Calcutta High Court
Nirmala Devi vs Ranjit Singh And Anr. on 6 May, 2005
Equivalent citations: (2005)3CALLT82(HC), 2005(4)CHN763
JUDGMENT Asit Kumar Bisi, J.
1. The hapless widow has come to the door of this Court seeking justice and fair Trial of the case of murder of her husband. She being in torment has preferred the instant revision application under Section 401 read with Section 482 of the Code of Criminal Procedure against the Judgment and order of acquittal passed by the learned Additional Sessions Judge, First Court, Asansol on 30th January, 2002 in sessions case No. 130 of 2001 corresponding to S.T. No. 02 of 2002 under Section 302 of the Indian Penal Code.
2. Shorn of details the prosecution case is that on 19th March, 1997 at about 23-00 hours Mongol Singh, Assistant Jamadar, R.S. Singh, Assistant Guard and Ranjit Singh, Assistant Guard and all attached to DVC, Maithan left the security control room of DVC, Maithan for nigh patrolling duty around Maithan by the Jeep. They stopped near Majumdar Niwas at about 2-00 A.M. on 20th March, 1997 for filling the jeep radiator with water. At that time there was hot altercation between Ranjit Singh (accused) and Mongol Singh and the accused Ranjit Singh shot at Mongol Singh from his gun as a result of which Mongol Singh received severe injuries and he was taken to B.P. Neogi Hospital, Maithan for treatment where he ultimately succumbed to his injuries. On 20th March, 1997 at about 10-35 hours O. Hembram, Security Officer, D.V.C. Maithan lodged the written complaint with the police officer on duty, Salanpur Police Station and on the basis of the said written complaint which was treated as FIR Salanpur P.S. Case No. 25 of 1997 dated 20th March, 1997 under Section 302 IPC and Section 30 of the Arms Act was started against the accused Ranjit Singh. On completion of investigation the police submitted charge-sheet under Section 302 IPC. against the accused.
3. The learned S.D.J.M., Asansol committed the case to the Court of Session under Section 209 of the Code of Criminal Procedure and the trial was conducted in the Court of the learned Additional Sessions Judge, First Court, Asansol who framed the charge under Section 302 IPC against the accused. The accused raised plea of innocence in his defence. It is manifestly clear from the materials on record that in the course of trial the defacto complainant O. Hembram had not been examined on behalf of the prosecution and the written complaint which was treated as FIR had not been admitted in evidence because of non-production of the defacto complainant, O. Hembram, as witness. That apart, the impugned judgment per se reveals that neither the doctors nor some important witnesses who are alleged to have witnessed the occurrence were examined on behalf of the prosecution for proving the prosecution case. The reasons for withholding those witnesses were not at all cited by the prosecution. The learned Trial Court found the evidence adduced on behalf of the prosecution to be far from convincing which inevitably led to. acquittal of the accused.
4. Mr. Asim Kumar Roy, the learned advocate for the petitioner has contended that when the prosecution failed to produce the material witnesses including the defacto complainant during trial the learned the Trial Court ought to have exercised its power under Section 311 of the Code of Criminal Procedure to summon those material witnesses for examining them since their evidence is essential to the just decision of the case. He has drawn my attention to the mandatory portion of Section 311 of the Code of Criminal Procedure which compels the Court to examine a witness if his evidence appears to be essential to the just decision of the case. Section 311 of the Code of Criminal Procedure in fact consists of the two parts i.e., one part empowers the Court to exercise, discretion to examine witness at any stage and the other part which is mandatory in nature compels the Court to examine any such person whose evidence appears to be essential to the just decision of the case. Mr. Roy, on behalf of the petitioner, has cited Zahira Habibulla H. Sheikh and Anr. v. State of Gujarat and Ors., 2004 Supreme Court cases (Cri) 999 where at page 1027 (para 44) the Supreme Court held as under :
"... In Mohanlal v. Union of India this Court has observed, while considering the scope and ambit of Section 311, that the very usage of the words such as, 'any Court', 'at any stage',-or 'any enquiry or trial or other proceedings', 'any person' and 'any such person', clearly spells out that the section has expressed in the widest-possible terms and do not limit the discretion of the Court in any way. However, as noted above, the very width requires a corresponding caution that the discretionary powers should be invoked as the exigencies of justice require and exercised judicially with circumspection and consistently with the provisions of the Code. The second part of the section does not allow any discretion but obligates and binds the Court to take necessary steps if the fresh evidence to be obtained is essential to the just decision of the case, 'essential' to an active arid alert mind and not to one which is bent to abandon or abdicate. 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 subserve the cause of 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".
5. It is settled law that the powers conferred by Section 311 of the Code and discretion vested are to prevent any irretrievable or immeasurable damage to the cause of society, public interest and miscarriage of justice and recourse may be had by Courts to power under this section only for the purpose of discovering relevant facts or obtaining proper proof of such facts as are necessary to arrive at a just decision in a case. It has been so held by the Supreme Court in the case of Zahira Habibulla H. Sheikh (supra) at page 1028 (para 46).
6. In Rajendra Prasad v. Narcotic Cell, 1999 Supreme Court cases (cri) 1062 at page 1066 (para 12) the Supreme Court has observed that the power of the Court under Section 311 of the Code is plenary to summon or even recall any witness at any stage of the case if the Court considers it necessary for a just decision.
7. Ordinarily the best available evidence should be produced before the Court to prove the fact of the case or the points in issue involved therein. It is either for the prosecution or for the defence to establish their respective cases by adducing the best available evidence but when the best available evidence is withheld, there is legal duty of the presiding officer of the Court of his own, independent of the parties, to take an active role in the proceedings to find out the truth and administer Justice. In a situation like this it is the duty of the Court to discharge its statutory functions whether discretionary or obligatory according to law in dispensing justice. It must be borne in mind that in. order to enable the Court to find out the truth and arrive at a just decision the salutary provisions of Section 311 of the Code are enacted and if the judgment is rendered on incomplete and inconclusive presentation of facts, the ends of justice would be defeated. Reference can be made in this context to Mohanlal Shamji Soni v. Union of India and Anr., 1991 Supreme Court cases (Cri) 595 at page 601 (para 10).
8. The quote the words of Bentham, "Witnesses are the eyes and ears of justice". The Court has to take a participatory role in a trial and Section 311 of the code and section 165 of the Indian Evidence Act confer vast and wide powers on presiding officers of Court to elicit all necessary materials by playing an active role in the evidence collecting process. This aspect has been highlighted by the Supreme Court in Zahira Habibulla H. Sheikh (supra) where at page 1027 (para 43) the Supreme Court has specifically observed that the Court cannot afford to be wishfully or pretend to be blissfully ignorant or oblivious to such serious pitfalls or dereliction of duty on the part of the prosecuting agency. The purpose of fair trial is to find out the truth and prevent miscarriage of justice. The Court cannot show indifference or adopt an attitude of total aloofness where there is serious dereliction of duty on the part of the prosecuting agency. So to prevent miscarriage of justice and find out the truth fair trial is essentially needed and for that the power conferred by Section 311 of the Code is to be exercised by the Court when the situation so demands.
9. Mr. Joy Sengupta, learned advocate appearing for O.P. No. 2 State supports the contentions raised by Mr. Roy on behalf of the petitioner. In his usual fairness Mr. Sengupta on behalf of the State has conceded that the prosecution ought to have taken steps to bring the material witnesses during trial and that not having been done, it is a fit case where the learned trial Court should exercise its power under Section 311 of the Code to summon those witnesses for examination.
10. Mr. Siladitya Sanyal, the learned advocate for accused/O.P. No. 1, has challenged the above contentions raised by Mr. Roy, on behalf of the petitioner and supported by Mr. Sengupta, on behalf of the O.P. No. 2/State. Mr. Sanyal has urged that this Court of revision cannot reappreciate the evidence and interfere with the finding of acquittal of the accused. He has cited Bindeshwari Prasad Singh v. State of Bihar and Anr., 2002 Supreme Court cases (Cri) 1448 where at page 1452 (para 12) the Supreme Court has held that Sub-section (3) of Section 401 of the Code of Criminar Procedure in terms provides in Section 401 shall be deemed to authorise a High Court to convert a finding of acquittal into one of conviction directly, it could not do so indirectly by the method of ordering a retrial. Mr. Sanyal has further urged that there was no justification for this Court to interfere with the order of acquittal passed by the learned trial Court and order retrial for the purpose of examining the witnesses under Section 311 of the Code to fill in the lacuna in the prosecution case. He has argued that the revisional power of this Court cannot be exercised as a second appellate power and the scope of revision is very limited. He has cited T.N. Dhakkal v. James Basnett and Anr., 2002 Supreme Court cases (Cri) 1066, State of Maharashtra v. Jagmohan Kurdip Singh Anand and Ors., 2004 Supreme Court Cases (Cri) 2003 and Kaptan Singh and Ors. v. State of M.P. and Anr., 1997 C Cr LR (SC) 226 in support of his contention.
11. Having regard to the rival contentions raised advocates for the parties, the facts and circumstances emerging from the materials on record and the principles of law as discussed above I find that none of the decisions cited by Mr. Sanyal, on behalf of O.P. No. 1/accused, applies to the instant case. It is settled law by a catena of decisions of the Supreme Court that the High Court will interfere in revision in cases where the interest of public justice requires interference for the correction of a manifest illegality or prevention of gross miscarriage of justice. As mentioned hereinbefore, in the instant case no attempt was made on behalf of the prosecution to produce some material witnesses including the defacto complainant whose names appeared in the charge-sheet and because of non-production of the defacto complainant as witness the written complaint itself could not be admitted in evidence. Applying ratio of the decisions of the Supreme Court in Zahira Habibulla H. Sheikh (supra) and Mohanlal Shamji Soni (supra) to this case I hold unhesitatingly that it is a fit case where power under Section 311 of the Code ought to have been exercised by the learned Trial Court to summon the material witnesses including the defacto complainant and the eye witnesses to the occurrence who were named in the charge-sheet and not produced by the prosecution for examination during trial to find out the truth.
12. From the impugned judgment it is quite evident that the defacto complainant O. Hembram was not examined by the prosecution and Dr. S.K. Sarkar, Dr. Sailendra Kumar, Ramswarup Singh, Rajinder Rajak and Md. Samsul Rahaman who had been cited as witnesses in the charge-sheet had not been produced by the prosecution before the learned Court below during trial. There is nothing on record to indicate that any attempt whatsoever was made by the prosecuting agency to bring those witnesses for their examination before the learned Trial Court. It has been clearly pointed out by the learned Trial Court in the impugned Judgment that no explanation is forthcoming from the side of the prosecution for withholding them. Under the circumstances the learned Trial Court ought to have taken steps for examination of those material witnesses by issuing summons in exercise of the power conferred by Section 311 of the Code of Criminal Procedure.
13. The revision application preferred by the petitioner is accordingly allowed. The impugned order of acquittal passed by the leared Additional Sessions Judge, First Court, Asansol on 30th January, 2002 in Sessions Case No. 130 of 2001 corresponding to S.T. No. 02 Of 2002 is set aside. The case be remanded to the learned Trial Court for retrial with direction to take steps for issue of summons to the above named material witnesses including the defacto complainant for their examination in exercise of the power under Section 311 of the Code of Criminal Procedure. After examination of those witnesses is over the learned Trial Court will further examine the accused under Section 313 of Cr PC if any incriminating circumstances appear in the evidence of those witnesses against the accused and thereupon give the opportunity to the accused to adduce evidence on his behalf if he so desires and decide the case afresh on the basis of the evidence which is already on record and further evidence to be adduced in terms of my above direction after giving full opportunity of hearing to the prosecution and the defence according to law as expeditiously as possible without being influenced by its earlier findings or by any observation made by this Court.
Let a copy of this Judgment along with the L.C.R. be sent down to the learned Court below forthwith.
Xerox certified copy of this order, if applied for, be given to the parties as expeditiously as possible.