Uttam Saha & Anr vs State Of West Bengal
2022 Latest Caselaw 60 Cal

                      IN THE HIGH COURT AT CALCUTTA

                    CRIMINAL REVISIONAL JURISDICTION

                               APPELLATE SIDE

Before:

The Hon'ble Justice Ananda Kumar Mukherjee



                         C.R.R No. 174 of 2020

                                 With

                   CRAN 2 of 2020 (Old CRAN 1261 of 2020)

                             Uttam Saha & Anr.

                                   Vs.

                           State of West Bengal.



For the Petitioner:            Mr. Tapas Kumar Sinha, Advocate.


                               Mrs. Dipa Bhattacharya (Sarma), Advocate.


                               Mr. Suman De, Advocate.


For the State:                 Mr. Sudip Ghosh, Advocate.


                               Mr. Apurba Kumar Datta, Advocate.


Heard on :                     21.12.2021.


Judgment on:                   11.01.2022.


     Ananda Kumar Mukherjee, J. :-


1.

This revisional application under section 401, read with section 482 of

the Code of Criminal Procedure, 1973 is directed against order dated

09.01.2020 passed by Learned Additional Sessions Judge, First Track Court-II,

Howrah, whereby the petition dated 06.01.2020 filed by the petitioners under

section 311 of code of Criminal Procedure in connection with Sessions Trial No.

205 of 2012 was rejected.

2. Petitioner no. 1 is the husband of petitioner no. 2, who are facing trial in

S.T. No. 205 of 2012 under section 498 A/ 306/ 302 of the Indian Penal Code.

3. In brief, the prosecution case is that Papia Saha the daughter of defacto-

complainant Swapan Kumar Sen was married to Haradhan Saha in the year

1995. Initially the defacto-complainant and his family did not recognise the

marriage between the Papia and Haradhan Saha as it was an outcome of a love

affair. The paternal family accepted the marriage after 7 to 8 months. Papia

gave birth a son and a daughter and lived in her husband's house along with

petitioner no. 1 the elder brother of the husband, petitioner no. 2 the sister-in-

law and Gitabala Saha, her mother-in-law. After passage of time the husband,

petitioners and the mother-in-law subjected Papia to physical and mental

torture on demand of dowry. On 10.12.2011 the defacto-complainant received

an information from his granddaughter that Papia was set ablaze inside a room

and rushed to their house. Papia was rescued and admitted at CMRI Hospital

Calcutta where she breathed her last on 14.12.2011. Over this incident a

police case was started against the husband and inmates of the matrimonial

house deceased Papia Saha, where the petitioners are facing trial.

4. It is the case of the petitioners that after framing of charge when the

defacto-complainant was being examined as PW-1 suggestion was put to him

that on 10.12.2011, that is the date of occurrence, petitioners Uttam Saha and

his wife Nandini Saha were not present at the place of occurrence as both of

them were attending a medical camp at 'SAAOL' under Dr. Bimal Chhajer. The

same suggestion was put to PW-3, the son of the diseased. In course of trial

petitioners did not adduce any evidence to establish their alibi, that on

10.12.2011 both the petitioners were not present at the place of occurrence as

they had been attending a medical camp at 'SAAOL'. After closure of evidence

of the prosecution witnesses, the accused person were examined under section

313 of the Cr. P.C and one witness DW-1, was examined by accused. When the

case was fixed up for pronouncing of judgment, the petitioners on 06.01.2020

filed an application under section 311 of Cr. P.C before the jurisdictional court,

praying for allowing them to adduce evidence and produce some documents

essential for the just decision of the case.

5. After hearing both parties Learned Additional Sessions Judge, First

Track Court-II, Howrah, by his order dated 09.01.2020 rejected the application

filed by the petitioners on the ground that it was for the purpose of filling up of

lacuna the prayer was made and it would caused serious prejudice to the

prosecution, specially when the petitioner did not file the documents till the

conclusion of argument and furthermore such evidence is not essential for the

just decision of the case.

6. Petitioners being aggrieved with the impugned order have filed this

revisional application praying for setting aside the same. Learned Advocate for

the petitioner argued that petitioners claimed that they were not present at the

place of occurrence and such ground was not made for the first time by way of

filling the application under section 311 of Cr. P.C. as such the plea of alibi

was taken by the petitioners at the very outset during cross-examination of

PW-1 and PW-3, when suggestions were given to the witnesses that on

10.12.2011 the petitioners were attending a 'Heart Care Workshop' under Dr.

Bimal Chhajer. It is argued that petitioners' right to produce such important

evidence before the court should not be restricted as it would caused prejudice

to them. In support of his argument learned Advocate relied upon a decision in

the case of V.N. Patil V. K. Niranjan Kumar and others (2021) 3 SCC 661,

wherein the Hon'ble Supreme Court of India held that, "The object underlying

section 311 Cr. P.C is that there may not be a failure of justice on account of

mistake of either party in bringing valuable evidence on record or leaving

ambiguity in the statements of the witnesses examined from either side. The

determinative factor for exercise of power under section 311 Cr. P.C whether it

is essential to the just decision of the case. The significant expression that

occurs is at any stage of any inquiry or trial or other proceeding under this

code". Hon'ble Supreme Court further held that it is to be borne in mind that

the discretionary power conferred under section 311 of Cr. P.C was to be

exercised judiciously, as it is always said "wider the power, greater is the

necessity of caution while exercise of judicious discretion".

7. Learned Advocate argued that there has been a delay on the part of the

petitioners in producing their evidence of sterling quality before this court but

the same cannot be discarded on the ground of delay simpliciter. Learned

Advocate submitted that the impugned order, disallowing the petitioners from

producing such vital evidence before this court would prejudice the petitioners

and prevent the court from arriving at a just decision. It is urged that the

impugned order may be set aside and the petitioner be given an opportunity to

adduce evidence.

8. Learned Advocate for the State argued that the petitioners wanted to rely

upon some documents at a belated stage, after closure of evidence of the

prosecution, examination of accused under section 313 of Cr. P.C, evidence of

defence witnesses and conclusion of hearing of argument, when date was fixed

for delivery of judgement. It is submitted that the documents on which the

petitioners wants to rely upon were within their folds and knowledge but no

attempt was made to produce them. It is not the case of the petitioners that

they have discovered such documents related to attending medical camp at a

later stage thereby they were prevented from producing such documents before

the court on earlier occasion. Furthermore, the documents on which the

petitioner proposed to rely cannot be characterised as medical documents.

Therefore, the evidence which the petitioners now like to produce before the

court is only to fill up lacuna which is not permissible under the law. Referring

to the impugned order, learned Advocate for the State argued that the

impugned order suffers from no illegality or impropriety as learned Additional

Sessions Judge has passed a reasoned order rejecting the prayer for adducing

evidence under section 311 of Cr. P.C- observing that it is a dilatory conduct of

the petitioners adopted with an object to fill up lacuna in their case.

9. Having considered the arguments advanced by learned Advocates for the

petitioners and the State as well as the application for revision and the

impugned order, I find the petitioners are the elder brother and sister-in-law of

the victim who died and unnatural death in her matrimonial home due to

grievous burn injuries on her person. The husband, mother-in-law as well as

the petitioners have been arraigned as accused person in Sessions Trial Case

No. 205 of 2012. The impugned order clearly states that the petitioners have

file this application under section 311 of Cr. P.C. claiming that on the fateful

day, that is on 10.12.2011 and thereafter on 11.12.2011 they were attending a

medical camp at 'SAAOL' arranged by Dr. Bimal Chhajer. This plea on the part

of the petitioners is their alibi that at the relevant time the petitioners were not

present at the place of occurrence, when the deceased was in ablaze.

10. The jurisdictional court while rejecting the application under section 311

of Cr. P.C. has referred to the decision of Hon'ble Supreme Court of India

reported in (2013) 3 CRLJ (SC) 548 Para 15, wherein it was observed that the

scope and object of the provision is to enable the court to determine the truth

and render just decision after discovery of all relevant facts and obtaining

proper proof for such facts, to arrive at a just decision of the case and power

must be exercised judiciously and not capricious or arbitrarily as any improper

or capricious exercise or such power may lead to undesirable result and that

application under section 311 of Cr. P.C must not be allowed to fill up a lacuna

in the case of 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

unfair advantage to the opposite party.

11. Learned Additional Sessions Judge, F.T.C, Uluberia observed in the

impugned order that evidence of prosecution witness ended on 11.09.2019.

Thereafter the accused person was examining under section 313 of Cr. P.C

where they did not state anything regarding their medical treatment or

attending any medical camp. The accused persons were permitted to adduce

evidence. At the time DW-1 was examined the witness did not state that

petitioners on the date of occurrence attended a medical camp at 'SAAOL'.

Argument of both parties was heard and after date was fixed for delivery of

judgment, the petitioners filed the application under section 311 of Cr. P.C for

adducing such evidence which they were aware of but failed to produce.

12. Admittedly the petitioners have filed their application under section 311

of Cr. P.C at a belated stage after closure of evidence. The object of section 311

of Cr. P.C is laid down as follows: "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 be

essential to the just decision of the case".

13. The provisions of section 311 of Cr. P.C. is therefore to meet exigency

situation. It vests a court of law with the power to examine witnesses at any

stage of inquiry, trial or proceeding for reaching to a just decision. In the case

under consideration, during cross-examination of PW-1 and PW-3, clear

suggestions were given on behalf of the petitioners that Uttam Saha and his

wife were not present at the spot on 10.12.2011 and both of them were

attending a medical camp at 'SAAOL' medical camp under Dr. Bimal Chhajer.

The witnesses answered in the negative, therefore the burden of prove shifted

upon the petitioners to establish their alibi by adducing evidence. In course of

examination under section 313 of the Cr. P.C the accused persons did not

plead their alibi, consistent with the suggestions to PW-1 and PW-3, during

their cross-examination. It is also true that DW-1 did not come up with the

present claim of the petitioners. The petitioners have aggrandized their claim of

being absent at the place of occurrence on 10.12.2011, on a plea that they

were attending a medical camp at 'SAAOL', organised by Dr. Bimal Chhajer.

Whatever the outcome of the case may be, on consideration of the totality of

the evidence together with its trustworthiness, I am of the view that the

petitioners who raised a question of being away at the time the incident of fire,

should get an opportunity to examine relevant witness and prove the

documents they are relying upon. End of justice would be served if the

petitioner witness proving such documents for the purpose of admission,

stands the test of cross-examination for which prosecution will not suffer any

prejudice.

14. In the case of V. N. Patil vs K. Niranjan Kumar and others (2021) 3

SCC 661, Hon'ble Supreme Court of India observe 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". The

principal object of section 311 Cr. P.C is to meet ends of justice and to ensure

that no hardship and prejudice is caused to the accused or to the prosecution.

In the aforesaid decision cited on behalf of the petitioners, the jurisdictional

court had allowed the application under section 311 of Cr. P.C filed by

prosecution for admitting a second post-mortem report and to examine the

doctor who conducted the post-mortem. The order was challenged before the

High Court under section 482 of Cr. P.C. where the impugned order was set

aside since trial was pending for almost 16 years and directed that the trial

may be concluded expeditiously. The said order of the High Court was

challenged before the Hon'ble Supreme Court of India where the order passed

by the High Court was quashed and Learned Trial Judge was directed to

proceed in accordance with law and conclude the pending trial at the earliest.

15. In the present case persecution evidence was closed on 11.09.2019 and

after opportunity was given to the accused persons to adduce defence evidence,

hearing of argument was concluded fixing 20.01.2020 for delivery of judgment.

One cannot be oblivious of the fact that when a substantial legal right is

claimed by the litigants, the court has to consider its implication and to

exercise its jurisdiction judiciously for meeting the ends of justice. The

petitioners who during the cross-examination of PW-1 and PW-3 disclosed their

defence case of being at some other place at the time of occurrence, their plea

of alibi needs to be admitted in evidence if they are in a position to adduce

substantive evidence on that count and stand the test of cross-examination.

Denial of such right would lead to miscarriage of justice. However, the

evidentiary value of such evidence and its credibility are different aspects

which shall have to be considered at the time of final adjudication by weighing

the totality of evidence. Therefore, it is appropriate to permit the present

petitioners to adduce evidence under section 311 of the Code of Criminal

Procedure in respect of the document they would like to rely upon and for this

purpose the author of the document should stand the test of cross-

examination.

16. In view of my above discussion I find and hold that impugned order

suffers from illegality and impropriety so far as the exercise of discretionary

power by the jurisdictional court is concerned while dealing with such a vital

question which had been earlier disclose by the petitioners during cross-

examination of PW-1 and PW-3. Learned Jurisdictional court after providing

opportunity to the petitioners to adduce necessary evidence under section 311

of Cr. P.C within a reasonable time shall dispose of the case as early as

possible.

17. The revisional application is accordingly allowed on contest. The

impugned order dated 09.01.2020 passed by Learned Additional Sessions

Judge First Track Court-II, Howrah in S.T. No 205 of 2012 is set aside.

Interlocutory application, being CRAN 2 of 2020 (old CRAN 1261 of 2020) for

extension of interim order stands disposed of. Criminal Section is directed to

send a copy of the Judgment to Learned Additional Sessions Judge First Track

Court-II, Howrah for information and necessary action.

18. Urgent Photostat certified copy of this judgment, be supplied to the

parties, if applied for maintaining all formalities.

(Ananda Kumar Mukherjee, J.)