Narayan S/O Gurudas Kite vs State Of Maharashtra
2004 Latest Caselaw 652 Bom

JUDGMENT

S.T. Kharche, J.

1. By invoking the extraordinary jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, the order dated 26-6-2002 passed by the Ad hoc Additional Sessions Judge in Sessions Trial No. 155 of 1997 directing the recall of the prosecution witnesses under Section 311 of the Code of Criminal Procedure (for short the Code) is under challenge in this petition.

2. Brief facts are as under :

The applicant has been prosecuted for the offence punishable under Sections 362, 366 and 376 of Indian Penal Code vide Crime No. 143 of 1997 on the allegations that on 6-2-1997 between 11 and 12 hours he abducted the prosecutrix Ku. Nitisha Moghe of 12 years age and had taken her away from the lawful guardianship of her father and did commit rape on her. The first information report was lodged at the police station on 8-2-1997 at 22.00 hours and after the investigation the charge-sheet was filed. The applicant was arrested on 6-6-1997 and he was released on bail. The accused was put to trial. After framing of the charge the Sessions judge recorded the evidence of eight witnesses. The statement of the accused under Section 313 of the Code was recorded on 10-6-2002, the arguments were heard on 13-6-2002 and the case was closed for judgment which was to be delivered on 19-6-2002. On 19-6-2002 the accused made an application requesting for time to furnish the copies of case law, the case was adjourned and was fixed for judgment on 26-6-2002. Then the learned Sessions Judge suo motu in exercise of power under Section 311 of the Code, on perusal of documents available on record, directed that the witnesses, i.e. the prosecutrix Nitisha (P.W. I), her mother Mandakini (P.W. 5) and her father Ramesh (P.W. 6) be recalled for the purpose of examination on the point of age of the prosecutrix and also directed to call two witnesses, i.e. Head Mistress, Girls High School, Wardha who had issued the School Leaving Certificate and the other witness Dr. K. R. Borkar, Medical Officer, General Hospital, Wardha, who has issued the medical certificate, by his order dated 26-6-2002. This order has been challenged in the present petition.

3. Mr. Mokadam holding for Mr. Choudhari, learned counsel, for the applicant contended that the prosecutrix, her mother and her father were already examined and cross-examined. The prosecution did not submit any application for examination of the additional witnesses. The case was closed for judgment on 26-6-2002 and, therefore, the learned Sessions Judge has committed an error in exercising suo motu powers for recalling the witnesses under Section 311 of the Code. He contended that by recalling the witnesses who have been already examined and by examining the new witnesses the lacuna left by the prosecution would be filled up and it was not essential for the just decision of the case to exercise the suo motu powers by the learned Sessions Judge. He contended that another medical officer has already been examined by the prosecution and the name of the Head Mistress, Girls High School, Wardha, was not in the list of the witnesses at all. The impugned order, therefore, cannot be sustained in law and if allowed to stand, it would amount to abuse of process of law and therefore the same may kindly be quashed. In support of these submissions, he relied on the decision of this Court in R. N. Kakkar v. Hanif Gafoor Naviwala, 1996 Cri.L.J. 365 and also on the decision of Delhi High Court in the case of Virendra Singh and Ors. v. The State, 1993 Cri.LJ. 1627.

4. The learned A.P.P. contended that the learned Sessions Judge has in his order assigned the reasons as to why he has exercised suo motu powers under Section 311 of the Code. He contended that it was essential for the just decision of the case to call the witnesses i.e. the Head Mistress of Girls High School, Wardha, who had issued the school leaving certificate showing the date of birth of the prosecutrix and the certificate was already placed on record. He contended that the doctor has issued the medical certificate in respect of the age of the prosecutrix and it was already placed on record and, therefore, the evidence of the doctor is also essential for the just decision of the case. He contended that in the interest of justice the learned Sessions Judge was justified in recalling the witnesses, i.e. The prosecutrix, her father and mother on the point of age of the prosecutrix and no fault could be found with the impugned order. He contended that the order passed by the learned Sessions Judge is perfectly just and legal and in such circumstances the present petition may kindly be dismissed.

5. This Court has given thoughtful consideration to the contentions canvassed by the learned counsel for the parties. In order to appreciate the rival contentions, it is necessary to reproduce Section 311 of the Code. It contemplates 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 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."

6. In R. N. Kakkar 's Case 1996 Cri.L.J. 365, cited supra, it has been observed by this Court that "although the amplitude of the powers vested in a Court under Section 311 of the Criminal Procedure Code, 1973 is very wide, the object of exercise of such powers is not to enable the prosecution to adduce evidence which would plug in the holes in its case, for such an exercise of power would be defeating the very object for which it has been bestowed on the Court, namely the just decision of the case. This would be a capricious exercise of power by the Court. No party can lake advantage of its own wrong and if the powers arc exercised under this section to enable the prosecution to plug in the holes in its case, the aforesaid principle would be given a go-bye. While exercising the power under this section, the Court should bear in mind that the larger the power the higher the circumspection required before exercising the same,"

7. In Virendra Singh's Case, 1993 Cri.L.J.1627, cited supra, the Delhi High Court observed that "if some material is available to the court to indicate that the witness who is sought to be recalled had given some evidence earlier which was materially different from the statement with which is sought to be confronted, permission to recall the witness should be granted under Section 311 of the Code. Without disclosing any authentic materials, no attempt can be made to recall the witness and put him some fishing questions in order to extract one thing or the other from him like the case of a person trying to hold a straw in a big river for safety. It must be remembered that Section 311 is not to be applied in two stages, first by seeking permission to recall a witness and thereafter producing material in Court with which he is sought to be confronted. All such materal requires to be disclosed in one go and not in piecemeal stages. If such procedure is adopted, no trial can be concluded."

8. The analysis of Section 311 of the Code is that the Court has power (i) giving a discretion to the court to examine the witness at any stage and (ii) the mandatory portion which compels a court to examine a witness if his evidence appears to be essential to the just decision of the case. The discretion given is very wide and the very width requires a corresponding caution and the object of the section is to enable the court to arrive at the truth. The court examines this evidence neither to help the prosecution nor the defence.

9. In the present case, it is not disputed that the petitioner/accused stands charge sheeted for the offence punishable under Sections 363, 366 and 376 of Indian Penal Code and as per the allegations mentioned in the charge-sheet it would reveal that the age of the prosecutrix was 12 years and 6 months at the time of the commission of the offence and the prosecution has already relied on the school leaving certificate as well as the medical examination of the proseculrix conducted by Dr. Borkar, General Hospital Wardha. Simply because the case was closed for judgment, it did not follow that the learned Sessions Judge has committed an error in calling these two witnesses for examination and for recording their statements in support of the documents which were already on record. Similarly, the prosecutrix Nitisha, her father Ramesh and her mother Mandakini, though were examined by the prosecution did not state Anywhere as to what was the age of the prosecutrix at the time of the commission of the offence. Though their evidence has been recorded by the learned Sessions Judge and the case was ultimately fixed for judgment, it did not follow that the Sessions Judge could not have exercised the powers under Section 311 of the Code for recalling the witnesses especially when no material is sought to be produced by the prosecution, as both the witnesses were on record and the say of the prosecution was that the age of the prosecutrix was about 12 years at the time of the commission of the offence. Therefore, in the interest of justice and for the just decision of the case, it was absolutely necessary to call those witnesses only on the point of age of the prosecutrix and this Court is of the firm opinion that by recalling those witnesses under Section 311 of the Code no lacuna would be filled in the case of the prosecution. On the contrary, for the just decision of the case, it was essential to examine those witnesses in relation to the age of the prosecutrix as the question of the age of the prosecutrix would go to the root of the case. However, it is obvious that no prejudice would be caused to the petitioner/accused by examination of these witnesses as he would get full opportunity to cross-examine those witnesses. In such circumstances, it is not possible to accept the contention of the learned counsel for the applicant that the impugned order passed by the Sessions Judge recalling the witnesses is not sustainable in law. The authorities on which reliance is placed can be distinguished and this Court finds that although the Court can exercise suo motu powers under Section 311 of the Code, that power has to be exercised for the just decision of the case and in the present case this Court finds that the learned Sessions Judge was perfectly justified in recalling the witnesses by exercising suo motu powers. Hence no case has been made out for interference in the impugned order and in the result this petition is dismissed.