Gauhati High Court
Dr Satyakam Phukan vs The Asomiya Pratidin And 5 Ors on 24 June, 2022
Author: Robin Phukan
Bench: Robin Phukan
Page No.# 1/12
GAHC010206742019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Rev.P./360/2019
DR SATYAKAM PHUKAN
S/O LATE JITENDRA NATH PHUKAN, R/O JORPUKHURIPAR, UZANBAZAR,
DIST-KAMRUP(M), GUWAHATI-781001
VERSUS
THE ASOMIYA PRATIDIN AND 5 ORS.
AN ASSAMESE NEWSPAPER, BEARING REGN. NO. 53902/95 AND RNP/GH-
075/2012-14, MANIRAM DEWAN ROAD, CHANDMARI, GUWAHATI, P.S.-
CHANDMARI, DIST-KAMRUP(M), ASSAM, PIN-781003
2:THE ASOMIYA PRATIDIN
AN ASSAMESE NEWSPAPER
BEARING REGN. NO. 53902/95 AND RNP/GH-075/2012-14
MANIRAM DEWAN ROAD
CHANDMARI
GUWAHATI
P.S.-CHANDMARI
DIST-KAMRUP(M)
ASSAM
PIN-781003
REPRESENTED BY ITS PROPRIETOR SRI JAYANTA BARUA
3:JATIN CHOUDHURY
PUBLISHER
THE ASOMIYA PRATIDIN
AN ASSAMESE NEWSPAPER
BEARING REGN. NO. 53902/95 AND RNP/GH-075/2012-14
MANIRAM DEWAN ROAD
CHANDMARI
GUWAHATI
P.S.-CHANDMARI
Page No.# 2/12
DIST-KAMRUP(M)
ASSAM
PIN-781003
4:HAIDER HUSSAIN
CHIEF EDITOR
THE ASOMIYA PRATIDIN
AN ASSAMESE NEWSPAPER
BEARING REGN. NO. 53902/95 AND RNP/GH-075/2012-14
MANIRAM DEWAN ROAD
CHANDMARI
GUWAHATI
P.S.-CHANDMARI
DIST-KAMRUP(M)
ASSAM
PIN-781003
5:NITYA BORA
EDITOR
THE ASOMIYA PRATIDIN
AN ASSAMESE NEWSPAPER
BEARING REGN. NO. 53902/95 AND RNP/GH-075/2012-14
MANIRAM DEWAN ROAD
CHANDMARI
GUWAHATI
P.S.-CHANDMARI
DIST-KAMRUP(M)
ASSAM
PIN-781003
6:SANJIB KUMAR PHUKAN
EXECUTIVE EDITOR
THE ASOMIYA PRATIDIN
AN ASSAMESE NEWSPAPER
BEARING REGN. NO. 53902/95 AND RNP/GH-075/2012-14
MANIRAM DEWAN ROAD
CHANDMARI
GUWAHATI
P.S.-CHANDMARI
DIST-KAMRUP(M)
ASSAM
PIN-78100
Advocate for the Petitioner : MR. D K BAGCHI
Advocate for the Respondent : MR. P KATAKI (R3-R6)
Page No.# 3/12 BEFORE HON'BLE MR. JUSTICE ROBIN PHUKAN Advocate for the Petitioner : Mr. D. K. Bagchi, Adv. Advocate for the respondents : Mr. P. Kataki, Adv.
Date of Hearing : 23.05.2022.
&
Date of Verdict (CAV) : 24.06.2022.
VERDICT (CAV)
In this revision petition, under Se ction 397 read with Section 401 of the Code of Criminal Procedure, 1973, the petitioner, Dr. Satyakam Phukan has challenged the legality, propriety and correctness of the order, dated 08.07.2019, passed by the Court of learned Addl. Chief Judicial Magistrate, Kamrup (M) at Guwahati in C.R. Case No. 2063/12, under Sections 34/120B/500/501/502/505 /511 of the IPC.
2. It is to be mentioned here that vide the impugned order, the learned Court below has dismissed the petition No. 2318, filed by the petitioner to adduce further evidence.
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3. The factual background leading to filing of the present petitioner is briefly stated as under:-
"In connection with publication of one defamatory news item in the 'Assam Pratidin Newspaper', the petitioner instituted a complaint case against six respondents. Upon such complaint, the learned Court below has taken cognizance and issued process to the respondent. Accordingly, the respondent appeared before the learned Court below and contested the case. While the case was pending for examination of witnesses, the petitioner filed one petition bearing No. 2318, for allowing him to adduce further evidence (examination-in-chief) in connection with publication of another defamatory news item on 18.10.2012. Thereafter, hearing both the parties on the petition, the learned Court below, vide impugned order, dated 08.07.2019, had dismissed the petition on the ground that the subject matter of both the news items are different and the news item published on 18.10.2012 was subsequent to the news item, based upon which the complaint case has been filed and the same gave rise to new cause of action and offence and the complainant had already adduced (examination-in- chief) on 23.04.2018, and that the subsequent offence is barred by limitation as per provision of 438 Cr.P.C. and the same relates to different subject matter".
4. Being highly aggrieved, the petitioner approached this Court by filing the present petition on the ground that the subject matter of both the news items are same and publication of the second news item is a Page No.# 5/12 continuing offence and as such, filing of separate criminal case is not required and that the learned Court below committed error by holding that the second news item is different from the first news item and that the impugned order is contrary to the spirit of Section 311 of the Code of Criminal Procedure and therefore, it is contended to allow the petition by setting aside the impugned order.
5. I have heard Mr. D. K. Bagchi, learned counsel for the petitioner and also heard Mr. P. Kataki, learned counsel for the respondents.
6. Mr. Bagchi, learned counsel for the petitioner submits that the impugned order passed by the learned Court below suffers from manifest illegality and that the learned Court below has failed to appreciate the power conferred under Section 311 Cr.P.C. and also failed to understand the principle summarized therein and that unless the impugned order is set aside and the petitioner is allowed to adduce evidence, serious prejudice will be caused to the petitioner and therefore, it is contended to allow the petition. Mr. Bagchi has also referred one case law - V. N. Patil- vs.-K. Niranjan Kumar and Others ; reported in (2021) 3 Supreme Court Cases 66, in support of his submission.
7. On the other hand, Mr. P. Kataki, learned counsel for the respondent has defended the order passed by the learned Court below and submits that no illegality, impropriety has been committed by the learned Court below by dismissing the prayer of the petitioner as the petition has been filed after 6 years of filing the complaint and therefore, it is contended to up-held the impugned order.
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8. Having heard the submission of the learned Advocates of both the sides, I have carefully gone through the impugned order and the complaint petition as well as the relevant news items. It may be mentioned here that the case has been lodged under section 34/120(B)/500/501/502/505/511 IPC. A careful perusal of both the news items reveals that the subject matter of both the news item are same, although, the headlines in both the items are different. Further, it appears that the complainant had lodged the complaint in respect of first news item. The second news item was published on 18.10.2012, and the complainant filed the petition for adducing evidence in respect of second news item after 6 years. Be it noted here that there is allegation of conspiracy and to establish the same subsequent news item published by the respondent in their News Paper, cannot be said to be irrelevant at this stage.
9. I have carefully gone through case law i.e. V. N. Patil (supra)- referred by the learned counsel for the petitioner, wherein, the Hon'ble Supreme Court has held that:-
"The aim of every court is to discover the truth. Section 311 Cr.P.C. is one of many such provisions which strengthen the arms of a court in its effort to unearth the truth by procedure sanctioned by law. At the same time, the discretionary power vested under Section 311 Cr.P.C. has to be exercised judiciously for strong and valid reasons and with caution and circumspection to meet the ends of justice."
10. In Mohanlal Shamji Soni v. Union of India & Anr., reported in AIR 1991 SC 1346, Hon'ble Supreme Court had examined the scope of Page No.# 7/12 Section 311 Cr.P.C., and held that it is a cardinal rule of the law of evidence, that the best available evidence must be brought before the court to prove a fact, or a point in issue. However, the courts are under an obligation to discharge its statutory functions, whether discretionary or obligatory, according to law and hence ensure that justice is done. The court has a duty to determine the truth, and to render a just decision. The same is also the object of Section 311 Cr.P.C., wherein the court may exercise its discretionary authority at any stage of the enquiry, trial or other proceedings, to summon any person as a witness though not yet summoned as a witness, or to recall or re- examine any person, though not yet summoned as a witness, who are expected to be able to throw light upon the matter in dispute, because if the judgments happen to be rendered on an inchoate, inconclusive and speculative presentation of facts, the ends of justice would be defeated.
11. In Rajeswar Prasad Misra v. The State of West Bengal & Anr., reported in AIR 1965 SC 1887, Hon'ble Supreme Court had dealt with the ample power and jurisdiction vested in the court, with respect to taking additional evidence, and observed, that it may not be possible for the legislature to foresee all situations and possibilities and therefore, the court must examine the facts and circumstances of each case before it, and if it comes to 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, and if such an action on its part is justified, then the court must exercise such power. The Court further held as under:-
".....the Criminal Court has ample power to summon any person Page No.# 8/12 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." (Emphasis added)
12. In Rajendra Prasad v. Narcotic Cell through its Officer-in- Charge, Delhi, AIR 1999 SC 2292, this Court considered a similar issue and held 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 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 count errors committed by the parties or to find out and declare who among the parties performed better." (Emphasis added)
13. In Hoffman Andreas v. Inspector of Customs, Amritsar, (2000) 10 SCC 430. The following passage is in this regard apposite:-
`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.' xxx xxx xxx xxx We are conscious of the fact that recall of the witnesses is being directed nearly four years after they were examined in chief about an incident that is nearly seven years old.....
Page No.# 9/12 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."
14. In T. Nagappa v. Y.R. Muralidhar, AIR 2008 SC 2010, Hon'ble Supreme Court has held that while considering such an application, the court must not imagine or assume what the deposition of the witness would be, in the event that an application under Section 311 Cr.P.C. is allowed and appreciate in its entirety, the said anticipated evidence. Hon'ble Supreme Court also held as under:-
"What should be the nature of evidence is not a matter which should be left only to the discretion of the court. It is the accused who knows how to prove his defence. It is true that the court being the master of the proceedings must determine as to whether the application filed by the accused in terms of sub- section (2) of Section 243 of the Code is bona fide or not or whether thereby he intends to bring on record a relevant material. But ordinarily an accused should be allowed to approach the court for obtaining its assistance with regard to summoning of witnesses, etc. If permitted to do so, steps therefore, however, must be taken within a limited time. There cannot be any doubt whatsoever that the accused should not be allowed to unnecessarily protract the trial or summon witnesses whose evidence would not be at all relevant."
15. In Natasha Singh Vs. CBI (State) Criminal Appeal No.709 of 2013, (Arising out of SLP (Crl.) No.3271 of 2013), Hon'ble Supreme Court has held that:-
Page No.# 10/12 "Section 311 Cr.P.C. empowers the court to summon a material witness, or to examine a person present at "any stage" of "any enquiry", or "trial", or "any other proceedings" under the Cr.P.C., or to summon any person as a witness, or to recall and re-examine any person who has already been examined if his evidence appears to it, to be essential to the arrival of a just decision of the case. Undoubtedly, the Cr.P.C. has conferred a very wide discretionary power upon the court in this respect, but such a discretion is to be exercised judiciously and not arbitrarily. The power of the court in this context is very wide, and in exercise of the same, it may summon any person as a witness at any stage of the trial, or other proceedings. The court is competent to exercise such power even suo motu if no such application has been filed by either of the parties. However, the court must satisfy itself, that it was in fact essential to examine such a witness, or to recall him for further examination in order to arrive at a just decision of the case."
It is further held that:-
"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 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."
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16. In the case in hand the petitioner has given an explanation for the delay in filing the petition. The explanation so offered by him seems to be not so unreasonable. It is stated in the petition that initially the news item escapes the attention of the petitioner as he was pre-occupied with his profession, and having been informed by his friends, he has consulted his engaged Advocate who did not initiate any action despite his request and therefore, he has changed his Advocate. These facts have not been seriously disputed the respondent side.
17. Thus, the impugned order and the reasons, so assigned by the learned court below, in dismissing the petition, when tested on the touchstone of the principles laid down by Hon'ble Supreme Court in the cases discussed herein above, this court is of the considered opinion that the same failed withstand the test of legality, propriety and correctness. And if allowed the same to sustain, it will cause serious prejudice to the petitioner. There is no doubt that the power is discretionary, yet the discretion granted to the courts under section 311 Cr.P.C. cannot be exercised to defeat the end of justice. It is worth mentioning here in this context that right to fair trial is a fundamental right guaranteed by Article 21 of the Constitution of India. So, denying opportunity to the petitioner to adduce further evidence will impair his right to fair trial.
18. In the result, I find merit in this petition and accordingly, the same stands allowed. The impugned order, dated 08.07.2019, passed by the learned court below in C.R. Case No. 2063/12, stands set aside and quashed. It is provided that the learned court below shall afford an opportunity to the petitioner to adduce evidence pertaining to publication Page No.# 12/12 of the second news item, which was published subsequent to filing of the complaint. Stay, if any, granted earlier stands vacated.
19. The parties have to bear their own cost.
JUDGE Comparing Assistant