Jammu & Kashmir High Court
Bal Krishan And Ors. vs State Of J&K; on 17 October, 2018
Author: Sanjay Kumar Gupta
Bench: Sanjay Kumar Gupta
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
CRMC No.267/2016
Date:-17.10.2018
Bal Krishan and ors. Vs. State of J&K
Coram:
Hon‟ble Mr. Justice Sanjay Kumar Gupta, Judge
Appearing counsel:
For Petitioner(s) : Mrs. Surinder Kour, Sr. Advocate with
Ms Priyanka Gupta, Advocate
For respondent (s) : Mr. C. M. Koul, Sr. AAG.
i) Whether to be reported in
Digest/Journal : Yes/No.
ii) Whether approved for reporting
in Press/Media : Yes/No.
1. Through the instant petition filed under Section 561-A of the Code of Criminal Procedure (hereinafter for short, Cr.P.C.) petitioners seek quashing of the orders dated 14.03.2011 and 21.10.2010 passed by the learned 1st Additional Sessions Judge, Jammu, by virtue of which Court below has re-examined Dr. Gafoor Ahmed in File No. 129/2006 in FIR No. 103/2002 for commission of offences under Sections 306/109 RPC, registered with Police Station, Akhnoor.
2. Learned counsel for the petitioners states that Court below has committed illegality in re-examining PW Dr. Gafoor Ahmed, because his statement had already been recorded by the Court below on 28.02.2008. It is stated that on 6th September, 2010, APP made a statement before the Court below that he wants to summon Dr. Gafoor Ahmed and Dr. C. S. Gupta and for this purpose he wants to file an application. The APP did not file any application, however the Court below on its own issued notice to Dr. Gafoor Ahmed and re-examined him on 14.03.2011.
CRMC No.267/2016 Page 1 of 103. The petitioners have challenged the orders dated 14.03.2011 and 21.10.2010 on the grounds that there is no provision under law by which Dr. Gafoor Ahmed can be re-examined.
4. I have considered the rival contentions of the learned counsel for the parties and also gone through the trial Court file.
5. From the perusal of order impugned, it is evident that prosecution has re-
examined the prosecution witness Dr. Gafoor Ahmed. In his statement Dr. Gafoor Ahmed stated that the dying declaration which was given by the deceased-Anita was attested by him, and further that the statement of deceased-Anita was recorded in the hospital on 13.06.2002 by the police in his presence. He has further stated that the said statement in file bears his signature and it has been attested by him. It has been exhibited as EXPW-GA.
6. Learned counsel for the petitioners submits that no application has been filed by the APP for recalling Dr. Gafoor Ahmed for re-examination. It is stated that the statement of Dr. Gafoor Ahmed was already recorded on 28.02.2008 and the said witness was cross-examined; his statement has been closed and there was no reason to recall Dr. Gafoor Ahmed and even if the prosecution wants to recall the said witness, an application under Section 540 Cr.P.C has to be filed to summon any witness for re- examination.
7. Section 540 Cr.P.C reads as under:-
"540. Power to summon material witness or examine person Present.-
Any Court, at any state of any inquiry, trial or other proceedings under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examined any person already examined, and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it essential to the just decision of the case."CRMC No.267/2016 Page 2 of 10
8. The role envisaged by the Criminal Procedure Code as also the Evidence Act that regulates production, relevancy and admissibility of evidence before the Trial Court, for a trial Judge is neither that of neutral umpire nor a silent spectator. The Trial Judge is not to detach himself from the proceedings, allow himself to be pushed to sidelines and watch the battle between the prosecution and the defence during the trial from the fence as a mere spectator. It is the duty of the trial Judge not only to see that the parties before it adhere to the rule book but also to ensure that the course of justice is not polluted by unscrupulous witnesses and either of the parties resorting to arm twisting and manipulative tactics. The trial Judge has to understand that he has to decide the matter, do justice to the justice seekers on the basis of evidence that is brought on the file during the course of the trial. It is at this stage when evidence is recorded, that the trial judge is to be vigilant and play pro-active role to ensure that what is brought on the file, is truth and nothing else. The trial Judge has to take all possible steps to ensure that the evidence is not falsified, truth is not kept back and neither of the parties is able to influence, intimidate or coerce the witnesses. A strong prosecution case may fail and justice elude the justice seekers and shocking and gruesome crimes go unpunished, if the trial court abdicates its nile and allows muscle power and money power to play its part in falsifying the evidence. It is not, for no purpose that Sections 154, 155 and Section 165 of the Evidence Act have been brought on the statute book almost a century back. Section 154 empowers the court to permit a person to put any question to the witness, summoned at his instance as may put to the witness in cross examination by the adverse party. The powers given u/s 154 of the trial Court are not ordinary powers. The power is unbridled so as to prompt the court to be unhesitant in granting permission to a party to cross examine his own witness, where such cross examination is necessary to elicit and extract truth from the witness. It needs no emphasis that a party cannot put a CRMC No.267/2016 Page 3 of 10 leading question to his witness but in terms of section 154 any such question (s) can be allowed to be put. The party in terms of Section 155 may with the consent of the court even take steps to impeach a witness called by such party. Section 165 of the Evidence Act arms the trial Judge with yet another wide and unbridled power. The trial Judge is empowered to ask any question, he may please, in any form, at any time of any witness, or of the parties about any fact relevant or irrelevant. It further provides that neither the parties nor their agents shall be entitled to make any objection to any such question or entitled to cross examine any witness upon any answer given in reply to any such question, except with the leave of the Court. Section 165 is again couched in wide terms so that the trial Judge is in a position to discourage, resist and defeat all effort to manipulate the evidence or withhold the truth.
Section 540 Cr.P.C. clothes the trial Court with power to summon any person as witness or examine any person in attendance, though not summoned as a witness, or recall or re-examine any person already examined. It proceeds to cast a duty on the trial Court to summon and examine or recall or re-examine any person, if his evidence appears to it essential to the just decision of the case.
9. The Supreme Court in Himanshu Singh Sabharwal Vs. State of M.P. reported as AIR 2008 Supreme Court 1943 while commenting upon the role of the Trial Judge has observed:-
"8...(In) a criminal a criminal case of the fate of the proceedings cannot always be left entirely in the hands of the parties, crimes being public wrongs in breach and violation of public rights and duties, which affect the whole community as a community and harmful to the society in general. The concept of fair trial entails familiar triangulation of interests of the accused, the victim and the society and it is the community that acts through the State and prosecuting agencies. Interests of society is not to be treated completely with disdain and as persona non grata.Courts have always been considered to have an over-riding duty to maintain public confidence in the administration of justice often referred to as the duty to vindicate and CRMC No.267/2016 Page 4 of 10 uphold the „majesty of the law.‟ Due administration of justice has always been viewed as a continuous process, not confined to determination of the particular case, protecting its ability to function as a Court of law in the future as in the case before it. If a criminal Court is to be an effective instrument in dispensing justice, the Presiding Judge must cease to be a spectator and a mere recording machine by becoming a participant in the trial evincing intelligence, active interest and elicit all relevant materials necessary for reaching the correct conclusion, to find out the truth, and administer justice with fairness and impartiality both to the parties and to the community it serves. Courts administering criminal justice cannot turn a blind eye to vexatious or oppressive conduct that has occurred in relation to proceedings, even if a fair trial is still possible, except at the risk of undermining the fair name and standing of the judges as impartial and independent adjudicators.
9. The principles of rule of law and due process are closely linked with human rights protection. Such rights can be protected effectively when a citizen has recourse to the Courts of law. It has to be unmistakably understood that a trial which is primarily aimed at ascertaining truth has to be fair to all concerned. There can be no analytical, all comprehensive or exhaustive definition on the concept of a fair trial, and it may have to be determined in seemingly infinite variety of actual situations with the ultimate object in mind viz. Whether something that was done or said either before or at the trial deprived the quality of fairness to a degree where a miscarriage of justice has resulted. It will not be correct to say that is only the accused who must be fairly deal with. That would be turning Nelson‟s eyes to the needs of the society at large and the victims or their family members and relatives. Each one has an inbuilt right to be deal with fairly in a criminal trial. Denial of a fair trial is as much injustice to the accused as it is to the victim and the society. Fair trial obviously would mean a trial before an impartial Judge, a fair prosecutor and atmosphere of judicial calm. Fair trial means a trial in which bias or prejudice for or against the accused, the witnesses or the cause which is being tried is eliminated. If the witnesses get threatened or are forced to give false evidence that also would not result in a fair trial. The failure to hear material witnesses is certainly denial of fair trial."
The Supreme Court has further observed:
"The courts have to take 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 a playing an active role in the evidence collecting process. They have to monitor the proceedings in aid of justice in a manner that something, which is not unnecessarily brought into record. Even, if the prosecutor is remiss in some ways, it can control the proceedings effectively so that 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 CRMC No.267/2016 Page 5 of 10 acting in the requisite manner. The court cannot afford to be wishfully or pretend to be blissfully ignorant or oblivious to such serious pit falls 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."
10. In the present case, petitioners are facing trial in offences under section 306/109 RPC on account of death of one Anita Devi w/o Shamsher Singh (petitioner no.2 herein),who had consumed poison on 12.6.2002 and her dying declaration was recorded on 13.6.2002 in presence of PW Dr. Gafoor Ahmed in SDH Akhnoor. During trial the statement of Dr. Gafoorwas recorded on 28.02.2008, but dying declaration was not put to Doctor, so on 06.09.2010 APP stated that he wants to file application for re examination of PW Dr. Gafoor Ahmed; it appears that on next date on 21.10.2010 Court issued notice to PW. Gafoor Ahmed, without any application filed by APP; on 14.3.2011, Doctor Gafoor appeared and was examined in presence of counsel for accused. Doctor admitted the contents of dying declaration of deceased. Thereafter prosecution witnesses were completed and even statements of accused under section 342 Cr.P.C have been recorded. It further appears that petitioners/accused also filed an application under section 540 Cr.P.C. for recalling of PW Dr. Gafoor Ahmed on 02.04.2016; simultaneously on 30.5.2016 present petition was filed before this court; on 2.6.2016 this court issued notice and called for the record with direction that the same shall be sent back after its perusal; it further appears that record was received, but was sent back as per order; again on 30.11.2017 record was called which is still lying in file. Counsel for accused on 09.05.2017 withdrew the application filed under section 540 Cr.P.C. for recalling of PW Gafoor Ahmed.
11. The ground taken that there is no provision in law to re-call the prosecution witness again, is not tenable. Because while analyzing the CRMC No.267/2016 Page 6 of 10 provision of 540 Cr.P.C., it is evident that the second part of the Section uses the word 'shall'. It says that the Court shall summon and examine or recall or re-examine any such person, if his evidence appears to it to be essential to the just decision of the case. The words 'essential to the just decision of the case' are the key words. The Court must form an opinion that for the just decision of the case recall or re-examination of the witness is necessary. Since the power is wide it's exercise has to be done with circumspection. The object by Criminal trial is to be arriving at the truth and not merely to record the statements of witnesses in a mechanical manner. The Court in order to arrive at the truth has to give to itself a participatory role. In this direction the tools in the hand of the Court are the provisional like S. 165 of the Evidence Act and S. 540 Cr.P.C.
12. From the aforesaid discussion, it is clear that the Courts not only have the power to recall and re-examine the witnesses which appears to it necessary for the just decision of the case, but it is also the bounden duty of the Court to do so in appropriate case. It is not essential for filing application by either prosecution or defense. Court on its own motion can recall the witness, which he finds essential for just decision of case.There appears to be circumstances warranting the exercise of extra-ordinary power of recalling and re-examining PW Dr. Gafoor Ahmed.
13. The Apex Court in MannanSk& Ors vs State Of West Bengal & Anr on 3 July, 2014 in CRIMINAL APPEAL NO.1307 OF 2014 [Arising out of Special Leave Petition (Crl.) No.8395 of 2012] decided on 3/7/2014, it is held as under:-
"7. Being aggrieved by this order the complainant filed an application under Section 401 read with Section 482 of the Code in the High Court. The High Court reversed the trial court‟s order. The High Court observed that non-exhibiting of the statement of deceased RupchandSk was mistake of the prosecution and no advantage can flow from the said CRMC No.267/2016 Page 7 of 10 mistake to the accused. The High Court further observed that existence of the statement was known to the accused and, hence, no prejudice would be caused to them. The said order is challenged in this appeal by the appellants-accused.
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10. The aim of every court is to discover truth. Section 311 of the Code is one of many such provisions of which strengthen the arms of a court in its effort to ferret out the truth by procedure sanctioned by law. It is couched in very wide terms. It empowers the court at any stage of any inquiry, trial or other proceedings under the Code to summon any person as a witness or examine any person in attendance, though not summoned as witness or recall and re-examine already examined witness. The second part of the Section uses the word „shall‟. It says that the court shall summon and examine or recall or re-examine any such person if his evidence appears to it to be essential to the just decision of the case. The words „essential to the just decision of the case‟ are the key words. The court must form an opinion that for the just decision of the case recall or re- examination of the witness is necessary. Since the power is wide it‟s exercise has to be done with circumspection. It is trite that wider the power greater is the responsibility on the courts which exercise it. The exercise of this power cannot be untrammeled and arbitrary but must be only guided by the object of arriving at a just decision of the case. It should not cause prejudice to the accused. It should not permit the prosecution to fill-up the lacuna. Whether recall of a witness is for filling-up of a lacuna or it is for just decision of a case depends on facts and circumstances of each case. In all cases it is likely to be argued that the prosecution is trying to fill-up a lacuna because the line of demarcation is thin. It is for the court to consider all the circumstances and decide whether the prayer for recall is genuine.
11. Rather than referring to all the judgments which are cited before us, we would concentrate on MohanlalSoni which takes into consideration relevant judgments on the scope of Section 311 and lays down the principles. MohanlalSoni is followed in all subsequent judgments. In MohanlalSoni this Court was considered the scope of Section 540 of the Code of Criminal Procedure, 1898 ( the old code) which is similar to Section 311 of the Code. This Court observed that it is a cardinal rule in the law of evidence that the best available evidence should be brought before the court to prove a fact or the points in issue. The relevant observations of this Court are as under:
"... ... ...In order to enable the court to find out the truth and render a just decision, the salutary provisions of Section 540 of the Code (Section 311 of the new Code) are enacted where under any court by exercising its discretionary authority at any stage of enquiry, trial or other proceeding can summon any person as a witness or examine any person in attendance though not summoned as a witness or recall or re-examine any person in attendance though not summoned as a witness or recall CRMC No.267/2016 Page 8 of 10 and re-examine any person already examined who are expected to be able to throw light upon the matter in dispute; because if judgments happen to be rendered on inchoate, inconclusive and speculative presentation of facts, the ends of justice would be defeated." This Court further observed as under:
"... ... ... Though Section 540 (Section 311 of the new Code) is, in the widest possible terms and calls for no limitation, either with regard to the stage at which the powers of the court should be exercised, or with regard to the manner in which they should be exercised, that power is circumscribed by the principle that underlines Section 540, namely, evidence to be obtained should appear to the court essential to a just decision of the case by getting at the truth by all lawful means. Therefore, it should be borne in mind that the aid of the section should be invoked only with the object of discovering relevant facts or obtaining proper proof of such facts for a just decision of the case and it must be used judicially and not capriciously or arbitrarily because any improper or capricious exercise of the power may lead to undesirable results. Further it is incumbent that due care should be taken by the court while exercising the power under this section and it should not be used for filling up the lacuna left by the prosecution or by the defence or to the disadvantage of the accused or to cause serious prejudice to the defence of the accused or to give an unfair advantage to the rival side and further the additional evidence should not be received as a disguise for a retrial or to change the nature of the case against either of the parties."
12. While dealing with Section 311 of the Code in Rajendra Prasad this Court explained what is lacuna in the prosecution as under:
"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."
13. Reference must also be made to the observations of this Court in ZahiraHabibulla H. Sheikh and anr. v. State of Gujarat and ors[9] where this Court described the scope of Section 311 of the Code as under:
"Object of the Section is to enable the court to arrive at the truth irrespective of the fact that the prosecution or the defence has failed to produce some evidence which is necessary for a just and proper disposal of the case. The power is exercised and the evidence is examined neither to help the prosecution nor the defence, if the court feels that there is necessity to act in terms of Section 311 but only to sub serve the cause of CRMC No.267/2016 Page 9 of 10 justice and public interest. It is done with an object of getting the evidence in aid of a just decision and to uphold the truth."
14. In present case as already held inadvertently, the alleged dying declaration of deceased Anita Devi recorded in presence of PW Dr. Gafoor Ahmed was not brought into the knowledge of this witness. The said statement, therefore, became very vital to the prosecution. Undoubtedly, therefore, it is an essential material to the just decision of the case. Another argument of counsel for petitioners that prosecution has not filed any application for recalling the witness, but Court below on its own issued notice and examined the witness, is also not tenable. Because procedural laws are handmade tools meant for administration of justice and not to thwart the justice. Further as already held, even if no application was made by prosecution, Court has ample power to recall the witness already examined in terms of second part of section 540 Cr.P.C.
15. In view of what has been discussed above, this petition is dismissed.
Trial Court file be sent back forthwith. Trial Court is requested to decide the case preferably within three months.
Jammu ( Sanjay Kumar Gupta )
17.10.2018 Judge
Narinder
CRMC No.267/2016 Page 10 of 10