Punjab-Haryana High Court
State Of Punjab vs Sukhdev Singh And Another on 15 May, 2023
Author: Sandeep Moudgil
Bench: Sandeep Moudgil
Neutral Citation No:=2023:PHHC:073635
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232 IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRR-2961-2018 (O&M)
DECIDED ON: 15.05.2023
STATE OF PUNJAB
.....PETITIONER
VERSUS
SUKHDEV SINGH AND ANOTHER
.....RESPONDENTS
CORAM: HON'BLE MR. JUSTICE SANDEEP MOUDGIL
Present: Mr. Mohit Chaudhary, AAG, Punjab for petitioner.
SANDEEP MOUDGIL, J (ORAL)
CRM-31084-2018 This is an application under Section 5 of the Limitation Act for condonation of delay of 85 days filing the present revision.
For the reasons mentioned in the application, the same is allowed and the delay of 85 days in filing the present revision is condoned.
CRR-2961-2018
1. An application was moved by the prosecution under Sections 91 and 311 Cr.P.C., for production of original viscera report of the deceased and for summoning of additional witnesses i.e., Dr. Hargun, ASI-Gurjinder Singh and Harbans Kaur respectively. The Ld. Sessions Judge vide his impugned order dated 08.02.2018 partly allowed the application. The Ld. Trial Court allowed the State to tender the report of Chemical Examiner regarding viscera. However, the Ld. Trial Court declined to summon the additional witnesses mentioned above. Hence, the revision petition.
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2. Mr. Mohit Chaudhary, AAG, Punjab has vehemently contended that the post mortem of the deceased was conducted by Dr. Hargun, who handed over the Viscera of the deceased to the Investigating Agency for chemical analysis, in order to know the cause of death. Thereafter, the investigating agency has deposited the sealed Viscera along-with the original statement of Harbans Kaur and whole original documents of proceedings initiated under Section 174 Cr.P.C. by ASI Gurjinder Singh, with the office of Chemical Examiner Kharar, which was not received till 07.12.2017. Due to said reason the afore-said witnesses could not be examined.
3. As far as the delay for not examining the witnesses despite granting 18 effective opportunities, is concerned, the assertion is that the case was under analysis and report could not be submitted because Chief Chemical Examiner has left the job and FIR was registered against Assistant Chemical Examiner.
4 While considering the scope of powers to be exercised for summoning of material witness or to examine person present, as envisaged vide Section 311 Cr.P.C., the Apex Court in AG vs. Shiv Kumar Yadav & Anr., 2016 (2) SCC 402, discussed and culled out and observed as under:-
10. It can hardly be gainsaid that fair trial is a part of guarantee under Article 21 of the Constitution of India. Its content has primarily to be determined from the statutory provisions for conduct of trial, though in some matters where statutory provisions may be silent, the court may evolve a principle of law to meet a situation which has not been provided for. It is also true that principle of fair trial has to be kept in mind for interpreting the statutory provisions.
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11. It is further well settled that fairness of trial has to be seen not only from the point of view of the accused, but also from the point of view of the victim and the society. In the name of fair trial, the system cannot be held to ransom. The accused is entitled to be represented by a counsel of his choice, to be provided all relevant documents, to cross- examine the prosecution witnesses and to lead evidence in his defence. The object of provision for recall is to reserve the power with the court to prevent any injustice in the conduct of the trial at any stage. The power available with the court to prevent injustice has to be exercised only if the Court, for valid reasons, feels that injustice is caused to a party. Such a finding, with reasons, must be specifically recorded by the court before the power is exercised. It is not possible to lay down precise situations when such power can be exercised. The Legislature in its wisdom has left the power undefined. Thus, the scope of the power has to be considered from case to case. The guidance for the purpose is available in several decisions relied upon by the parties. It will be sufficient to refer to only some of the decisions for the principles laid down which are relevant for this case.
12. In Rajaram case, the complainant was examined but he did not support the prosecution case. On account of subsequent events he changed his mind and applied for recall under Section 311 Cr.P.C. which was declined by the trial court but allowed by the High Court. This Court held such a course to be impermissible, it was observed :
"13. .. In order to appreciate the stand of the appellant it will be worthwhile to refer to Section 311 Cr.P.C., as well as Section 138 of the Evidence Act. The same are extracted hereunder:
"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 3 of 14 ::: Downloaded on - 22-05-2023 00:14:16 ::: Neutral Citation No:=2023:PHHC:073635 CRR-2961-2018 (O&M ) - 4- 2023:PHHC:070260 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. "138. Order of examinations.--Witnesses shall be first examined-in-chief then (if the adverse party so desires) cross- examined, then (if the party calling him so desires) re- examined.
The examination and cross-examination must relate to relevant facts but the cross-examination need not be confined to the facts to which the witness testified on his examination-in-chief. Direction of re-examination.--The re-examination 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 re-examination, the adverse party may further cross-examine upon that matter."
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 Evidence Act, prescribed the order of examination of a witness in the court. The order of re-examination is also prescribed calling for such a witness so desired for such re- examination. 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 4 of 14 ::: Downloaded on - 22-05-2023 00:14:16 ::: Neutral Citation No:=2023:PHHC:073635 CRR-2961-2018 (O&M ) - 5- 2023:PHHC:070260 of re-examination 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 311CrPC 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 re-examine any person already examined. Insofar as recalling and re-examination of any person already examined is concerned, the court must necessarily consider and ensure that such recall and re- examination 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 re- examined 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."
13. After referring to earlier decisions on the point, the Court culled out following principles to be borne in mind :
"17.1. 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?
17.2. 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 and speculative 5 of 14 ::: Downloaded on - 22-05-2023 00:14:16 ::: Neutral Citation No:=2023:PHHC:073635 CRR-2961-2018 (O&M ) - 6- 2023:PHHC:070260 presentation of facts, as thereby the ends of justice would be defeated.
17.3. 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 re-examine any such person.
17.4. 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.
17.5. 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.
17.6. The wide discretionary power should be exercised judiciously and not arbitrarily.
17.7. 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.
17.8. 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.
17.9. 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.
17.10. Exigency of the situation, fair play and good sense should be the safeguard, while exercising the discretion. The court should bear in 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 6 of 14 ::: Downloaded on - 22-05-2023 00:14:16 ::: Neutral Citation No:=2023:PHHC:073635 CRR-2961-2018 (O&M ) - 7- 2023:PHHC:070260 record due to any inadvertence, the court should be magnanimous in permitting such mistakes to be rectified.
17.11. 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.
17.12. The additional evidence must not be received as a disguise or to change the nature of the case against any of the party.
17.13. 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.
17.14. 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."
14. In Hoffman Andreas case, the counsel who was conducting the case was ill and died during the progress of the trial. The new counsel sought recall on the ground that the witnesses could not be cross-examined on account of illness of the counsel. This prayer was allowed in peculiar circumstances with the observation that normally a closed trial could not be 7 of 14 ::: Downloaded on - 22-05-2023 00:14:16 ::: Neutral Citation No:=2023:PHHC:073635 CRR-2961-2018 (O&M ) - 8- 2023:PHHC:070260 reopened but illness and death of the counsel was in the facts and circumstances considered to be a valid ground for recall of witnesses. It was observed :
"6. Normally, at this late stage, we would be disinclined to open up a closed trial once again. But we are persuaded to consider it in this case on account of the unfortunate development that took place during trial i.e. the passing away of the defence counsel midway of the trial. The counsel who was engaged for defending the appellant had cross-examined the witnesses but he could not complete the trial because of his death. When the new counsel took up the matter he would certainly be under the disadvantage that he could not ascertain from the erstwhile counsel as to the scheme of the defence strategy which the predeceased advocate had in mind or as to why he had not put further questions on certain aspects. 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."
15. The above observations cannot be read as laying down any inflexible rule to routinely permit a recall on the ground that cross-examination was not proper for reasons attributable to a counsel. While advancement of justice remains the prime object of law, it cannot be understood that recall can be allowed for the asking or reasons related to mere convenience. It has normally to be presumed that the counsel conducting a case is competent particularly when a counsel is appointed by choice of a litigant. Taken to its logical end, the principle that a retrial must follow on every change of a counsel, can have serious 8 of 14 ::: Downloaded on - 22-05-2023 00:14:16 ::: Neutral Citation No:=2023:PHHC:073635 CRR-2961-2018 (O&M ) - 9- 2023:PHHC:070260 consequences on conduct of trials and the criminal justice system. Witnesses cannot be expected to face the hardship of appearing in court repeatedly, particularly in sensitive cases such as the present one. It can result in undue hardship for victims, especially so, of heinous crimes, if they are required to repeatedly appear in court to face cross-examination.
16. The interest of justice may suffer if the counsel conducting the trial is physically or mentally unfit on account of any disability. The interest of the society is paramount and instead of trials being conducted again on account of unfitness of the counsel, reform may appear to be necessary so that such a situation does not arise. Perhaps time has come to review the Advocates Act and the relevant Rules to examine the continued fitness of an advocate to conduct a criminal trial on account of advanced age or other mental or physical infirmity, to avoid grievance that an Advocate who conducted trial was unfit or incompetent. This is an aspect which needs to be looked into by the concerned authorities including the Law Commission and the Bar Council of India.
17. In State (NCT of Delhi) v. Navjot Sandhu, 2005(3) Apex Criminal 49 : (2005) 11 SCC 600, this Court held:-
"167. .......... we do not think that the Court should dislodge the counsel and go on searching for some other counsel to the liking of the accused. The right to legal aid cannot be taken thus far. It is not demonstrated before us as to how the case was mishandled by the advocate appointed as amicus except pointing out stray instances pertaining to the cross-examination of one or two witnesses. The very decision relied upon by the learned counsel for the appellant, namely, Strickland v. Washington makes it clear that judicial scrutiny of a counsel's performance must be careful, deferential and circumspect as the ground of ineffective assistance could be easily raised after an adverse verdict at the trial. It was observed therein:
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2023:PHHC:070260 "Judicial scrutiny of the counsel's performance must be highly deferential. It is all too tempting for a defendant to second- guess the counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining the counsel's defence after it has proved unsuccessful, to conclude that a particular act of omission of the counsel was unreasonable. Cf. Engle v. Isaac [456 US 107 (1982) at pp. 133-134). A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of the counsel's challenged conduct, and to evaluate the conduct from the counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge in a strong presumption that the counsel's conduct falls within the wide range of reasonable professional assistance;...."
18. It may be proper to recall that the present case is in the category of cases where the trial is required to be fast tracked. In fact this Court directed in Shivanna [(2014) 8 SCC 916] as under :
"2. While we propose to consider this matter on merits after service of notice to the respondent-accused, we feel acutely concerned as to why the Union of India should not take initiative and steps to evolve a procedure for fast-track justice to be adopted by the investigating agencies and the Fast Track Courts by proposing amendments to Cr.P.C., for speedy justice to the victim.
3. Fast Track Courts no doubt are being constituted for expeditious disposal of cases involving the charge of rape at the trial stage, but we are perturbed and anguished to notice that although there are Fast Track Courts for disposal of such cases, we do not yet have a fast-track procedure for dealing with cases of rape and gang rape lodged under Section 376 IPC 10 of 14 ::: Downloaded on - 22-05-2023 00:14:16 ::: Neutral Citation No:=2023:PHHC:073635 CRR-2961-2018 (O&M ) - 11- 2023:PHHC:070260 with the result that such heinous offences are repeated incessantly.
4. We are of the considered opinion that there is pressing need to introduce drastic amendments to Cr.P.C., in the nature of fast-track procedure for Fast Track Courts and here is an occasion where we deem it just and appropriate to issue notice and call upon the Union of India to file its response as to why it should not take initiative and sincere steps for introducing necessary amendment into Cr.P.C., 1973 involving trial for the charge of "rape" by directing that all the witnesses who are examined in relation to the offence and incident of rape cases should be straightaway produced before the Magistrate for recording their statement to be kept in sealed cover and thereafter the same be treated as evidence at the stage of trial which may be put to test by subjecting it to cross-examination. We are further of the view that the statement of victim should as far as possible be recorded before the Judicial Magistrate under Section 164 Cr.PC., skipping over the recording of statement by the police under Section 161 Cr.P.C., which in any case is inadmissible except for contradiction so that the statement of the accused thereafter be recorded under Section 313 Cr.P.C. The accused then can be committed to the appropriate court for trial whereby the trial court can straightaway allow cross-examination of the witnesses whose evidence were recorded earlier before the Magistrate.
5. What we wish to emphasise is that the recording of evidence of the victim and other witnesses multiple times ought to be put to an end which is the primary reason for delay of the trial. We are of the view that if the evidence is recorded for the first time itself before the Judicial Magistrate under Section 164 Cr.P.C., and the same be kept in sealed cover to be treated as deposition of the witnesses and hence admissible at the stage of trial with liberty to the defence to cross-examine them with further liberty 11 of 14 ::: Downloaded on - 22-05-2023 00:14:16 ::: Neutral Citation No:=2023:PHHC:073635 CRR-2961-2018 (O&M ) - 12- 2023:PHHC:070260 to the accused to lead his defence witnesses and other evidence with a right to cross-examination by the prosecution, it can surely cut short and curtail the protracted trial if it is introduced at least for trial of rape cases which is bound to reduce the duration of trial and thus offer a speedy remedy by way of a fast-track procedure to the Fast Track Court to resort to.
6. Considering the consistent recurrence of the heinous crime of rape and gang rape all over the country including the metropolitan cities, we are of the view that it is high time such measures of reform in Cr.P.C., be introduced after due deliberation and debate by the legal fraternity as also all concerned. We, therefore, deem it just and appropriate to issue notice to the Union of India through the Attorney General which the counsel for the petitioner is directed to serve by way of dasti summons. The matter be posted again on 3-9-2013 for further consideration."
19. In continuation of the above, further order dated 25th April, 2014 [(2014) 8 SCC 913] was passed as follows :
"10.1. Upon receipt of information relating to the commission of offence of rape, the investigating officer shall make immediate steps to take the victim to any Metropolitan/preferably Judicial Magistrate for the purpose of recording her statement under Section 164 Cr.P.C. A copy of the statement under Section 164 Cr.P.C., should be handed over to the investigating officer immediately with a specific direction that the contents of such statement under Section 164 Cr.P.C., should not be disclosed to any person till charge- sheet/report under Section 173 Cr..PC., is filed.
10.2. The investigating officer shall as far as possible take the victim to the nearest Lady Metropolitan/preferably Lady Judicial Magistrate.
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10.3. The investigating officer shall record specifically the date and the time at which he learnt about the commission of the offence of rape and the date and time at which he took the victim to the Metropolitan/preferably Lady Judicial Magistrate as aforesaid.
10.4. If there is any delay exceeding 24 hours in taking the victim to the Magistrate, the investigating officer should record the reasons for the same in the case diary and hand over a copy of the same to the Magistrate.
10.5. Medical examination of the victim:Section 164-A Cr.P.C., inserted by Act 25 of 2005 in Cr.P.C.,imposes an obligation on the part of investigating officer to get the victim of the rape immediately medically examined. A copy of the report of such medical examination should be immediately handed over to the Magistrate who records the statement of the victim under Section 164 Cr.P.C.
11. A copy of this order thus be circulated to all the Directors General of Police of all the States/Commissioners of Police in Metropolitan cities/Commissioners of Police of Union Territories who are then directed to send a copy of this order to all the Police Stations-in-Charge in their States/Union Territories for its compliance in cases which are registered on or after the receipt of a copy of these directions. Necessary instructions by the DGPs/Commissioners of Police be also issued to all the Police Stations-in-Charge by the DGPs/Commissioners of Police incorporating the directions issued by us and recorded hereinbefore."
5. This Court is of the considered view that the Section 311 Cr.P.C., is couched in very wide terms. It empowers the Court at any stage of inquiry, trial or other proceedings to summon any person as a witness or examine any person in attendance or recall and re-examine a witness already 13 of 14 ::: Downloaded on - 22-05-2023 00:14:16 ::: Neutral Citation No:=2023:PHHC:073635 CRR-2961-2018 (O&M ) - 14- 2023:PHHC:070260 examined. The words "essential to the just decision of the case" are the key words. But the exercise of this power cannot be arbitrary. The court should not permit the prosecution to fill the lacuna. But in the case in hand, the prosecution is not trying to fill up the lacuna by any stretch of imagination, rather the examination of the afore-said witnesses are essential for the proper adjudication of the case. This Court is convinced that no prejudice would be caused to either of the parties, which will rather help in furtherance of justice for the trial and such examination of those witnesses may take the case of the prosecution to a logical end to ensure that guilty is brought to book.
6. Moreover, in a heinous crime like murder etc., the accused should not be given benefit of any delay in the evidence, which is neither intentional nor deliberate.
7. The present petition is disposed of with a direction to the prosecution to produce the witnesses namely Dr. Hargun, ASI Gurjinder Singh and Harbans Kaur before the trial Court for their examination.
8. However, it is made clear that no further adjournment shall be granted to summon/examine the aforesaid witnesses except one last opportunity other than the date already fixed before the trial Court.
9. Ordered accordingly.
(SANDEEP MOUDGIL)
15.05.2023 JUDGE
Sham
Whether speaking/reasoned Yes/No
Whether reportable Yes/No
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