Dnyandeo Pandurang Yadav And Ors. vs State Of Maharashtra
2004 Latest Caselaw 272 Bom

JUDGMENT

Naresh H. Patil, J.

1.Heard Shri. R. N. Dhorde, learned counsel appearing for the petitioners and Shri. D. V. Tele, learned Additional Public Prosecutor for the respondent State.

2. Rule. Rule made returnable forthwith. By consent of the parties the matter is taken up for hearing and final disposal.

3. The petitioners are accused in Sessions Case No. 29 of 1998. They are facing charge under Sections 302, 306, 498-A read with Section 34 of the Indian Penal Code. The prosecution alleges that the petitioner No. 1 was married to deceased Lalita. On 18-9-1997 the deceased died due to consumption of poison. First Information Report was registered on 19-9-1997 at Crime No. 255/1997 and the charge sheet was filed on 16-12-1997. The prosecution led its evidence. The last prosecution witness was examined on 3rd January 2004 and a purshis was passed by the prosecution of closure of its evidence.

4. The petitioners submitted an application on 3rd January 2004 for summoning three witnesses whose statements were recorded by police under Section 161 of the Code of Criminal Procedure. They are (1) Ananda Sakharam Falke, (2) Raju Vijay Gaikwad and (3) Kacharu Kondiba Rakshe.

5. In the said application the petitioners contended that, when the alleged incident took place the door of the room, in which the deceased was found lying, was latched from inside. Two of the prosecution witnesses, namely, Ananda Sakharam Falke and Kacharu Kondiba Rakshe were working at a distance from the house of the accused persons, doing the work of digging. They were called to the spot along with instruments and opened the door by breaking it. Thereafter the deceased was taken to hospital in a rickshaw of one Raju Vijay Gaikwad. According to the defence, the evidence of these three witnesses was essential for just decision of the trial, otherwise they felt that the truth would not come before Court. As the prosecution did not examine them as witnesses though their statements formed part of the charge sheet, the defence prayed to the Court to examine those three witnesses in the interest of justice by exercising powers under Section 311 of the Code of Criminal Procedure.

6. The learned 2nd Additional Sessions Judge, Ahmednagar by an order passed on 15th January 2004 rejected the said application by observing that the legal position is that when the prosecution witnesses available on record are not examined by the prosecution and if they are examined by the defence, then such witnesses and their evidence gets more weightage. There was no explanation forthcoming, according to the learned Judge, as to why the accused do not want to examine them as defence witnesses. On the contrary, according to the learned Judge, when the witnesses will come before Court as Court witnesses the defence will not get any opportunity to cross examine them. It was ultimately observed by the learned Judge that instead of calling these witnesses as Court witnesses it would be proper for the accused to examine them as their defence witnesses. And, therefore, a view was adopted that it does not appear to be essential to examine those witnesses as Court witnesses by invoking powers under Section 311 of the Code of Criminal Procedure.

7. The learned counsel for the petitioners submitted that in such cases the Court is expected to exercise powers under Section 311 of the Criminal Procedure Code for the just decision of the case which can be exercised at any stage of an enquiry, trial or other proceedings under this Code. The learned counsel placed on record copies of depositions of witnesses and the statements of those three witnesses recorded by the police under Section 161 of the Code of Criminal Procedure. Taking into consideration the evidence led by the prosecution and the statements of those three witnesses recorded by the police it was submitted that this is a fit case where the Court ought to have exercised power under Section 311 of the Code and examined them as Court witnesses, when two witnesses, namely, Anand Falke and Kacharu Rakshe, whose statements were recorded on 18-9-1997 and 10-10-1997, say that after hearing shouts from the house they reached the spot and they broke open the door and found that the deceased was lying on a cot.

8. In the submission of the learned counsel for the petitioners the learned Judge wrongly and erroneously rejected the application by observing that the defence may examine witnesses as defence witnesses. There is no finding on the issue as to why the Court did not exercise power under Section 311 of the Criminal Procedure Code.

9. The learned A.P.P. opposed the request made by the petitioners and states that no party can be compelled by Court to examine witness or lead a particular type of evidence. It is the sole discretion of the prosecution to examine witness or not to examine or lead evidence on a particular issue. In the facts of the present case the prosecution was justified in not examining those three witnesses and the defence is not precluded from examining those witnesses as defence witnesses.

10. I have perused the relevant depositions and the statements of those three witnesses recorded by the police, who stated that after they broke open the door of the room they saw that the deceased was lying on a cot.

11. The learned counsel for the petitioners placed reliance on a judgment of the Apex Court in the case of Mohanlal Shamji Soni v. Union of India wherein it is observed that it should be borne in mind that the aid of the section should be invoked only with the object of discovering relevant facts or obtaining proper proof of such facts for a just decision of the case and it must be used judicially and not capriciously or arbitrarily. While dealing with the scope of principle underlying the provisions of Section 311 of the Criminal Procedure Code, it was further observed :

"18. The next important question is whether Section 540 gives the Court carte-blanche drawing no underlying principle in the exercise of the extraordinary power and whether the said section is, unguided, uncontrolled and uncannalised. Though Section 540 (Section 311 of the new Code), is, in the widest possible terms and calls for no limitation, either with regard to the stage at which the powers of the Court should be exercised, or with regard to the manner in which they should be exercised, that power is circumscribed by the principle that underlines section 540, namely, evidence to be obtained should appear to the Court essential to a just decision of the case by getting at the truth by all lawful means. Therefore, it should be borne in mind that the aid of the section should be invoked only with the object of discovering relevant facts or obtaining proper proof of such facts for a just decision of the case and it must be used judicially and not capriciously or arbitrarily because any improper or capricious exercise of the power may lead to undesirable results. Further it is incumbent that due care should be taken by the Court while exercising the power under this section and it should not be used for filling up the lacunae left by the prosecution or by 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 rival side and further the additional evidence should not be received as a disguise for a retrial or to change the nature of the case against either of the parties. 27. The principle of law that emerges from the views expressed by this Court in the above decisions is that the Criminal Court has ample power to summon any person 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."

12. The purpose behind exercise of powers under Section 311 of the Code of Criminal Procedure by the Court is not to fill in lacunae in the evidence led by the prosecution or to support the defence but to discover the relevant facts or to obtain proper proof of such facts for arriving at a just decision of the case. The said exercise has to be done in a judicious manner. It is ultimately with the Court of facts to place reliance on the testimony of a Court witness which would be based on the quality of his evidence, the truthfulness in it and confidence which it inspires.

13. Section 311 of the Code of Criminal Procedure is manifestly in two parts. In the first part it is stated that, "a Court may exercise the power" while in the second part the word "shall" is used. It is mandatory for the Court to summon and examine a person if his evidence appears to it to be essential to the just decision of the case. In support of my view I am inclined to place reliance on some of the reported judgments.

14. The Apex Court in the case of Shakila Abdul Gafar Khan v. Vasant Raghunath Dhoble has observed thus :

"35. As pithily stated in Jennison v. Baker : (All ER p. 1006d) "The law should not be seen to sit by limply, while those who defy it go free, and those who seek its protection lose hope". Courts have to ensure that accused persons are punished and if deficiency in investigation or prosecution is visible or can be perceived by lifting the veil trying to hide the realities or covering the deficiencies, deal with the same appropriately within the framework of law. Justice has no favourite, except the truth. It is as much the duty of the prosecutor as of the Court to ensure that full and material facts are brought on record so that there might not be miscarriage of justice."

15. In a reported judgment of the Madhya Pradesh High Court in the case of S. R. S. Yadav v. State of Madhya Pradesh, 1997 Cri.L.J. 3860 while dealing with the principle underlying the provisions of Section 311 of the Criminal Procedure Code the High Court of Madhya Pradesh observed :

"5. The only consideration which should weigh with the Court is to see that justice is done. The consideration that something would be in the interest of accused only or something which is likely to benefit the prosecution is totally an alien the consideration. If the Court feels that certain evidence is available or can reasonably be made available and the same would be essential to a just decision of the case, whether in favour of the prosecution or the defence, the Court is not supposed to fold its hands and to bang the prosecution or to hang the defence simply because they or any of them did not take reasonable steps to bring such evidence on record............."

16. In State of Gujarat v. Senma Savabhai Bhikhabai and Anr. reported in 1995 Cri.L.J. 3061 while dealing with the provisions of Section 311 of the Criminal Procedure Code Division Bench of the Gujarat High Court has observed:

"8. ........ We are conscious of the fact that the statements before the police cannot be used as evidence, but in the present case, the material witness like Ambaben who was the mother of the accused and Narmadaben who was the wife of accused No. 1 were dropped by the learned A.P.P. along with other witnesses without 'mentioning' any reason for doing so. It cannot be gainsaid that the decision to drop the prosecution witnesses, whose statements have been recorded by the police, has to be justified by some reason even though in a cursory form, and even the Court is under a duty to ask the prosecutor as to why the witnesses have been dropped. It may be that some witnesses may not be supporting the prosecution case at the last moment; it may be that some witnesses may be facing an embarrassing situation and they may not be ready to depose at all, but in case of only circumstantial evidence it becomes the duty of the prosecution to examine such witnesses as may be able to throw any light on the alleged genesis of the case, even though they may not be ultimately supporting the prosecution. If prosecution decided to drop such witnesses it becomes the Court's duty to ask the prosecutor why such witnesses have been dropped. We are constrained to observe that in case of circumstantial evidence the Court must take initiative to summon and examine material witnesses in order to bring the relevant circumstances on record if the prosecution is not prepared or does not want to discharge its duty to examine all material witnesses, particularly because of the frequent criticism that the prosecution is merely an impersonal agency which is likely to be a lazy, weak or dishonest as any other public institution not run by private enterprise. This duty of the Court is reflected in Section 311 of the Code of Criminal Procedure."

17. In the case of Aeltemesh Rein v. State of Maharashtra reported in 1980 Cri.L.J. 858 the Bombay High Court observed :

"7. Under Section 311 of the Code, the Magistrate can summon and examine any witness as a Court witness at any stage, till he pronounces the final judgment. It cannot, therefore, be said that the learned Magistrate acted illegally in directing issue of summons to a witness to be examined as a Court witness when the case on that date was fixed for judgment".

18. In the case in hand the view adopted by the learned Judge that in case those three witnesses are summoned as Court witnesses the defence will not get any opportunity to cross examine them is also not a sustainable view. In a reported judgment of the Madras High Court in the case of Rengaswami v. Muruga, while dealing with the provisions of Section 540 of the Criminal Procedure Code, 1898, which corresponds to Section 311 of the new Code, it was observed :

"(4) The only rules, which the Magistrate must bear in mind when examining Court witnesses are (1) that the prosecution and the accused are both equally entitled to cross-examine a Court witness, and (2) that if the evidence of a Court witness is prejudicial to the accused, opportunity to rebut the evidence so given must be given to the accused.

(6) In this connection, we can usefully remember an extract from Burke in the Trial of Warren Hastings,

"A Judge is not placed in the high situation merely as a passive instrument of the parties. He has a duty of his own, independent of them and that duty is to investigate the truth."

Lumpkin J. in -- "Epps v. State (U.S.A.), observed,

"Counsel seek only for their clients' success; but the Judge must watch that justice triumps".

Hence, the view adopted by the learned Judge that those three witnesses if examined as defence witness would get more weightage is not a proper appreciation of the principle underlying the provisions of Section 311 of the Criminal Procedure Code.

19. In a given case the Court would be justified in refusing to exercise power under Section 311 of the Criminal Procedure Code based on the facts of the said case by applying the principles governing the law in a reasonable and judicious manner.

20. In this view of the matter I am of the view that the application filed by the defence for examining those three witnesses as Court witnesses requires to be allowed.

21. The impugned order dated 15-1-2004 passed by the 2nd Additional Sessions Judge, Ahmednagar below Exh.93 in Sessions Case No. 29 of 1998 is quashed and set aside. The application Exh.93 dated 3-1-2004 filed by the defence is allowed. The learned 2nd Additional Sessions Judge, Ahmednagar is directed to issue summons to witnesses, namely, (1) Ananda Sakharam Falke, (2) Raju Vijay Gaikwad and (3) Kacharu Kondiba Rakshe and examine them as Court witnesses under Section 311 of the Code of Criminal Procedure in accordance with law and keeping in view the aforestated principles.

22. Rule is made absolute in the above terms.