Rajasthan High Court - Jodhpur
Asharam @ Ashumal vs . on 12 May, 2015
Author: Vijay Bishnoi
Bench: Vijay Bishnoi
S.B.CR. MISC.PETITION NO.1197/2015
Asharam @ Ashumal
vs.
State of Rajasthan
1
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
ORDER
S.B.CR. MISC.PETITION NO.1197/2015
Asharam @ Ashumal
vs.
State of Rajasthan
Date of Order : 12th May, 2015
PRESENT
HON'BLE MR JUSTICE VIJAY BISHNOI
Mr Mahesh Bora, Sr.Advocate assisted by
Mr Nishant Bora, for petitioner
Mr Rajesh Panwar, Addl. Advocate General
Mr P.C.Solanki, for complainant
BY THE COURT:
This criminal misc. petition under section 482 CrPC has been filed by the petitioner against the order dated 01.05.2015 passed by Sessions Judge, District Jodhpur (for short 'the trial court' hereinafter) in Sessions Case No.152/2013, whereby the trial court has allowed the application filed by the prosecution under section 311 CrPC and recalled PW.35 (Nitin Dave) for his re- examination.
Brief facts of the case are that the petitioner is facing trial for the S.B.CR. MISC.PETITION NO.1197/2015 Asharam @ Ashumal vs. State of Rajasthan 2 offences punishable under sections 342, 354- A, 370(4), 376(2)(f), 376(D), 506, 509, 109, 120-B, 34 IPC and sections 23, 26 of Juvenile Justice (Care and Protection of Children Act, 2000) and sections 5(f) (g), 7, 8 read with section 17 of the Protection of Children from Sexual Offences Act, 2012 before the trial court in sessions case No.152/2013. In the trial against the petitioner, recording of statements of the prosecution witnesses is under progress and on 18.03.2015, examination-in-chief of PW.35 was recorded and he was cross-examined by counsel for the accused-petitioner before the trial court on 19.03.2015. Thereafter, an application was moved on behalf of the prosecution on 17.04.2015 under section 311 CrPC with a prayer that PW.35 be recalled because during the course of his deposition before the trial court on 18.03.2015 and 19.03.2015, he had failed to exhibit matriculation certificate of the prosecutrix, which was collected by him during the course of investigation. It is contended that the said matriculation certificate has been countersigned by the S.B.CR. MISC.PETITION NO.1197/2015 Asharam @ Ashumal vs. State of Rajasthan 3 prosecutrix and it is a part of the charge- sheet and is a very important document because the date of birth of the prosecutrix is mentioned in the said certificate, however, due to inadvertences, the said document could not be exhibited and, therefore, PW.35 be recalled. The application filed on behalf of the prosecution under section 311 CrPC was seriously opposed by the counsel for the petitioner while arguing that the prayer of the prosecution to recall PW.35 is nothing but an attempt to fill a lacuna and, therefore, the application is liable to be rejected. It is also argued that PW.35 is not the author of the said document and, therefore, he cannot produce or prove the said document.
The trial court after hearing the counsel for the parties has allowed the said application while holding that the document said to be produced by the prosecution by way of recalling PW.35 is a copy of matriculation certificate of the prosecutrix and said to have been collected by PW.35 during the course of investigation. It is further S.B.CR. MISC.PETITION NO.1197/2015 Asharam @ Ashumal vs. State of Rajasthan 4 observed by the trial court that as per the prosecution, due to inadvertence, the said document could not be produced and exhibited during the course of deposition of PW.35. The trial court has further held that the petitioner is charged with the offence punishable under the Protection of Children from Sexual Offences Act, 2012 (for short 'the POCSO Act' hereinafter) and in relation to that charge, the date of birth of the prosecutrix on the date of incident is an important point and, therefore, in the interest of justice, PW.35 is necessary to be recalled. Regarding admissibility and proof of the said document, the trial court while relying on the decision of Hon'ble Supreme Court in Bipin Shanti Lal Panchal vs. State of Gujarat and Anr., (2001) 3 SCC 1, has held that mere admission of any document in evidence does not amount to its proof. The trial court has further held that objection regarding the admissibility and the proof of the document sought to be produced by the prosecution by recalling PW.35 can be considered and decided at the time of final S.B.CR. MISC.PETITION NO.1197/2015 Asharam @ Ashumal vs. State of Rajasthan 5 hearing of the case.
Assailing the validity of the impugned order dated 01.05.2015, Mr Bora,
Senior Counsel assisted by Mr Nishant Bora has argued that the trial court has grossly erred in recalling PW.35 as no case for recalling the said witness is made out. It is also argued that with the recalling of PW.35, the trial court has allowed the prosecution to fill lacuna, whereas power under section 311 CrPC cannot be invoked for allowing either of the parties to fill any lacuna, therefore, the impugned order passed by the trial court is liable to be set aside. It is also argued that the said matriculation certificate cannot be produced and proved by PW.35 and, therefore, the trial court has grossly erred in recalling PW.35 only for the purpose of producing the said document. It is further argued that the said matriculation certificate of the prosecutrix is a photostat, which falls within the definition of secondary evidence as per section 63 of the Indian Evidence Act and cannot be given in evidence unless the requirements of S.B.CR. MISC.PETITION NO.1197/2015 Asharam @ Ashumal vs. State of Rajasthan 6 section 65 of the Indian Evidence Act are satisfied.
Per contra, learned Additional Advocate General Mr Rajesh Panwar and Mr P.C.Solanki, counsel for the complainant have supported the impugned order passed by the trial court and argued that PW.35 has conducted investigation in the case and during the course of investigation, collected matriculation certificate of the prosecutrix, in which her date of birth is mentioned. It is submitted that the said matriculation certificate has been countersigned by the prosecutrix and is very much part of the charge-sheet, however, during the course of his deposition before the trial court, PW.35 had failed to produce the same due to inadvdertence and, therefore, the prosecution immediately moved an application with a prayer for recalling the PW.35. It is contended that the matriculation certificate, which is a part of the charge-sheet is an important document and when the same has not been produced due to inadvertence, the trial court has not committed any illegality in S.B.CR. MISC.PETITION NO.1197/2015 Asharam @ Ashumal vs. State of Rajasthan 7 allowing the application of the prosecution for recalling the PW.35. It is also argued that the trial court has power to recall any witness at any stage of the case if the court considers it necessary for just decision of case.
On the strength of the above arguments, learned Additional Advocate
General and the counsel appearing on behalf of the complainant have submitted that there is no illegality in the order passed by the trial court, therefore, this criminal misc. petition may be dismissed.
Heard learned counsel for the rival parties and perused the impugned order as well as the material available on record.
For the proper appreciation of the controversy involved, reference of section 311 CrPC would be necessary, which reads as under:
"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 S.B.CR. MISC.PETITION NO.1197/2015 Asharam @ Ashumal vs. State of Rajasthan 8 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."
The Hon'ble Supreme Court in Zahira Habibullah Sheikh & Anr. vs. State of Gujarat & Ors., (2006)3 SCC 374 has held as under:
"25. The object underlying Section 311 of the Code is that there may not be failure of justice on account of mistake of either party in bringing the valuable evidence on record or leaving ambiguity in the statements of the witnesses examined from either side. The determinative factor is whether it is essential to the just decision of the case. The section is not limited only for the benefit of the accused, and it will not be an improper exercise of the powers of the Court to summon a witness under the Section merely because the evidence supports the case for the prosecution and not that of the accused. The section is a general section which applies to all proceedings, enquiries and trials under the Code and empowers Magistrate to issue summons to any witness at any stage of such proceedings, trial or enquiry. In Section 311 the significant expression that occurs is "at any stage of inquiry or trial or other proceeding under this Code". It is, however, to be borne in mind that whereas the section confers a very wide power on the Court on summoning witnesses, the discretion conferred is to be exercised judiciously, as the wider the power the greater is the necessity for application of judicial S.B.CR. MISC.PETITION NO.1197/2015 Asharam @ Ashumal vs. State of Rajasthan 9 mind.
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33. This Court has often emphasised that in a criminal case the fate of the proceedings cannot always be left entirely in the hands of the parties, crime being public wrong in breach and violation of public rights and duties, which affect the whole community as a community and are 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 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 S.B.CR. MISC.PETITION NO.1197/2015 Asharam @ Ashumal vs. State of Rajasthan 10 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.
34. 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 the truth has to be fair to all concerned. There can be no analytical, all comprehensive or exhaustive definition of 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 it is only the accused who must be fairly dealt with. That would be turning a Nelson's eye 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 dealt with fairly in a criminal trial. Denial of a fair trial is as much injustice to the accused as 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 S.B.CR. MISC.PETITION NO.1197/2015 Asharam @ Ashumal vs. State of Rajasthan 11 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."
[Emphasis supplied] In Manan Sk. vs. State of West Bengal, AIR 2014 SC 2950, the Hon'ble Supreme Court has held as under:
"10. The aim of every court is to discover truth. Section 311 of the Code is one of many such provisions of the Code 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 reexamine 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.
S.B.CR. MISC.PETITION NO.1197/2015 Asharam @ Ashumal vs. State of Rajasthan 12 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."
Recently further, the Hon'ble Supreme Court in Rajaram Prasad Yadav vs. State of Bihar & Anr., (2013) 14 SCC 461 has laid down the following principle to be borne in mind by the courts while exercising powers under section 311 CrPC:
"23. From a conspectus consideration of the above decisions, while dealing with an application under Section 311 Cr.P.C. read along with Section 138 of the Evidence Act, we feel the following principles will have to be borne in mind by the Courts:
a) 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?
b) The exercise of the widest discretionary power under Section 311 Cr.P.C. should ensure that the judgment should not be rendered on S.B.CR. MISC.PETITION NO.1197/2015 Asharam @ Ashumal vs. State of Rajasthan 13 inchoate, inconclusive speculative presentation of facts, as thereby the ends of justice would be defeated.
c) 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.
d) 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.
e) 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.
f) The wide discretionary power should be exercised judiciously and not arbitrarily.
g) 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.
h) 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.
i) 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.
j) Exigency of the situation, fair play and good sense should be the safe guard, 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 record due to any inadvertence, the Court should be magnanimous in permitting such mistakes to be rectified.
k) 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 S.B.CR. MISC.PETITION NO.1197/2015 Asharam @ Ashumal vs. State of Rajasthan 14 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.
l) The additional evidence must not be received as a disguise or to change the nature of the case against any of the party.
m) 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.
n) 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."
Hence, in view of the law laid down by the Hon'ble Supreme Court, it is clear that a court at any stage of any trial has every power to summon and examine or recall and re-examine any such person if his evidence appears to be essential to just decision of the case with the object of finding out the truth.
Generally an application for recalling of a witness is opposed while
claiming that the same is moved only with intent to fill-up the lacuna, however, this Court is of the opinion that an application under section 311 CrPC cannot be dismissed S.B.CR. MISC.PETITION NO.1197/2015 Asharam @ Ashumal vs. State of Rajasthan 15 solely on an objection being raised that the same will amount to allow either of the parties to fill-up a lacuna. It is for the court to take into consideration the facts of each case and to decide whether any evidence sought to be recalled by any party is necessary for the just decision of the case. In any case, the right of the objecting party can always be safeguarded by granting equal opportunity to cross-examine/lead evidence in accordance with law.
Keeping in mind the law laid down by the Hon'ble Supreme Court in the above referred decisions, now if we examine that the document sought to be produced by the prosecution, by way of recalling the PW.35, is necessary for the just decision of the case or not, then we find that the disputed document is matriculation certificate of the prosecutrix, said to have been collected by the PW.35 during the course of investigation. It is claimed that the same has also been countersinged by the prosecutrix. It is to be noted that the petitioner is charged with the offences punishable under the provisions of S.B.CR. MISC.PETITION NO.1197/2015 Asharam @ Ashumal vs. State of Rajasthan 16 POCSO Act and for the purpose of charge under the said Act, the date of birth of the child is an important issue. When in relation to an important issue either of the parties wants to adduce any evidence, which was earlier could not be adduced due to mistake, the trial court cannot shut its eyes whenever such mistake is pointed out to it during the pendency of trial.
So far as the objection of the counsel for the petitioner regarding
admissibility and proof of the matriculation certificate of the prosecutrix is concerned, it is settled that mere production and exhibition of a document does not amount the proof regarding its admissibility and also does not prove the contents of the document. The trial court has rightly observed that the admissibility and the proof of the document sought to be produced by recalling the PW.35, can be considered and decided at the time of final hearing of the case as per the law laid down by Hon'ble Supreme Court in Bipin Shanti Lal Panchal vs. State of Gujarat and Anr.
It is not in dispute that the S.B.CR. MISC.PETITION NO.1197/2015 Asharam @ Ashumal vs. State of Rajasthan 17 document in question has been filed by the police along with the charge-sheet and is part of the record and is very much in the knowledge of the petitioner. Once the petitioner is in knowledge of the existence of the said document in the charge-sheet, it cannot be said that the petitioner will be prejudice with the production of the said document or with the exhibition of the said document particularly when the right of the petitioner to raise objection regarding its admissibility and proof is reserved by the trial court. It is also noticed that the prosecution has filed the application under section 311 CrPC within a month after deposition of PW.35 and the prosecution evidence is still going on, therefore, it cannot be said that the prosecution moved the said application with delay.
In view of the above discussions, I do not find any merit in the challenge of the petitioner to the impugned order passed by the trial court. Hence, the instant criminal misc. petition being devoid of any force is hereby dismissed.
S.B.CR. MISC.PETITION NO.1197/2015 Asharam @ Ashumal vs. State of Rajasthan 18 Stay petition also stands dismissed.
[VIJAY BISHNOI],J.
m.asif/-