Gujarat High Court
Hasubhai Jivrajbhai Beladia vs State Of Gujarat on 27 April, 2015
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
R/SCR.A/2583/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 2583 of 2015
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HASUBHAI JIVRAJBHAI BELADIA....Applicant(s)
Versus
STATE OF GUJARAT....Respondent(s)
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Appearance:
MR PRAVIN GONDALIYA, ADVOCATE for the Applicant(s) No. 1
MR NJ SHAH, APP for the RESPONDENT(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 27/04/2015
ORAL ORDER
By this application under Article 227 of the Constitution of India, the applicant - original accused calls in question the legality and validity of the order dated 24th March 2015 passed by the learned Sessions Judge, Surat, below Exh.187 in Sessions Case No.216 of 2009, by which the learned Judge allowed the application Exh.187 filed by the Public Prosecutor under Section 311 of the Code of Criminal Procedure for summoning the four witnesses.
It appears from the materials on record that the applicant herein is facing trial for the offence of murder. The trial has reached to the stage of arguments. I am told that written arguments have also been filed by both the sides. It is at that stage that the Public Prosecutor moved an application Exh.187 Page 1 of 12 R/SCR.A/2583/2015 ORDER before the trial Court and prayed for summoning the witnesses named in the application for the purpose of proving the call data record. It appears that in the evidence of the PW-47 Shri V.B.Patel, the Investigating Officer (Exh.173), there is a reference of the documents regarding the call details. However, no exhibit was given to such call details. For a limited purpose, to prove such call details through appropriate officers of the company, the application came to be filed under Section 311 of the Code, which has been allowed by the trial Court.
While asserting the legality and validity of the impugned order, Mr.Gondaliya submitted that at the fag end of the trial the prosecution should not be permitted to fill in the lacuna left behind. According to Mr.Gondaliya, his client has already disclosed his defence and now at this stage the prosecution should not be permitted to summon additional witnesses.
In my view, the point raised in this application is squarely covered by a decision of this Court in the case of Rambhai Hirabhai Vadhiya v. State of Gujarat (Special Criminal Application No.4902 of 2014 decided on 1st December 2014). In the said judgment, this Court has explained in detail the scope of Section 311 of the Code. This Court has also explained what amounts to filling in of the lacuna and permitting any mistake to be rectified. I may quote the relevant paragraphs of the said judgment as under :
"21. If the prosecutor after the closure of his evidence finds that for one reason or the other, which of course is required to be persuasive, some witnesses, who were necessary for his case, could not be cited, or if cited could not be examined or some documents could not be Page 2 of 12 R/SCR.A/2583/2015 ORDER tendered or exhibited in evidence, he has two options open before him. One is to ask the Court for permission to lead additional evidence or request it to exercise its right under Section 311 of Criminal P.C., 1973. His choice on the first option is very limited and, except in exceptional cases, may not meet the approval of the Court. He can always crave to convince the Court for proceeding under Section 311 of the Code.
22. The discretion is required to be exercised by the Court keeping in view the just decision of the case unmindful of the fact whether any party before it gains or loses from the exercise of such discretion under this Section. There is no doubt that the object of the section is not to enable anyone or the other party to fill up the gaps of its case. The section is not to be used to enable the prosecution either to improve its version at a later stage or enable it to repair the lacunae. The sole criterion in such a case should be whether the exercise of power under this section is necessary in the interest of justice. While exercising this discretion the Court has to keep in its mind the well known principle of law that the order should not operate as a rebuttal of the case set up by the defence after the prosecution case is closed. The use of this section cannot be limited only to something arising ex-improviso which no human agency could see.
23. I may quote with profit a King's Bench Division in the case of The King v. Dora Harris reported in 1927 (2) K.B. 587. The Court observed as under:-
A Judge at a criminal trial has the right to call a witness not called by either the prosecution or the defence, without the consent of either the prosecution or the defence, if in his opinion that course is necessary in the interests of justice, but in order that injustice should not be done to an accused person, a Judge should not call a witness in a criminal trial after the case for the defence is closed, except in a case where a matter arises ex improviso, which no human ingenuity can foresee, on the part of the prisoner Rule laid down by Tindal C.J. in Reg. v. Frost (1839) 4 St. Tr. (N.S.)86, 386; 9 C. & P. 129, 159 applied.Page 3 of 12
R/SCR.A/2583/2015 ORDER
24. The question, therefore, is whether or not after the entire evidence of the prosecution or the defence is over, the Court should permit further evidence to be allowed, will depend upon the facts of each case. It cannot be laid down as a general rule that in no case can additional witnesses be called by the Judge at the suggestion of the prosecution, before the close of the trial of the case, where the defence has been closed or arguments have been heard. The trial comes to an end with the pronouncement of the judgment, though judgment itself may not be a part of the trial. The mere fact that the additional evidence is permitted to be taken after the entire prosecution case is over is not in itself in excess of the powers of the Court.
25. I may quote with profit a decision of the Supreme Court in the case of Jamatraj Kewalji Govani V. State of Maharashtra reported in 1968 Cri. L.J. 231. In Jamatraj Kewalji (Supra), the Supreme Court with reference to Section 540 of the old code observed:-
"As the Section stands there is no limitation on the power of the Court arising from the stage to which the trial may have reached, provided the Court is bona fide of the opinion that for the just decision of the case, the step must be taken. It is clear that the requirement of just decision of the case does not limit the action to something in the interest of the accused only. The action may equally benefit the prosecution. There are, however, two aspects of the matter which must be distinctly kept apart. The first is that the prosecution cannot be allowed to rebut the defence evidence unless the prisoner brings forward something suddenly and unexpectedly."
It was further observed :-
"There is, however, the other aspect namely, of the power of the Court which is to be exercised to reach a just decision. This power is exercisable at any time and the Code of Criminal Procedure clearly so states."Page 4 of 12
R/SCR.A/2583/2015 ORDER
26. It is, therefore, imperative that before using his powers, the Judge has to take into account the circumstances of the case of examining witnesses after the entire case is closed and that should not cause injustice to the accused. To a certain extent I do agree with Mr. Buch, the learned advocate appearing on behalf of the accused as a proposition of law that it should not operate to demolish the case laid by the accused if he has done so in his defence. No hard and fast rules can be prescribed as to when and at what stage this discretion should be exercised. The anxiety for justice is paramount and should be kept in view. The Court should be unmindful of the fact of the use of the discretion in favour or against any party. The principle that such evidence should not demolish the case set up by the accused in his defence, if he has done so should be present to the mind of the judge at the time when he takes a decision. The Court under Section 311 is to help neither the prosecution nor the accused.
27. In the present case, it is not in dispute that after the arrest of the accused and while drawing the arrest Panchnama, the Investigating Officer had noticed few injuries on the body of the accused. In such circumstances, the Investigating Officer thought fit to subject the accused to Medical Examination through the Medical Officer. Dr. Javia had carried out the Medical Examination and had prepared the medical papers in that regard. It appears that the prosecution wants to bring on record such fact through Dr. Javia so that the medical papers could be exhibited. The learned Judge himself has stated in the impugned order that the fact that the accused was subjected to Medical Examination is borne out from the Postmortem Report Exhibit 10 itself. With a view to seek further clarity in that regard, the Medical Officer, Dr. Javia is now sought to be examined for the limited purpose of bringing on record the relevant medical papers as regards the injuries which were noticed on the body of the accused. In such circumstances, could it be said that the prosecution is trying to fill up a lacuna left behind much to the prejudice of the defence. In my view the answer has to be in the negative.
28. The judgment of the Supreme Court in the case of Mohanlal Shamji Soni (Supra) on which strong reliance Page 5 of 12 R/SCR.A/2583/2015 ORDER has been placed by Mr. Buch, has been considered and dealt with by the Supreme Court in the Case of U.T. Of Dadra and Haveli (Supra) in paragraph No.11. The Court observed as under:-
In Mohanlal Shamji Soni v. Union of India and Anr., AIR 1991 SC 1346, it was observed that it is a cardinal rule in the law of evidence that the best available evidence should be brought before the Court to prove a fact or the points in issue. But it is left either for the prosecution or for the defence to establish its respective case by adducing the best available evidence and the Court is not empowered under the provisions of the Code to compel either the prosecution or the defence to examine any particular witness or witnesses on their sides. It is the duty of Court not only to do justice but also to ensure that justice is being done. It was further held that the second part of the Section does not allow for any discretion but it binds and compels the Court to take any of the aforementioned two steps if the fresh evidence to be obtained is essential to the just decision of the case. It was emphasized that power is circumscribed by the principle that underlines Section 311, Cr.P.C., namely, evidence to be obtained should appear to the court essential to a just decision of the case by getting at the truth by all lawful means. Further, that the power must be used judicially and not capriciously or arbitrarily. It was further observed that evidence should not be received as a disguise for a retrial or to change the nature of the case against either of the parties and the discretion of the Court must obviously be dictated by exigency of the situation and fair play and good sense appear to be the safe guides and that only the requirement of justice command the examination of any person which would depend on the facts and circumstances of each case. Rajendra Prasad v. Narcotic Cell (1999) 6 SCC 110, is a decision where the contention that the prosecution should not be permitted to fill in lacuna was examined Page 6 of 12 R/SCR.A/2583/2015 ORDER having regard to the peculiar facts where the exercise of power under Section 311, Cr.P.C.
second time was challenged and, therefore, it is necessary to notice the facts of the case in brief. The accused along with some other persons was facing trial for offences under Sections 21, 25 and 29 of the NDPS Act. The prosecution and the defence closed their evidence on 19.9.1997 and the case was posted for further steps and on 7.3.1998, after few more dates, at the instance of the prosecution two witnesses who had already been examined were re-examined for the purpose of proving certain documents for prosecution. After they had been examined and the evidence had been closed, the case was posted for hearing arguments, which was heard in piecemeal on different dates.
Subsequently on 7.6.1998, the Public Prosecutor moved an application seeking permission to examine Dalip Singh, S.I. and two other persons. Though the application was strongly opposed by the counsel for the accused, the trial Court allowed the same in exercise of its power under Section 311, Cr.P.C. and summons were issued to the witnesses. The challenge raised to the order of the learned Sessions Judge by filing a revision was dismissed by the High Court. In appeal before this Court it was contended that in the garb of exercise of power under Section 311, Cr.P.C., a Court cannot allow the prosecution to re-examine prosecution witnesses in order to fill up lacuna in the case specially having regard to the fact that Dalip Singh witness was never tendered by the prosecution for cross- examination and PW.4 Suresh Chand Sharma had also not been cross-examined by the State. Repelling the contention raised on behalf of the accused it was held :
"7. It is a common experience in criminal courts that defence counsel would raise objections whenever courts exercise powers under Section 311 of the Code or under Section 165 of the Evidence Act, 1872 by Page 7 of 12 R/SCR.A/2583/2015 ORDER saying that the court could not "fill the lacuna in the prosecution case". 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. The adage "to err is human" is the recognition of the possibility of making mistakes to which humans are prone. A corollary of any such laches or mistakes during the conducting of a case cannot be understood as a lacuna which a court cannot fill up.
29. In my opinion, the decision of Mohanlal Shamji Soni (Supra) is of no avail to the accused in any manner while challenging the impugned order. The Supreme Court has observed in the decision of Mohanlal Shamji Soni (Supra) that due care should be taken by the court while exercising the power under Section 311 of the code and it should not be used for filling up the lacuna left by the prosecution or by the defence. In my view it cannot be said that the prosecution is trying to fill up any lacuna.
30. I may quote with profit very apt observations of the Supreme Court in this regard. The Supreme Court in U.T. Of Dadra and Haveli (Supra) has observed that:-
8. Lacuna in the prosecution must be understood as the inherent weakness or a latent wedge in the matrix of the prosecution case. The advantage of it should normally go to the accused in the trial of the case, but an oversight in the management of the prosecution cannot be treated as irreparable lacuna. No party in a trial can be foreclosed from correcting errors. 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. After all, function of the criminal court is administration of criminal justice and not to count errors committed by the parties or to find out and declare who among the parties performed better."Page 8 of 12
R/SCR.A/2583/2015 ORDER Even if it amounts to filling of loopholes the same is just a subsidiary factor as observed by the Supreme Court in Iddar (Supra).
31. I may quote with profit a decision of the Supreme Court in the case of Rajendra Prasad Vs. Narcotic Cell, Delhi reported in AIR 1999 Criminal Law Journal 3529, wherein the Supreme Court made the following observations in paragraph Nos. 6 and 7.
6. It is a common experience in criminal Courts that defence counsel would raise objections whenever Courts exercise powers under Section 311 of the Code or under Section 165 of the Evidence Act by saying that the Court could not 'fill the lacuna in the prosecution case.'A lacuna in 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. The adage 'to err is human' is the recognition of the possibility of making mistakes to which humans are proned. A corollary of any such laches or mistakes during the conducting of a case cannot be understood as the lacuna which a Court cannot fill up.
7.Lacuna in the prosecution must be understood as the inherent weakness or a latent wedge in the matrix of the prosecution case. The advantage of it should normally go to the accused in the trial of the case, but an over sight in the management of the prosecution cannot be treated as irreparable lacuna. No party in a trial can be foreclosed from correcting, errors. 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. After all, function of the criminal Court is administration of criminal justice and not to Page 9 of 12 R/SCR.A/2583/2015 ORDER count errors committed by the parties or to find out and declare who among the parties performed better.
32.I may quote one more decision of the Supreme Court in the case of Raj Deo Sharma Vs. State of Bihar reported in 1999 Criminal Law Journal 4541, Wherein the Supreme Court made the following observations in paragraph no.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 Seven-Judge Bench in A. R. Antulay's case, 1992 AIR SCW 1872 : AIR 1992 SC 1701 :
(1992 Cri LJ 2717) nor in Kartar Singh's 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 re-examine any such person.
33. In my view the observations made by the Supreme Court referred to above, is a direct answer to the main submission of Mr. Buch, the learned advocate appearing on behalf of the accused.
34. The decision of the Supreme Court in the case of Rajesh Talwar (Supra) is also of no avail to the accused.
In the said case during the trial proceedings of the well- known Aarushi Talwar murder case, where the parents were being tried for the murder of their daughter, the accused parents had moved an application under Section 233 read with Section 91 of the Criminal Procedure Code, 1973, for production of the reports of concerned scientific tests (i.e. narco-analysis test, brain-mapping test, polygraph test, etc.)conducted on three persons Page 10 of 12 R/SCR.A/2583/2015 ORDER who at one time were suspected accused in the said case and had been in police custody. It was submitted that the said reports were essential for the defence as they contained exculpatory statements favouring the present accused and it was only upon examination of the said reports by the trial Court that the accused would be able to put up their plea that the crime, in fact, might have been committed by the said three persons. On getting no relief from the trial court, the accused approached the High Court. The High Court rejected the said prayer on the ground that the said application was vexatious and intended to delay the proceedings. Aggrieved thereby, the accused had preferred the present Special Leave Petition. The Supreme Court dismissed the Special Leave Petition observing as under:
9 After considering the rival submissions on this point, we find no merit in the contention on behalf of the petitioners that they could not have approached this Court earlier. There is no reason why the petitioners ought to have waited from 19.7.2013 to 17.9.2013 to approach this Court and allowed the trial to proceed even further. We make this observation in the background of the observation of the High Court that even the initial applications were made at a stage where the prosecution evidence had been concluded and the defence had entered and almost concluded its evidence. In fact, the petitioners had, without raising any objection that the reports and documents allegedly proved by the witnesses have not been supplied to them or made part of the Court record, participated in the examination and cross-examination of two witnesses. We might note that criminal courts are not obliged to accede to the request made by any party to entertain and allow application for additional evidence and in fact, are bound in terms of Section 233(3) Cr.PC. to refuse such request if it appears that they are made in order to vex the proceedings or delay the same. It is also pertinent to mention here that the learned Trial Judge who has been conducting the trial is likely to retire very soon."Page 11 of 12
R/SCR.A/2583/2015 ORDER For the foregoing reasons, I am not inclined to interfere with the impugned order in exercise of my supervisory jurisdiction under Article 227 of the Constitution of India.
This application fails and is hereby rejected.
(J.B.PARDIWALA, J.) MOIN Page 12 of 12