Patna High Court
Keshav Choudhary And Ors. vs State Of Bihar on 21 January, 2000
Equivalent citations: 2000CRILJ3705
ORDER Indu Prabha Singh, J.
1. This application under Sections 397 and 401 of the Code of Criminal Procedure, 1973 (in short the 'Code') is directed against an order dated 28-8-1995 passed by the 5th Additional Sessions Judge, Samastipur in S.T. No. 151 of 1991 by which the learned Court below allowed a petition filed by the prosecution under Section 311 of the Code and re-opened the entire prosecution case.
2. It appears that on the Fardbeyan of one Ram Ekbal Choudhary the police drew up a formal FIR and registered Kalyanpur P.S. Case No. 123/90 for the offence under Sections 341, 323, 379/34 of the Indian Penal Code. The charge dated 15-6-1993 under Sections 341, 323, 325, 379 and 307/34 of the Indian Penal Code was submitted. After following the necessary commitment enquiry the case went to the Court of the learned 5th Additional Sessions Judge, Samastipur for holding the trial. Further case of the petitioner is that no prosecution witnesses could be produced before the trial Court though various dates such as 24-6-1993, 25-6-1993, 26-6-1993 and 28-6-1993 were fixed in it. The learned Court below also issued bailable and non-bailable warrants of arrest against the witnesses through the Superintendent of Police, Samastipur by his order dated 3-2-1994 but in spite of that no prosecution witnesses turned up after a lapse of more than two years of the no-opening of the case as a result of which the prosecution case was closed by an order dated 31-5-1995 by the trial Court and the statement of the accused persons under Section 313 of the Code was recorded. The case was adjourned to 6-6-1995 for defence, if any, and argument.
3. On this date the Hajiri of one witness by the learned Additional Public Prosecutor was filed with a petition to which a rejoinder petition was filed on behalf of the defence. However, the learned trial Court by the impugned order re-opened the case of the prosecution under Section 311 of the Code and directed the Additional Public Prosecutor to produce his witnesses. Section 311 of the Code does not confer any such power on the trial Court to re-open the entire prosecution case. Since the trial Court had closed the prosecution case he cannot re-open the same which will amount to reviewing his earlier order dated 31-5-1995. The recourse to Section 311 cannot be taken by the learned Additional Sessions Judge under the facts and circumstances of the case. Hence it has been contended that the impugned order be quashed.
4. The parties have been heard at. length. The impugned order is said to have been passed under Section 311 of the Code which runs as follows :
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 re-examine 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 to be essential to the just decision of the case.
5. A perusal of this section clearly shows that it gives wide powers to the Court to examine, re-call or re-examine any person whose evidence appears to the Court to be essential for the just decision of the case. This section confers a wide discretion on the Court to act as the exigencies of the justice required. As this 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 of the opinion that for the just decision of the case this step may be taken as has been held in the case of Jamatraj Kewalji Govrani v. State of Maharashtra AIR 1968 SC 178 : 1968 Cri LJ 231. The object of this section is 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 the just decision of the case. The true scope of Section 311 of the Code has been laid down in the case of Mohanlal Shamji Soni v. Union of India 1991 Cri LJ 1521 : AIR 1991 SC 1346 (SC) (at page 1524 of Cri LJ) :
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 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 a Court not only to do justice but also to ensure that justice is being done. In order to enable the Court to find out the truth and render a just decision, the salutary provisions 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. The very usage of the words such as "any Court", 'at any stage or 'of any enquiry', trial or other proceedings', 'any person' and 'any such person' clearly spell out that this section is expressed in the widest possible terms and do not limit the discretion of the Court in any way. However, the very width requires a corresponding caution that the discretionary power should be involved as the exigencies of justice require and exercised judicially with circumspection and consistently within the provision of the Code. The second part of the section does not allow for any discretion by 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....
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 would 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. It is therefore clear that the Criminal Court has ample power to summon any person as a witness or recall and re-examine any such person even if the evidence on both sides is closed and the jurisdiction of the Court must obviously be dictated by exigency of the situation, and fair-play and good sense appear to be the only safe guides and that only the requirements of justice command the examination of any person which would depend on the facts and circumstances of each case.
6. It, thus, becomes clear that this provision under Section 311 of the Code has been made for the just decision of the case. A just decision in a case will mean just decision both from the point of view of the prosecution as well as the accused. Section 311 of the Code does not give a long rope to the prosecution to make it a tool for the harassment of the accused to be used or abused in any manner that they like. In the present case it, however, appears that the charge sheet in this case was submitted on 15-6-1993 and thereafter 24-6-1993, 25-6-1993, 26-6-1993 and 28-6-1993 were the dates fixed for the examination of the witnesses. In spite of so many dates not a single witness turned up. By the orders dated 3-2-1994, 11-1-1995 and 7-3-1995 bailable as also non-bailable warrants of arrest were issued against the witnesses. The warrants of arrest were issued through the Superintendent of Police, Samastipur but in spite of these attempts made by the Court not a single witness turned up for his examination for more than two years. From the impugned order it appears that lastly only a formal witness was examined to prove the FIR (Ext. 1). When in spite of non-bailable warrants of arrest not, a single witness could be produced before the learned trial Court it was left with no alternative but to close the case of the prosecution on 31-5-1995 and it proceeded to record the statements of the accused persons under Section 313 of the Code. Under the aforesaid circumstances it is clear that the action of the prosecution as also of the police machinery can be said to be highly negligent and the prosecution singularly failed to produce any witness in spite of the non-bailable warrants of arrest issued against them. Under the aforesaid circumstances I do not think that the provision of Section 311 of the Code could be attracted. It is not one of those cases in which some important witnesses on the question of fact could not be examined for any reason whatsoever. In the present case except for a formal witnesses not a single witness could be examined. It is only after the examination of the accused under Section 313 of the Code that the prosecution has come forward with a prayer to examine prosecution witnesses after waking up from the deep slumber. It is well settled that the jurisdiction conferred under Section 311 of the Code cannot be used for filling up a lacuna in the prosecution case. The power under Section 311 of the Code can only be exercised if the Court while hearing the case deems fit and proper to examine some witnesses for the ends of justice, to appreciate the prosecution case and to clarify any doubt in his mind. This power cannot be exercised with the aid of the prosecutor this view finds support from the case of Rajendra Prasad Singh alias Khiru Singh v. Ramuchit Singh alias Chhotak Singh 1984 BBCJ 657.
7. Another thing is to be noted in this connection that by the impugned order the learned Addl. Sessions Judge has recalled his earlier order closing the case of the prosecution. It is well settled that a subordinate Courts have no jurisdiction to do so as held in the case of Bindeshwari Prasad Singh v. Kali Singh AIR 1977 SC 2432 : 1978 Cri LJ 187. Hence properly speaking the learned Additional Sessions Judge could not have recalled his earlier order closing the case of the prosecution and that also under Section 311 of the Code. As noted above the provision of this section are not attracted under the facts and circumstances of this case.
8. For the reasons stated above this application is allowed and the impugned order is quashed. The learned trial Court is directed to proceed in the trial from the stage after examination of accused under Section 313 of the Code.