracity. Section 153 provides exclusion of evidence to contradict answers to questions testing the veracity.

44. Sec. 153 and Exception 2 of Sec. 153 reads as under: "S. 153. When a witness has been asked and has answered any question which is relevant to the inquiry only in so far as it tends to shake his credit by injuring his character, no evidence shall be given to contradict him; but, if he answers falsely, he may afterwards be charged with giving false evidence.

Exception 1 If a witness is asked whether he has been previously convicted of any crime and denies it, evidence may be given of his previous conviction.

Exception 2 If a witness is asked any question tending to impeach his impartiality, and answers it by denying the facts suggested, he may be Page 45 of 54 R/SCR.A/5012/2014 CAV JUDGMENT contradicted."

45. Sec. 155 of the Evidence Act provides for impeaching the credit of the witness. Sec. 155 provides that the credit of a witness may be impeached in one of the ways as provided by the adverse party, or, with the consent of the Court, by the party who calls him, particularly subclause 3 which provides that by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted.

46. The weight to be given to such evidence is however distinct and separate from the question of its admissibility. Assuming for the moment that the trial Court admits some evidence contrary to the rules of evidence or the provisions of the Evidence Act by merely exhibiting the same or by merely admitting the same no final conclusion is drawn or decision is taken on such evidence. The prosecution is ultimately obliged to establish by cogent evidence as regards the genuineness of the CD, as to how the CD was prepared, by examining the person who prepared the CD and who authenticated the same as regards the true nature of the same. It is only after the prosecution discharges this obligation that the trial Court would be in a position to consider it as a piece of evidence.

47. In the aforesaid context, I may also refer to the provisions of S. 136 of the Evidence Act which provides that the Judge to decide as to the admissibility of evidence which reads as under: "S. 136. When either party proposes to give evidence of any fact, the Judge may ask the party proposing to give the evidence in what manner the alleged fact, if proved, would be relevant; and the Judge shall admit the evidence if he thinks that the fact, if proved, would be relevant, and not otherwise.

48. If the fact proposed to be proved is one of which evidence is admissible only upon proof of some other fact, such lastmentioned fact must be proved before evidence is given of the fact first mentioned, unless the party undertakes to give proof of such fact, and, the Court is satisfied with such undertaking.

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49. If the relevancy of one alleged fact depends upon another alleged fact being first proved, the Judge may, in his discretion, either permit evidence of the first fact to be given before the second fact is proved, or require evidence to be given of the second fact before evidence is given of the first fact."

50. Section 65A of the Evidence Act provides special provisions as to evidence relating to the electronic media and Section 65B provides admissibility of the electronic records. Section 65B reads as under: Sec. 65B. "Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein of which direct evidence would be admissible."

51. I may also quote with profit a decision of the Madhya Pradesh High Court in the case of Dilip Takhtani Vs. State of M.P, reported in 2011 Criminal Law Journal 2025. Paragraphs 6 to 11 read as under:

6. A bare perusal of the impugned order would reveal that learned trial Judge refused to allow the petitioner to confront the complainant with his video recorded statement primarily on the ground that the statement could not be treated as previous statement for the purpose of crossexamination under Section 145 of the Indian Evidence Act, 1872 (for brevity the 'Evidence Act'). To fortify this view, he also quoted the following observations without disclosing the source.

"Section 145 applies only to cases where the same person makes two contradictory statements either in different proceedings or in two different stages of a proceeding. If the maker of a statement is sought to be contradicted, his attention should be drawn to his previous statement under S. 145."

7. However, these observations were made by the Apex Court in Mohanlal Gangaram Gehani v. State of Maharashtra, AIR 1982 SC 839 :

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1982 Cri LJ 630 (2) while laying down the proposition that Section 145 of the Evidence Act is not attracted where statement made by a person or witness is sought to be contradicted not by his own statement but by the statement of another witness. Thus, the reliance on Mohanlal's case was apparently misplaced.

8. The tape, itself, is primary and direct evidence admissible as to what has been said and picked up by the recorder (N. Sri Rama Reddy v. V. V. Giri, AIR 1972 SC 1162. It is a document as defined in Section 3 of the Evidence Act and stands on no different footing than photograph (Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdass Mehra, AIR 1975 SC 1788). However, such evidence must be received with caution (Yusufalli Esmail Nagree v. State of Maharashtra, AIR 1968 SC 147. The conditions for admissibility of a tape recorded statement are "(1) The voice of the speaker must be duly identified by the maker of the record or by other who recognise his voice. In other words, it manifestly follows as a logical corollary that the first condition for the admissibility of such a statement is to identify the voice of the speaker. Where the voice has been denied by the maker it will require very strict proof to determine whether or not it was really the voice of the speaker.

(2) The accuracy of the tape recorded statement has to be proved by the maker of the record by satisfactory evidence direct or circumstantial.

(3) Every possibility of tampering with or erasure of a part of tape recorded statement must be ruled out otherwise it may render the said statement out of context and, therefore, inadmissible.

(4) The statement must be relevant according to the rules of Evidence Act.

(5) The recorded cassette must be carefully sealed and kept in safe or official custody.

(6) The voice of the speaker should be clearly audible and not lost or distorted by other sounds or disturbances."

(Ram Singh v. Col. Ram Singh, AIR 1986 SC 3).

9. It is relevant to note that in N. Sri Rama Reddy's case (supra), the following observations made by the House of Lords in R. v. Maqsud Ali (1965) 2 All ER 464 were quoted with approval "It would be wrong to deny to the law of evidence advantages to be gained by new techniques and new devices, provided the accuracy of the recording can be proved and the voices recorded are properly identified. Such evidence should always be regarded with some caution and assessed in the Page 48 of 54 R/SCR.A/5012/2014 CAV JUDGMENT light of all the circumstances of each case."

10. Accordingly, we are of the view that learned trial Judge committed a serious error of jurisdiction in declining the permission to confront the complainant, under Section 145 of the Evidence Act, with his tape recorded statement. However, it is needless to emphasize that the C.D. to be used for the purpose must fulfill the necessary requirements of being a primary evidence.

11. Consequently, the revision stands allowed and the impugned order dated 25112010 is hereby set aside. Instead, the permission is granted to impeach credit of the complainant with reference to his taperecorded statement subject to the provisions of the Evidence Act, particularly those contained in Chapter V thereof.

52. It is quite disturbing to note that after the applicant filed the two applications exhibit135 and 136, the prosecution, on its own, should have prayed before the trial court that for the limited purpose they may be permitted to carry out further investigation under section 173(8) of the Code. All that was necessary to be done was to record the statements of the two witnesses named in the application and collect the C.D. The investigating officer, thereafter, could have filed a supplementary report in that regard, a copy of which to be supplied to the accused.

However, instead of doing so, the State vehemently opposed the two applications before me. Be that as it may, I cannot remain silent to abdicate my duty so as to allow the justice to fail. We have travelled a very long distance from the days when the Court could not see a thing unless shown, or hear a sound unless made, by the parties or their witnesses before it and was to act as if it were a mere Judge in a combat of boxers or wrestlers or a competition of singers or musicians and only to declare as to who has performed the best. It is now firmly established that if the Court feels that certain evidence is available or can reasonably be made available and the same would be essential to a just decision of the case, whether in favour of the prosecution or the defence, the Court is not merely to fold its hands and to bang the prosecution or to hang the defence simply because they or any of them did not take reasonable steps to Page 49 of 54 R/SCR.A/5012/2014 CAV JUDGMENT bring such evidence on record. Neutrality, if it means, as it does, impartiality, is surely the first thing for a judicial decision. But neutrality, if it also means, as it does, nonaction, then such neutrality, in such circumstances as aforesaid, would amount to a failure to exercise a jurisdiction vested in a Court under Section 311 of the Code of Criminal Procedure, read with Section 165, Evidence Act, which two Sections, complementing each other, vest a Judge with the widest possible jurisdiction to take all steps to bring such record all such evidence as it would think to be essential for a just decision.

53. I could have allowed the applications directly without asking the investigating officer to undertake a limited further investigation but probably that might cause some prejudice to the accused because it would not be possible for the defence to ascertain what exactly the two witnesses named in the application would say. If the High Court reaches to the conclusion that the Investigating Officer has failed to collect the material evidence, the High Court is entitled to invoke its extraordinary jurisdiction under Article 226 of the Constitution, and a direction can be issued for further investigation. Even after filing of the chargesheet and taking into cognizance of the offence by the Magistrate, the Police is not precluded from conducting further investigation, if fresh facts come to the list which were not noticed at the time of investigation, or by mistake the same had been left out to be collected.

54. The object and reason for incorporating Section 173(8) Cr. P.C. is reflected in the 41st report of the Law Commission. Relevant portion is as follows : "A report under Section 173 is normally the end of the investigation. Sometimes, however, the police officer after submitting the report under Section 173 comes upon evidence bearing on the guilt or innocence of the accused. We should have thought that the police officer can collect that evidence and send it to the Magistrate concerned. It appears, however, that courts have sometimes taken the narrow view that once a final report under Section 173 has been sent, the police cannot touch the case again and cannot reopen the investigation. This view places a hindrance in the way of the investigating agency, which can be unfair to the prosecution and, for that matter, even to the accused. It should be made clear in Page 50 of 54 R/SCR.A/5012/2014 CAV JUDGMENT Section 173 that the competent police officer can examine such evidence and send a report to the Magistrate. Copies concerning the fresh material must of course be furnished to the accused."

55. The scope of further investigation by police under Section 173 (8), Cr. P.C. was considered by the Supreme Court in the decision reported in AIR 1979 SC 1791 : (1979 Cri LJ 1346) (Ram Lal Narang v. State (Delhi Admn.) and (Om. Prakash Narang v. State (Delhi Admn.) where it has been laid down : "As observed by us earlier, there was no provision in the Code of Criminal Procedure, 1898 which, expressly or by necessary implication, barred the right of the police to further investigate after cognizance of the case had been taken by the Magistrate. Neither Section 173 nor Section 190 lead us to hold that the power of the police to further investigate was exhausted by the Magistrate taking cognizance of the offence. Practice, convenience and preponderance of authority, permitted repeated investigations on discovery of fresh facts. In our view, notwithstanding that a Magistrate had taken cognizance of the offence upon a police report submitted under Section 173 of the 1898 Code, the right of the police to further investigate was not exhausted and the police could exercise such right as often as necessary when fresh information came to light. Where the police desired to make a further investigation, the police could express their regard and respect for the Court by seeking its formal permission to make further investigation." However, in paragraph 21 a guideline has been indicated for the investigating officer who intend to exercise power under Section 173 (8), Cr. P.C. It reads as follows : "Anyone acquainted with the daytoday working of the criminal courts will be alive to the practical necessity of the police possessing the power to make further investigation and submit a supplemental report. It is in the interests of both the prosecution and the defence that the police should have such power. It is easy to visualise a case where fresh material may come to light which would implicate persons not previously accused or absolve persons already accused. When it comes to the notice of the investigating agency that a person already accused of an offence has a good alibi, is it not the duty of that agency to investigate the genuineness of the plea of alibi and submit a report to the Magistrate ? After all the investigating agency has greater resources at its command than a private individual. Similarly, where the involvement of persons who are not already accused comes to the notice of the investigating agency, the investigating agency cannot keep quiet and refuse to investigate the fresh information. It is their duty to investigate and submit a report to the Magistrate upon the involvement of the other person. In either case, it is Page 51 of 54 R/SCR.A/5012/2014 CAV JUDGMENT for the Magistrate to decide upon his future course of action depending upon the stage at which the case is before him. If he has already taken cognizance of the offence, but has not proceeded with the enquiry or trial, he may direct the issue of process to persons freshly discovered to be involved and deal with all the accused, in a single enquiry or trial. If the case of which he has previously taken cognizance has already proceeded to some extent, he may take fresh cognizance of the offence disclosed against the newly involved accused and proceed with the case as a separate case. What action a Magistrate is to take in accordance with the provisions of the Code of Criminal Procedure in such situations is a matter best left to the discretion of the Magistrate. The criticism that is further investigation by the police would trench upon the proceedings before the Court is really not of very great substance, since whatever the police may do, the final discretion in regard to further action is with the Magistrate. That the final word is with the Magistrate is sufficient safeguard against any excessive use of abuse of the power of the police to make further investigation. We should not, however, be understood to say that the police should ignore the pendency of a proceeding before a Court and investigate every fresh fact that comes to light as if no cognizance had been taken by the Court of any offence. We think that in the interests of the independence of the Magistracy and the judiciary, in the interests of the purity of the administration of criminal justice and in the interests of the comity of the various agencies and instructions entrusted with different stages of such administration, it would ordinarily be desirable that the police should inform the Court and seek formal permission to make further investigation when fresh facts come to light."

56. The question of prejudice could be taken care of by adopting the appropriate procedure namely by directing the investigating officer to record under section 173(8) of the code, the statements of the two witnesses, namely, Shri Dilipbhai and (2) Shri Padmakantbhai Rameshbhai Trivedi having their place of work at 9th Floor, Sahjanand Complex, Opp: Swami Narayan Temple, Shahibaug, Ahmedabad. The Investigating Officer shall also collect the C.D and prepare a transcript of the same after ascertaining the genuineness of the same so as to rule out any possibility of tampering. This exercise should be completed within a period of two weeks from today and thereafter a supplementary report be filed in that regard, a copy of which shall be supplied to the accused. The trial court shall proceed thereafter to summon the two witnesses for their examination and resummon the first informant as prayed for.

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57. I am conscious of the fact that the trial is in progress and the exercise to be undertaken as directed would delay the trial, but that by itself should not come in the way when the evidence is necessary for the just decision of the case. The Supreme Court in the case of Sudevanand Vs. State, through CBI, reported in (2012) 3 SCC 387, ordered reexamination of an approver, after a period of twenty years. I may quote para 34 of the said decision.

"34. Mr. Dey contended that Vikram's statement that he is alleged to have made in jail has no legal sanctity and it came to be made and recorded in a manner completely unknown to law. Mr. Dey may be right but on that ground alone it would not be correct and proper to deny the application of Section 391 of the Cr.P.C. Take the case where, on the testimony of the Approver, a person is convicted by the trial court under Sections 302 and 120B etc. of the Penal Code and is sentenced to a life term. After the judgment and order passed by the trial court and while the convict's appeal is pending before the High Court, the 'Approver' is found blabbering and boasting among his friends that he was able to take the Court for a ride and settled his personal score with the convict by sending him to jail to rot at least for 14 years. Such a statement would also be completely beyond the legal framework but can it be said that in light of such a development the convicted accused may not ask the High Court for recalling the Approver for further examination."

58. Consequently, both the petitions are allowed and the impugned order dated 5th November, 2014 is ordered to be quashed. The trial court shall proceed further subject to the provisions of the evidence act, particularly, those contained in Chapter 5 thereof.

(J.B.PARDIWALA, J.) Mohandas After the judgment is pronounced, Mr. Amin, the learned advocate appearing on behalf of the accused prays for stay of the operation of this order for a period of two weeks to enable his client to approach the higher forum. This prayer is opposed by Mr. Bhatt, the learned advocate appearing on behalf Page 53 of 54 R/SCR.A/5012/2014 CAV JUDGMENT of the applicant.

Having regard to the facts and circumstances of the case, and the question of law decided by this Court, the order pronounced today, shall remain stayed from its operation for a period of two weeks.

(J.B.PARDIWALA, J.) Mohandas Page 54 of 54

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