Sanjeev Nanda vs State Of Nct Of Delhi
2007 Latest Caselaw 1106 Del

JUDGMENT

S. Ravindra Bhat, J.

1. This petition challenges an order dated 19.3.2007 by which the Additional Sessions Judge (hereafter referred to as "the trial Court") declined an application by the petitioner, under Section 311 Criminal Procedure Code, (hereafter "the Code") made certain remarks about the conduct of prosecution vis-a-vis exercising power under Section 53 of the Code and exercised the power under Section 311, summoning one Shri Sunil Kulkarni, for examination. The petitioner has impugned the order on the ground that it declined the request for recall of the 9 witnesses sought for, as in the overall circumstances of the case would cause prejudice; he also claims to be aggrieved by the observations of the trial Court, suggestive of various courses of action available with the prosecution, to compel him to give blood samples.

2. The petition was heard by another bench (Chaturvedi, J) on 28th March, 2007, 3rd April, 2007, 18th April, 2007 and 23rd April, 2007. Notice was issued, on 25th April, 2007, and the matter was fixed for hearing on 9th May, 2007. On that latter day, the case was listed before Khetrapal, J, who renotified the matter to 10th May, 2007. On 10th May, 2007, the said learned judge recused hereself and stated that she could not hear the petition; it was accordingly listed before this bench on 11th May, 2007. On that day, counsel expressed that there was urgency in the case, since the trial court had fixed the case for 14th May, 2007, to record the evidence of the newly summoned witness. The court, after hearing parties, declined stay, but asked the trial court to proceed and record the examination in chief of Shri Kulkarni, even while deferring the cross examination. The case was later listed on 25th May, 2007. On that date, arguments were heard in part; the hearing was concluded yesterday evening. The present judgment is delivered in view of the fact that the trial court is to proceed with the matter today.

3. In this case the petitioner, accused of having committed offences, inter alia, punishable under Section 304 Indian Penal Code (IPC) on 10.1.1999, was charged with the offence by an order dated 3.8.1999. Learned Senior Counsel Sh. R.K. Anand took me through copies of some of the orders of this Court as well as the trial Court, made at various stages. The recording of prosecution evidence commenced on 18.8.1999 and was adjourned to 30.8.1999. In the meanwhile, the matter was fixed for consideration of an application by the petitioner on 21.9.1999. On 30.8.1999 the request of the prosecution to defer examination of a public witness was declined; accordingly PW-1 Manoj Malik was examined and cross-examined. At that stage PW Sunil Kulkarni had not been served. The other public witnesses were bound down to the next date of hearing i.e. 13.9.1999. In the meanwhile, this Court which was seized of Crl.M(M) 2306/1999 i.e bail matter of the petitioner, adjourned the matter on 7.9.1999 to 21.9.1999, in the light of the previous order of the trial Court. It was contended that on 13.9.1999 the matter was again listed before the trial Court. Counsel relied on the order and submitted that Sunil Kulkarni the witness was present before the Court on that date. It was submitted that the said witness was represented by senior counsel and had alleged harassment by the police. The case was renotified to 23.9.1999 by the trial Court, which proceeded to bind down the witness. In the meanwhile, the bail application of the petitioner was again deferred to 24.9.1999 by this Court. Counsel contended that the trial Court again deferred the matter at the request of the prosecution, to 30.9.1999. All the while, the petitioner was in custody.

4. Mr. R.K. Anand, learned senior counsel submitted that on 30.9.1999, the prosecution/State, through Special Public Prosecutor sought leave of the Court to give up the said witness, Sunil Kulkarni. He strongly relied on this order and submitted that the matter was proceeded with thereafter and the evidence on behalf of the prosecution was eventually concluded on 22.8.2003. The petitioner was examined under Section 313 and even the list of defense witnesses was furnished. In these circumstances, the impugned order so far as it directed examination of Suni Kulkarni, was unsustainable.

5. Learned senior counsel relied upon the judgments of the Supreme Court reported as Mohan Lal Shyamji Soni v. Union of India 1991 SCC (Cr) 595, Hindustan Construction Co. v. Gopal Krishna , Nissar Khan v. State of Uttaranchal and Satyajit Banerjee v. State of West Bengal . It was submitted that in these decisions the Supreme Court had consistently ruled that although the powers under Section 311 Cr.P.C. are of the widest amplitude, yet they have to be exercised with great caution, and for justifiable reasons.

6. Learned Counsel submitted that the Supreme Court had in the two decisions cited, held that permitting recall, or fresh examination, of witness not examined earlier, after completion of the prosecution witness or at a later stage, without any rationale, would amount to review or recall of the previous orders, which is barred in terms of Section 362 Cr.P.C. It was submitted that having exercised their choice of not examining Sunil Kulkarni more than seven years ago, it was not open for the prosecution to suggest to the trial Court to accept to such course. In any case, the interests of justice did not warrant it; the petitioner accused could be gravely prejudice on account of the impugned order directing the examination of Sunil Kulkarni. It was submitted that the witness was unreliable.

7. Learned Counsel submitted that the prosecution had on an earlier occasion moved the trial Court for exercising its powers under Section 53 Cr.P.C. That application was disposed off on 19.7.2006. The court had then held as follows:

I am of the opinion that a scientific investigation does not cause any prejudice to any party. However, at the same time, I am of the opinion that the investigating agency does not require any direction from the court for taking blood sample of accused Sanjeev. The Investigating Officer is fully empowered to do so Under Section 173(8) Cr.P.C. even during the pendency of the trial. It is for the investigating agency to exercise its powers Under Section 53 Cr.P.C. if they deem it fit to further investigate the case Under Section 173(8) Cr.P.C. The application is decided accordingly. The case is already fixed for defense evidence.

To come up for defense evidence on 24.8.06. If the IO makes any investigation regarding taking of blood sample of accused Sanjeev Nanda, the prosecution shall make endeavor to file this report before the next date along with the copies be supplied to the accused.

8. In these circumstances, the impugned order virtually amounted to a review and recall of that opinion to the grave prejudice of the petitioner. Learned Counsel relied upon the judgment of the Supreme Court reported as Sharda v. Dharampal and Thogorani v. State of Orissa 2004 Crl.LJ 4003 to say that for the proposition that no one can be compelled to give sample for blood analysis. It was submitted that in these circumstances, the observations of the Court, particularly in Para 15 directing the prosecution virtually to adopt a particular course of action was unwarranted. It was submitted that the law as it stands does not authorize the Court to compel an accused standing trial to give blood samples. In these circumstances, the impugned order to the extent it directed the prosecution to proceed in a particular manner gravely prejudicded the conduct of defense of the accused. Counsel also submitted that a blood sample had indeed been secured in the earlier course of the proceedings and there was no fresh circumstance, after seven long years necessitating a different view that fresh samples were required for analysis. These did not constitute new or fresh materials or circumstances.

9. Counsel lastly submitted that the Court should not have disallowed the petitioner's application for recall and cross examination of the 9 prosecution witnesses. It was submitted that a fair reading of the order would show that the prosecution's earlier request under Section 53 was declined. Thereafter the petitioner was asked to submit blood samples, in a so-called exercise under Section 173(8) of the Criminal Procedure Code. However, that was not done. Therefore, the supplementary charge sheet was filed on 3.9.2006. The occasion to cross-examine those witnesses therefore arose after that date in the light of the prosecution action asking the petitioner to furnish blood samples, which could well lead to adverse inference. It was submitted that declining the application under Section 311, moved by the petitionr was fraught with prejudice as many questions that had not been suggested or the circumstances put, to the concerned witnesses, were on the basis of the then existing material, ie the fact that nothing connected the petitioner with the so-called samples found at the site. Now that there was a real likelihood of the petitioner suffering on account of an adverve inference due to his refusal to submit samples, denial of such opportunity irreparably prejudiced him.

10. The petition was opposed by learned Special Public Prosecutor, Shri I.U. Khan, senior counsel. He contended that the power under Section 311 to examine a witness whose deposition is deemed necessary, is not bounded by any limination. The Special Public Prosecutor contended that this view is reinforced by use of the expression, "at any stage" occurring in Section 311. It was urged that the underlying or guiding principle, is the necessity of the Court to arrive at the truth, to secure the ends of justice. Learned Counsel relied upon the judgments of the Supreme Court reported as Jamatraj Kewalji Govani v. State of Maharastra and Rajendra Prasad v. Narcotic Cell , Zahira Habibullah Sheikh (5) v. State of Gujarat , and U.T. of Dadra and Nagar Haveli v. Fatehsinh Mohansinh Chauhan .

11. Learned Counsel read the impugned order and submitted that the Court did not exercise the power under Section 311 to examine Sh. Kulkarni at the behest of the prosecution; it did so on its own assessment of all the factors. There was nothing in law which inhibited this, as the Court did so in the exercise of its discretion. Counsel submitted that the previous order of 30.9.1999 where the witness had been given up by the prosecution, merely recorded a statement. It did not "give up" or exercise independent choice in that regard and overrule the necessity of examining such witness. Counsel also submitted that the decisions of the Supreme Court cited establish that witnesses given up or dropped at earliest stages can be recalled or summoned as the case may be to depose during a later stage in the proceeding, for just decision of the case.

12. Learned Special Public Prosecutor further submitted that the Court could, if it was of the opinion that there was a need to do so, exercise the power under Section 53 Cr.P.C. as regard the blood samples. He also submitted that this power is supplemented with the power under Section 165 of the Evidence Act. He relied upon the judgment reported as Zahira Habibulla H. Sheikh v. State of Gujarat AIR 2004 SC 3114, to say that a joint exercise of Section 311 and 165 could achieve the same purpose. He relied upon the judgment of Orissa High Court in Thogorani v. State of Orissa 2004 Crl LJ 4003, to say that the court can exercise its powers under Section 53. It was lastly submitted that the application of the petitioner, for recall of 9 prosecution witnesses was unwarranted and not justified in the peculiar circumstances of the case. It was contended that the depositions of those witnesses were completely unrelated to the question of drawing of the blood samples or its testing. Hence permitting of all or even some of them to be recalled would be delaying the matter and ultimately defeat the ends of justice.

13. In the light of the above, the following questions arise for consideration:

(1). Whether in the circumstances of the case, the Court was justified in summoning Shri Sunil Kulkarni under Section 311 of the Code;

(2) Whether the observations and directions in regard to securing blood samples, are sustainable and

(3) Whether the Court was justified in declining the application of the petitioner for recall of nine prosecution witnesses examined earlier.

14. As far as this question is concerned, the undisputed material facts are that after citing Sunil Kulkarni as a witness, and securing his presence, in the early stages of the proceeding, when depositions of the other witnesses were recorded, he was consciously given up; the court recorded the statement in that regard on 30-9-1999. In these circumstances, the question which arises is whether the impugned order, summoning him for examination, suffers from any vice, or illegality.

15. The petitioner had placed reliance on the decisions of the Supreme Court in Mohan Lal Shyamji Soni v. Union of India 1991 SCC (Cr) 595, Hindustan Construction Co. v. Gopal Krishna , Nissar Khan v. State of Uttaranchal and Satyajit Banerjee v. State of West Bengal . It was contended that these decisions have conclusively ruled that the courts cannot seek recourse to Section 311 in respect of witnesses who had been given up, or in respect of whom earlier applications were rejected. It was contended that allowing later applications, or summoning such witnesses at later stage, would amount to review or recall of the earlier orders, which is clearly impermissible. Section 311 cannot be used to cure lacunae in the prosecution. Reliance was also placed on the decision in P.N. Thakershi v. Pradyuman Singhji , Omkar Singh v. State 1988 (2) Crimes 696 and Shridhar Waman Surushe v. State of Maharastra 1987(2) Crimes 536.

16. On the other hand, the prosecution contended that a textual reading of Section 311 does not justify any limitation upon the power of the court, inhibiting it from summoning anyone to depose in the proceeding, for arriving at a just decision. The paramount consideration is always a quest for truth. Counsel submitted that even if the prosecution rules out examination of anyone at an earlier stage, the court's power to summon and examine, or re-examine him, for cross examination, is not curtailed. It was contended that reference to finality under Section 362 is not appropriate, since the provision operates only in the case of "judgment or final order disposing of a case." In this case, the earlier order neither was a judgment, nor did it dispose of the case; it merely recorded the court's order to summon and examine a witness. The court was not going back on any order or recalling its view.

17. Section 311 of the Code reads as follows:

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.

18. Section 540 of the old Criminal Procedure Code, 1898 was a precursor to Section 311. It was cast in identical terms. In one of the earliest decisions, i.e Jamatraj Kewalji Govani v. State of Maharashtra AIR 1968 SC 178, the Supreme Court, while interpreting it, held as follows:

Section 540 is intended to be wide as the repeated use of the word 'any' throughout its length clearly indicates. The section is in two parts. The first part gives a discretionary power but the latter part is mandatory. The use of the word 'may' in the first part and of the word 'shall' in the second firmly establishes this difference. Under the first part, which is permissive, the court may act in one of three ways: (a) summon any person as a witness, (b) examine any person present in court although not summoned, and (c) recall or re-examine a witness already examined. The second part is obligatory and compels the Court to act in these three ways or any one of them, if the just decision of the case demands it. As the section stands there is no limitation on the power of the Court arising from the stage to which the trial may have reached, provided the Court is bona fide of the opinion that for the just decision of the case, the step must be taken. It is clear that the requirement of just decision of the case does not limit the action to something in the interest of the accused only.

19. In U.T. of Dadra and Nagar Haveli v. Fatehsinh Mohansinh Chauhan , the Supreme Court, after considering the earlier judgments in Jamatraj Kewalji Govani v. State of Maharastra and Rajendra Prasad v. Narcotic Cell , held as follows:

A conspectus of authorities referred to above would show that the principle is well settled that 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 of such facts which lead to a just and correct decision of the case, this being the primary duty of a criminal court. Calling a witness or re- examining a witness already examined for the purpose of finding out the truth in order to enable the Court to arrive at a just decision of the case cannot be dubbed as "filling in a lacuna in 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.

In Zahira Habibullah Sheikh (5) v. State of Gujarat , it was held by the Supreme Court that:

The object of Section 311 is to bring on record evidence not only from the point of view of the accused and the prosecution but also from the point of view of the orderly society. If a witness called by the court gives evidence against the complainant, he should be allowed an opportunity to cross-examine. The right to cross-examine a witness who is called by a court arises not under the provisions of Section 311, but under the Evidence Act which gives a party the right to cross-examine a witness who is not his own witness. Since a witness summoned by the court could not be termed a witness of any particular party, the court should give the right of cross-examination to the complainant. These aspects were highlighted in Jamatraj Kewalji Govani v. State of Maharashtra .

30. Right from the inception of the judicial system it has been accepted that discovery, vindication and establishment of truth are the main purposes underlying the existence of the courts of justice. The operative principles for a fair trial permeate the common law in both civil and criminal contexts. Application of these principles involves a delicate judicial balancing of competing interests in a criminal trial: the interests of the accused and the public and to a great extent that of the victim have to be weighed not losing sight of the public interest involved in the prosecution of persons who commit offences.

20. An overview of the case law would show that though courts are alive as to the stage of the trial, and as to whether the prosecution or the party seeking recourse to Section 311 had earlier examined, or cross examined the witness, and the likelihood of its being used to fill the lacunae in the case, yet, in the ultimate analysis, there is no limitation on the power of the Court, vis-a-vis the stage to which the trial may have reached, if the Court is bona fide forms an opinion that for a just decision of the case, recourse to Section 311 must be taken. It is clear that the requirement of a "just decision" of the case does not limit the action to something in the interest of the any one party. As far as the question whether the order summoning Kulkarni amounting to review is concerned, Section 362, in terms cannot apply; it adverts to the final stage, as can be seen by reference to "final order" and "judgment". Further, the court had, on 30-9-1999 recorded the prosecution's option giving up Kulkarni. That cannot mean that there was some impediment, or estoppel, inhibiting the court's exercising its power; the impugned order most certainly cannot be read as made otherwise than in bona fide exercise of such power. Consequently, I find no infirmity with the order, so far as examination of Kulkarni is concerned. Its order cannot be characterized as injudicious or arbitrary. The petitioner's contentions have to fail, on this score.

21. The facts as far as this question is concerned are that at the early stages of investigation, the blood sample of the accused petitioner was obtained. However, for some reason, the prosecution could not use it. Therefore, on 26.7.06 and 6-8-2006, notices were issued by the investigation officer, reaquiring the petitioner to give blood samples. He resisted the demands, through counsel's letters, dated 27-7-06 and 10-8-2006. In the circumstances, the IO filed a supplementary challan, on 3-9-2006, in terms of Section 173(8). The operative part of the challan/ supplementary report, reads as follows:

...In this way accused has deliberately disobeyed the three notices sent to him in light of the order dated 19.7.2006 of the court and he has done so fully knowing that the steering wheel of his car and his clothes were smeared with his own blood. In these circumstances in interest of justice, the Hon'ble Court is required that a presumption be raised against the accused that his blood group is B as accused has deliberately refused to give his sample of his blood....

SHO/Lodhi Colony Dt. 3.9.2006

22. The trial court, after recording the circumstances where the notices were issued, its previous order dated 19-7-2006, and the supplementary report/ challan dated 3-9-2006, held that:

11. A perusal of the above provision shows that a Doctor at the request of the Investigating Officer can use sufficient force to take blood sample of an accused. In the present case, unfortunately the Investigating Officer was more interested in doing the paper work and was shirking to use his powers under Section 53 Cr.P.C. The entire proceedings also make amply clear that the accused did not cooperate with the Investigating Agency. Despite directions of the Investigating Officer he did not appear in the Police Station to give his blood sample. I am not incline to believe that the Investigating Officer is not aware about Section 174/184/188 IPC which make it punishable of a person does not attend at a certain place and time in obedience to summon/order of a public servant. If a person does not assist a public servant or if such person disobeys the order of public servant.

12. Further more the State had another remedy to compel the accused to cooperate with the investigation. This remedy is moving an application for cancellation of bail of accused Sanjeev Nanda. But investigating agency and the prosecution did not make any effort to compel the cooperating of the accused in investigation.

13. Therefore, I am of the opinion that the prosecution and the Investigating Officer are shirking their responsibility. The powers of the court to order an accused to give his blood sample are not in dispute. However, the court would use this power only as a last resort. But the best course would be that the Investigating Officer and the prosecution do their work without fear and without favor.

The prosecution wants this Court to use his powers. But this Court would use its powers provided the prosecution admits following things:

1. That either the Investigating Officer is incompetent to use his powers under Section 53 Cr.P.C.

2. Or the Investigating Officer is afraid to lay hands upon the accused for any reason.

3. Or the Investigating Officer is mixed with the accused persons.

14. How the Investigating Officer had been shirking to exercise the powers can be seen from the fact that when police came to know that one Ms. Sonali Nanda the sister of accused Sanjeev Nanda was the owner of the offending vehicle i.e. The BL/MW Card No. M 312 PW 58 Sub. Inspector Kailash Chand issued a notice under Section 133 of Motor Vehicle Act Ex. PW 58/D in which it was asked as to who was driving the offending vehicle i.e. BMW Car in question at the time of offence. Ms. Sonali Nanda refused to accept the said notice. On this refusal by Ms. Sonali Nanda, SI Hulas Giri prepared a Kalandara under Section 5/131 and 133/179 M.V. Act Ext Pw 60/S. However, instead of filing the said Kalandara in the Court of concerned Metropolitan Magistrate, he annexed the same with the present challan and thereby Ld. Metropolitan Magistrate never got an opportunity to take cognizance of the offence and Ms. Sonali Nanda was never prosecuted. Perusal of this Kalandara would show that SI Hulas Giri has not added Section 179 IPC in the Kalandara which is punishable for imprisonment up to six months if a person refuses to answer any question to public servant who is authorized to ask such questions.

15. In view of the apparent laxity of the investigators in using all the tools at their disposal to secure the desired blood sample, this Court shall not remain oblivious to the powers it itself possesses to secure the compliance of the accused. These powers shall be exercised in full measure by this Court in case the above stated query of the court are not met by the prosecution satisfactorily. This application is disposed of accordingly.

23. Before proceeding with the discussion on this question, it would be necessary to reproduce Section 53 of the Code, which is in the following terms:

53. EXAMINATION OF ACCUSED BY MEDICAL PRACTITIONER AT THE REQUEST OF POLICE OFFICER.

(1) When a person is arrested on charge of committing an offence of such a nature and alleged to have been committed under such circumstances that there are reasonable grounds for believing that an examination of his person will afford evidence as to the commission of an offence, it shall be lawful for a registered medical practitioner, acting at the request of a police officer not below the rank of sub-inspector, and for any person acting in good faith in his aid and under his direction, to make such an examination of the person arrested as is reasonably necessary in order to ascertain the facts which may afford such evidence, and to use such force as is reasonably necessary for that purpose.

(2) Whenever the person of a female is to be examined under this section, the examination shall be made only by, or under the supervision of, a female registered medical practitioner.

(Explanation.-In this section and in Sections 53 and 54,-

(a) "examination" shall include the examination of blood, blood stains, semen, swabs in case of sexual offences, sputum and sweat, hair samples and finger nail clippings by the use of modern and scientific techniques including DNA profiling and such other tests which the registered medical practitioner thinks necessary in a particular case;

(b) "registered medical practitioner" means a medical practitioner who possess any medical qualification as defined in Clause (h) of Section 2 of the Indian Medical Council Act, 1956(102 of 1956) and whose name has been entered in a State Medical Register.)

[The explanation was substituted in 2005. Prior to the amendment in 2005, the Explanation read as follows:

Explanation : In this section and in Section 54, "registered medical practitioner" means a medical practitioner who possesses any recognized medical qualification as defined in Clause (h) of Section 2 of the Indian Medical Council Act, 1956 (102 of 1956), and whose name has been entered in a State Medical Register."]

24. The judgments reported as Anil Anantrao Lokhande v. The State of Maharastra 1981 Cr. LJ 125; Jamshed v. State of UP 1976 Cr LJ 1680; Swati Lodha v. State of Rajasthan 1991 Cr.LJ 939 have held that an accused can be asked to give blood sample by the court, in the course of an inquiry or trial. It has also been held that even an accused on bail would fall within the mischief of that provision; the court has powers to require submission of such samples. In Thogirani's case (supra) it was held that though Section 53 of the Code refers to examination of the accused by a medical practitioner, at the request of a police officer, there is no reason why the Court should not have a wider power for the purpose of doing justice in criminal cases by issuing a direction to the police officer to collect blood sample from the accused and conduct DNA test.

25. In this case, the prosecution's earlier request was turned down and the court chided it to use its powers independently. The prosecution did so; its effort was unsuccessful; the accused petitioner did not give any blood sample. In the circumstances, the court launched a tirade against the prosecution, by stating that its request was virtually a non-starter. The court even went so far as to observe as follows:

...this Court would use its powers provided the prosecution admits following things:

1. That either the Investigating Officer is incompetent to use his powers under Section 534 Cr.P.C.

2. Or the Investigating Officer is afraid to lay hands upon the accused for any reason. 3.Or the Investigating Officer is mixed with the accused persons.

26. In the earlier part of the order, the court advised the prosecution to use its power to seek cancellation of bail of the petitioner. To put it mildly, these observations were not only strong; they were utterly uncalled for. The court has not noted the background, when the blood sample had been procured previously. It saw the effort of the prosecution to secure the sample, by issuance of the two notices. In the circumstances, damning the prosecution was utterly unwarranted. It has been held by the Supreme Court that a criminal court cannot impinge upon jurisdiction of the investigating agency or the prosecution, by compelling them to change their opinion, or act in a manner dictated by it, i.e the court. ( Ref M.C. Abraham v. State of Maharashtra ). Furthermore, the court overlooked the previous circumstances, whereby samples had been given.

27. In the judgment of this Court, reported as Ajay Kumar v. State 1986 Crl LJ 932, the court, commenting on the impartial role of the public prosecutor particularly a special public prosecutor appointed to conduct the criminal proceedings in that case, held as follows:

The public prosecutor is a functionary of the State appointed to assist the Court in the conduct of a trial, the object of which is basically to find the truth and to punish the accused if he is found guilty according to the known norms of law and procedure. It is no part of his obligation to secure conviction of an accused, in any event, or at all costs. Nor is he intended to play a partial role or become party to the persecution of the accused or lend support, directly or indirectly, to a denial of justice or of fair trial to the accused. His plain task is to represent the State's point of view on the basis of the material which could be legitimately brought before the Court at the trial. If all State actions must be just, fair and reasonable, he would be under no less duty as a functionary of the State to discharge his functions as a public prosecutor in an equally just, fair and reasonable manner irrespective of the outcome of the trial. In that sense, he is part of the judicature system, and an upright public prosecutor has no friends and foes in Court. He has no prejudices, preconceived notions, bias, hostility or his own axe to grind. He represents public interest, but is not a partisan in the narrow sense of the term.

16. Is the position of a public prosecutor any different than of counsel, who appear for parties in a Court of law. The answer is both in the affirmative and the negative. An advocate of the Court is in theory an officer of the Court and whatever be the side he is engaged to represent he has his higher duty to the Court in assisting the Court in finding out the truth and in placing before the Court the point of view of his client honestly and fairly and to desist from making any misrepresentation or attempt to mislead the Court. The advocate's duty to the Court transcends the limited and narrow loyalty to the client, who engages him to protect his interest. Every advocate, therefore, has a dual capacity. He represents his client but that does not dilute his higher duty to the Court. He is, however, partisan counsel in a sense not only because he is paid for the work by the client but also because an advocate, in actual practice, does not necessarily conform to the noble theory by which his conduct is sought to be disciplined. The duty of an ordinary advocate and a public prosecutor are, therefore, co-extensive to the extent that both have a common duty to the Court and must, therefore, place their respective points of view before the Court in a fair and reasonable manner but the similarity ends there. A public prosecutor has no client or constituency apart from the State and State is not a party like any other party. He is not paid by an individual who may be aggrieved or by the accused who is on trial. He, therefore, does not have the disability of a dual personality, which is certainly true of an ordinary advocate, who is torn, in the thick of his practice in Court, between the wider loyalty to public interest, to the Court system, claim of straight and rigid adherence to truth and discipline on the one hand, and his narrow, as also monetary, association with the individual litigant or the institution, whom he represents on the other. An advocate-client relationship introduces a personal element from which the public prosecutor must be considered immune. He is above the personal loyalty. He does not have a dual capacity.

17. Is the position of a public prosecutor any different merely because he is not the ordinary functionary of the State, but has been supplanted either at the instance of an aggrieved party, or a feuding faction, or even if appointed independently of the aggrieved party had prior association with the party, and has been amply rewarded by it, as in the present case ? Can such a public prosecutor be said to be as well insulated against pressure of an aggrieved party as an ordinary public prosecutor would be or is at least expected to be but, what is more important, would his background not give the appearance of partiality or generate an apprehension of hostility in an impartial observer of the scene, as indeed, in the accused, who is so vitally interested in the fairness of a trial ? Would this feature of the public prosecutor be capable of vitiating the trial or create an atmosphere which may smack of likelihood of or reasonable probability of bias. In seeking answers to these questions, it is necessary to keep in mind the clear distinction between the "reality" of a fair trial and the "appearance" that it is just, fair and reasonable. The concept of equality before the law and equal protection of the laws is in practice fairly diluted when it comes to the right of representation in a Court of law. Money and influence do play more than their due roles. The decision of a cause in a Court of law is essentially determined by the law, as indeed, the facts of the case. Nevertheless, where an overburdened special public prosecutor is pitched against eminent, competent, and influential members of the bar with better training, specialised skills, able research and other faculties and aids, the fight cannot but be described as unequal. What makes the position worse, is the declining moral standards of some of the services. There is, therefore, a wide feeling among the public that the representation for the State is comparatively less effective and may also be easily tampered with through a variety of nefarious influences. If in that kind of an environment and influential or well-to-do aggrieved family feels impelled to engage a counsel of their own choice in whose competence and probity they have full faith and approach the State to engage such a counsel without any burden on the exchequer, it would be difficult to fault such an appointment even though one may not be happy that the State is unable to pay for proper legal services. The accused is no doubt vitally interested in the trial for it may result not only in his condemnation but even of deprivation of his freedom. The accused and the victim are not at par and criminal trial is not a forum for personal vengeance. It is essentially a State action to punish crime. There is, therefore, no other party involved but with all the concern for a fair trial and humane and civilised conditions in which the accused is treated, both during the investigation, in the course of trial, and after conviction, it is difficult to ignore the claim of the victims or of the aggrieved party to ensure that the crime is detected, properly investigated, and the accused is effectively tried, and suitably punished. A fair trial does not necessarily mean that it must be fair only to the accused. It must be fair to the victim also. It must be fair for all. A fair trial is a concept which is much higher than the claims or ends of parties to it. If the accused has a right to counsel of his choice why should not the victims of the crime be entitled to a say in the matter of representation of the State at the trial. The motive of the State and of the victim may be different but the object is common. Moreover a party's counsel, who is engaged by the State at the cost of the aggrieved party is equally bound by the higher duty to the Court as also to his discipline as an advocate, and is expected to rise to the occasion and discharge his duties as a just and fair public prosecutor unmindful of the source from which the funds are made available for payment to him. The material placed on record by the investigating agency places its own limitations on such a public prosecutor should he nevertheless carry a prejudice or a bias. Above all, there is institutional safeguard against any prejudice or bias or any vitiating elements flowing from such a public prosecutor or his association with a party or a faction in the judicial duty to sift the material and provide the necessary insulatory cover against any irrelevant, improper influencing of the trial. While there is no doubt that the association of such public prosecutor may perhaps disturb or dislodge the appearance of a fair trial or create a reasonable apprehension in the mind of the accused that with a hostile and partisan counsel in the garb of special public prosecutor he would perhaps be denied justice, or that trial would neither be just nor reasonable. But such fear must not be allowed to blur the judicial mind because of the institutional safeguard. It follows, therefore, that the appointment of party's counsel as a special public prosecutor does not by itself militate against the principle that State action must be just, fair and reasonable, and would not, without anything more, either vitiate a trial or deprive the trial for that reason alone of the appearance of a fair trial.

28. Nothing was brought to the notice of the court that in the conduct of the proceedings all these years, the prosecution was lax, as regards the specific issue of drawing blood samples. The virtual tirade against the investigating officer, and the prosecution, even after conceding that the court had the power to issue appropriate orders, under Section 53, was utterly unwarranted. In these circumstances, the observations in paras 11 to 15 of the impugned order are set aside. The necessary corollary is that the parties would be heard on the question of exercise of power by the court, which shall consider the record, and pass appropriate orders in accordance with law.

29. This question concerns the recall, under Section 311, for further cross examination of PW 29 Sh. NK Wadhera, Finger Print Expert, PW 31 D.S. Chakotra, Sr. Scientific Officer, PW 60 SI Ulhas Giri, PW 32 HC Jagbir Singh, PW 58 SI Kailash Chand, PW 10 Dr. T. Milton PW 154 Devender Singh, PW 28 Sh. Rajender Keshav Mechanical Inspector, PW 55 Inspector Bimlesh Yadav. The court dealt with this request in the following manner:

As per prosecution, PW 31 Dr. D.S. Chakotra, Senior Scientific Officer had inspected the BMW Car in Police Station on 11.01.1999 at the request of SHO Police Station Lodhi Colony. He lifted the blood stains from the steering of the car. The same were sealed in a pulanda and kept in the police station. On 11.01.1999 itself PW 58 SI Kailash Chand recovered the jersey and jeans of Sanjeev Nanda and kept in a pulanada and thereafter the same were duly sealed with the seal of KC. The blood samples and clothes were sent to the scientific laboratory for examination. As per the FSL report both reports the blood on steering wheel and on the clothes of Sanjeev Nanda were of human origin and were of B group as per the FSL report Ex. PW 31/D. Therefore, during the trial this fact was very much in the notice of the accused that the blood on steering wheel and on the clothes of accused Sanjeev Nanda were sent for analyses and for comparison. Therefore, there was occasion for cross examination of the relevant witnesses on the point as to whether the pulandas or the scals thereon remained in tact and untempered. Despite the opportunity given, this testimony was not challenged. Therefore, the accused/applicant Sanjeev Nanda cannot take a new defense that the scals on the sample and the pulandas were tempered with.

21. It is further argued by Ld. defense Counsel that he wants to call PW 14 Shri Devender Singh Assistant Foreman, IP Depot, DTC New Delhi who conducted the mechanical inspection of BMW car and PW 28 Rajender Keshav the Managing Director Keshav Motors, who also carried out the mechanical of the vehicle. Both the witnesses have been duly cross examined by ld. defense Counsel. If Ld. defense Counsel wants to prove that due to the facility of air bag on the screening wheel in BMW car, it is not possible mouth of the driver of the vehicle would hit the steering wheel. I am of the opinion that in order to prove this fact, Ld. defense Counsel should call a qualified Engineer/Mechanic from the company which manufactures the BMW car in defense evidence.

30. The argument of prejudice made on behalf of the petitioner was that when cross examination of these witnesses was concluded, there was no material to connect him with the blood samples recovered; the report of blood sample taken from him did not establish anything unfavorable to him. Therefore, if, at a later stage, the court, acting on the basis of the request declined by him (to furnish blood samples) is to draw adverse inference, he would be prejudiced, as the circumstances relating to existence, recovery of blood stains and their being sent for examination cannot be tested in cross examination. There can be two opinions about this, as the petitioner had undoubtedly given his blood sample for testing earlier and his refusal to do so now, may not be logical. His refusal could amount to electing a conscious decision. On the other hand, if he refuses, and adverse inference is to be drawn at a later stage, there would be no further occasion to him to cross examine these witnesses who had spoken about the blood, its recovery and transmission for analysis, etc.

31. I am of the opinion that in view of the trial court's manner of disposal of the request of the prosecution under Section 53, the further consideration of the accused's application under Section 311, for the same reasons has to be considered afresh. It would therefore be appropriate that the parties are heard again on both the questions, and a suitable order issued, having regard to all the contentions raised. This course is necessary because the trial court is seized of the record, and is in a best position to judge whether and if, the request for further cross examination of all or any of the said 9 witnesses is justified, in the light of the orders to be made by it, pursuant to the present limited remand.

32. In the light of the above discussion, this revision has to partly succeed. The trial court shall hear the application of the prosecution, under Section 53, afresh, along with the application of the petitioner under Section 311. It shall decide both the applications having regard to the nature of directions it chooses to make, and its likely impact upon the accused petitioner, from the standpoint of prejudice. The order shall be a reasoned one, noticing all the contentions raised, and shall be made within two months from today. In the event the court decides to permit further cross examination, at request of the petitioner, it shall do so in a time bound manner. The observations against the prosecution, made in the order, shall be treated as expunged. As regards the summoning of Shri Kulkarni is concerned, I find no infirmity with the impugned order; the trial court shall permit cross examination of that witness.

33. Nothing stated in this order shall be construed as an expression on the merits of the point on which remand has been directed. Parties shall appear before the trial court today. The CRL.M.C. 1035/07 and CR.M 3562/2007 are disposed in the above terms. No costs.

Order dusty under the signatures of the Court Master.