Gauhati High Court
Crl.Pet./561/2021 on 19 January, 2024
GAHC010157572021
IN THE GAUHATI HIGH COURT
(The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)
PRINCIPAL SEAT AT GUWAHATI
Criminal Petition No. 561/2021
1. Ms. Neha Begum,
W/o Abdul Mintu,
2. Chintu Ali @ Abdul Chintu
S/o Babujan Ali,
3. Rohan Ali,
S/o Edrish Ali,
4. Sonu Ali,
S/o Edrish Ali
All are resident of Chaulkhowa Gharbandi Chuk;
P.S. Dibrugarh, Dist.-Dibrugarh, Assam.
......Petitioners.
-Versus-
1. The State of Assam,
represented by the Public Prosecutor,
Assam.
2. Salma Begum,
W/o Md. Yusuf Ali,
R/o Chaulkhowa Gharbandi Chuk;
P.S.& Dist. -Dibrugarh, Assam
......Respondents.
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BEFORE
HON'BLE MR. JUSTICE ROBIN PHUKAN
For the Petitioners :- Mr. S. Dutta
For the State respondent :- R.J. Baruah, Addl. P.P.,
Assam.
For the respondent No.2 :- Mr. D. Borah
Date of Hearing : 09.01.2024
Date of Judgment : 19.01.2024
JUDGMENT & ORDER
Heard Mr. S. Dutta, learned counsel for the petitioners. Also heard
Mr. R.J. Baruah, learned Additional Public Prosecutor, Assam, appearing
for the State respondent No.1 and Mr. D. Borah, learned counsel
appearing for the respondent No.2.
2. Correctness or otherwise of the order, dated 09.03.2021, passed
by the learned Sessions Judge, Dibrugarh, in Sessions Case
No.202/2018, registered under Section 303/34 IPC is challenged in this
petition under Section 482 of the Code of Criminal Procedure, 1973. It
is to be noted here that vide impugned order dated 09.03.2021 the
learned Court below had dismissed the petition No. 1869/2021, filed by
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the petitioners, under sections 231(2)/311 Cr.P.C. for allowing them to
further cross-examine P.W.1, 2, 3, 6, 7 & 8 in the aforementioned case.
3. The background facts leading to filing of the present petition are
briefly stated as under:-
"On 21.09.2018, informant Salma Begum had lodged one FIR
with the Officer-in-Charge, Dibrugarh P.S. to the effect that on
20.09.2018, at about 12.30 pm persons, namely, Mintu Ali, Sonu
Ali, Rohan Ali Rinku Ali, Chintu Ali all are residents of
Chawalkhowa Gharbandi Chowk forcefully entered into her house
and beaten her mercilessly for which she got grievous injuries on
her left hand and head. Upon the said information she had lodged
one FIR with the I/C Gabhrupathar Police Out Post, but, the I/C
did not take the same seriously. Thereafter, on 21.09.2018, at
about 10.30 am while her father Salim Ali went to purchase some
household articles with his Scooty then near the house of Rinku
Ali all the accused persons named above suddenly attack her
father with deadly weapon such as dao and swords as a result of
which her father died on the spot.
Upon the said FIR, the Officer-in-Charge, Dibrugarh P.S. had
registered a case being Dibrugarh P.S. Case No.1498/2018 under
sections 302/34 IPC and thereafter, investigation was carried out,
which culminated in submission of charge-sheet, against the
persons, namely, Mintu Ali, Sonu Ali, Rohan Ali Rinku Ali, Chintu
Ali, Neha Begum and Faizuddin Ahmed. Upon the said charge-
sheet the learned Court below has taken cognizance and issued
process to the accused persons and on appearance of the
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accused persons, the learned Court below has framed charge
against the accused under Section 120B/302/201/109/34 IPC.
Thereafter, the learned Court below has examined as many as 19
prosecution witnesses. Thereafter, the petitioners have changed
their engaged counsel and then on 22.10.2019, the accused
persons have filed a petition for further cross-examination of the
P.W.1, 2, 3, 6, 7 & 8 on the ground that during trial the
petitioners No.2 to 4 all were in jail and their erstwhile counsel
had cross-examined the witnesses without consultation of the
petitioners and as such there was no proper cross-examination
and some material questions were not put and certain facts were
not brought on record in the form of cross-examination. But, the
learned court below had dismissed the same on the ground that
there was no-examination of any witness and as such there can
be no provision for the defence to re-cross-examine the
prosecution witnesses who were cross-examined earlier and that
simply on the change of Advocate and that certain questions were
not put in cross-examination, cannot be the ground to allow
cross-examination."
4. Being aggrieved, the petitioners have approached this Court by
filing the present petition challenging the correctness or otherwise of
the impugned order dated 09.03.2021 on the following grounds:-
(i) That, the impugned order is contrary to the provisions of
law;
(ii) That, the learned court below had ignored the fact that by
dismissing the petition it had caused gross injustice to the
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petitioners as certain materials question could not be put
and certain material facts could not be brought on record;
(iii) That, on mere suspicions the complainant had falsely
implicated the name of the petitioners and detailed cross-
examination was required on this point;
(iv) That, some material questions were not put to the witnesses
during cross-examination and new facts, which were not
mentioned in the FIR and also in the statement under
section 164 Cr.P.C. were brought on record in the
examination in chief;
(v) That, the petitioners were not properly represented by the
previous conducting counsel and as such the petitioners
have suffered irreparable loss;
(vi) That, the previous counsel also failed to cross-examine the
witnesses on the contradiction arising out of statement
before police under sections 161 and 164 Cr.P.C;
5. Mr. Dutta, learned counsel for the petitioner submits that the
impugned order dated 09.03.2021, suffers from manifest illegalities.
Further Mr. Dutta submits that the learned Court below has failed to
invoked the jurisdiction under Section 311 Cr.P.C. and also failed to
appreciate the facts that the earlier counsel for the petitioners had
failed to cross-examine the witnesses on the contradiction arising out of
statement before police under sections 161 and 164 Cr.P.C and also
failed to properly represent the petitioners and that some material
questions were not put to the witnesses during cross-examination and
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new facts, which were not mentioned in the FIR and also in the
statement under section 164 Cr.P.C. were brought on record in the
examination in chief and on such count recalling of the witnesses
mentioned above are very much essential in the interest of justice, and
therefore, it is contended to allow the petition.
6. Whereas, Mr. Baruah, learned Additional Public Prosecutor,
Assam, submits that the impugned order passed by the learned Court
below suffers from no infirmity or illegality and the learned court below
had rightly rejected the petition. Mr. Baruah further submits that the
learned counsel for the petitioners has effectively cross-examined the
witnesses and now it cannot be allowed to fill up the lacuna. Therefore,
Mr. Baruah contended to dismiss the petition.
7. Having heard the submission of learned Advocates of both the
parties, I have carefully gone through the petition and the documents
placed on record and also perused the impugned order dated
09.03.2021, and the scanned copy of the record of learned court below
and the relevant provisions of law.
8. The law regarding invoking of jurisdiction under Section 311
Cr.P.C. is well-settled by Hon'ble Supreme Court in catena of decisions.
In the case of Rajaram Prasad Yadav vs. State of Bihar and
another reported in (2013) 14 SCC 461, Hon'ble Supreme Court,
referring to the earlier decisions, had culled out certain principles which
are to be kept in mind while exercising power under Section 311 CrPC,
and the same are reproduced below:-
"17.2. The exercise of the widest discretionary power under Section
311 CrPC should ensure that the judgment should not be rendered
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on inchoate, inconclusive and speculative presentation of facts, as
thereby the ends of justice would be defeated.
17.3. 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.
17.4. The exercise of power under Section 311 CrPC 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.
17.5. 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.
17.6. The wide discretionary power should be exercised judiciously
and not arbitrarily.
17.7. 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.
***
17.10. Exigency of the situation, fair play and good sense should be
the safeguard, 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.
17.11. 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 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.
***
17.14. The power under Section 311 CrPC 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."
(emphasis supplied)
9. The aforesaid principle is reiterated in the case of Hoffman
Andreas vs. Inspector of Customs, Amritsar reported in (2000)
10 SCC 430:-
"14. ... „6. ... The counsel who was engaged for defending the
appellant had cross-examined the witnesses but he could not
complete the trial because of his death. When the new counsel took
up the matter he would certainly be under the disadvantage that he
could not ascertain from the erstwhile counsel as to the scheme of
the defence strategy which the predeceased advocate had in mind
or as to why he had not put further questions on certain aspects. In
such circumstances, if the new counsel thought to have the
material witnesses further examined the Court could adopt latitude
and a liberal view in the interest of justice, particularly when the
Court has unbridled powers in the matter as enshrined in Section
311 of the Code. After all the trial is basically for the prisoners and
courts should afford the opportunity to them in the fairest manner
possible.‟ (para 6)"
10. Again in the case of State (NCT of Delhi) v. Shiv Kumar
Yadav, (2016) 2 SCC 402, Hon'ble Supreme Court had explained the
said authority by opining thus :
"15. ... While advancement of justice remains the prime object of
law, it cannot be understood that recall can be allowed for the
asking or reasons related to mere convenience. It has normally to
be presumed that the counsel conducting a case is competent
particularly when a counsel is appointed by choice of a litigant.
Taken to its logical end, the principle that a retrial must follow on
every change of a counsel, can have serious consequences on
conduct of trials and the criminal justice system. The witnesses
cannot be expected to face the hardship of appearing in court
repeatedly, particularly in sensitive cases such as the present one.
It can result in undue hardship for the victims, especially so, of
heinous crimes, if they are required to repeatedly appear in court to
face cross-examination."
11. In the case of State of Haryana v. Ram Mehar, reported in
(2016) 8 SCC 762 Hon'ble Supreme Court had held that:
"39. There is a definite purpose in referring to the aforesaid
authorities. We are absolutely conscious about the factual matrix in
the said cases. The observations were made in the context where
examination-in-chief was deferred for quite a long time and the
procrastination ruled as the Monarch. Our reference to the said
authorities should not be construed to mean that Section 311 CrPC
should not be allowed to have its full play. But, a prominent one,
the courts cannot ignore the factual score. Recalling of witnesses as
envisaged under the said statutory provision on the grounds that
accused persons are in custody, the prosecution was allowed to
recall some of its witnesses earlier, the counsel was ill and
magnanimity commands fairness should be shown, we are inclined
to think, are not acceptable in the obtaining factual matrix. The
decisions which have used the words that the court should be
magnanimous, needless to give special emphasis, did not mean to
convey individual generosity or magnanimity which is founded on
any kind of fanciful notion. It has to be applied on the basis of
judicially established and accepted principles. The approach may be
liberal but that does not necessarily mean "the liberal approach"
shall be the rule and all other parameters shall become exceptions.
Recall of some witnesses by the prosecution at one point of time,
can never be ground to entertain a petition by the defence though
no acceptable ground is made out. It is not an arithmetical
distribution. This kind of reasoning can be dangerous.
40. In the case at hand, the prosecution had examined all the
witnesses. The statements of all the accused persons, that is, 148 in
number, had been recorded under Section 313 CrPC. The defence
had examined 15 witnesses. The foundation for recall, as is
evincible from the applications filed, does not even remotely make
out a case that such recalling is necessary for just decision of the
case or to arrive at the truth. The singular ground which
prominently comes to surface is that the earlier counsel who was
engaged by the defence had not put some questions and failed to
put some questions and give certain suggestions. It has come on
record that number of lawyers were engaged by the defence. The
accused persons had engaged counsel of their choice. In such a
situation recalling of witnesses indubitably cannot form the
foundation. If it is accepted as a ground, there would be possibility
of a retrial. There may be an occasion when such a ground may
weigh with the court, but definitely the instant case does not
arouse the judicial conscience within the established norms of
Section 311 CrPC for exercise of such jurisdiction."
12. The proposition of law laid down in the aforesaid cases for
invoking the jurisdiction under Section 311 Cr.P.C. is that the power
under the said section is discretionary and it should 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 is a
part of fair trial and it is a constitutional goal, as well as a human right.
While exercising power the court cannot ignore factual score. Recalling
of witnesses on the grounds that the accused persons are in custody,
the prosecution was allowed to recall some of its witnesses earlier, the
counsel was ill and magnanimity commands fairness should be shown
may not be an acceptable grounds in a given factual matrix.
13. Now, adverting to the factual matrix of the case in hand I find
that the prosecution side has already examined as many as 19
witnesses out of 29 cited witnesses in the charge sheet. It also appears
that the petitioners have effectively cross-examined those witnesses
whom they have prays for recalling. The primary grounds, so assigned
by the petitioners for recalling of the witnesses are that the petitioners
were in jail hazoot during examination of the witnesses and that their
erstwhile engaged counsel had failed to obtain necessary instruction so
as to effectively cross-examine the witnesses on the contradiction
arising out of statement before police under sections 161 and 164
Cr.P.C and also failed to properly represent the petitioners and that
some material questions were not put to the witnesses during cross-
examination and new facts, which were not mentioned in the FIR, and
on such count, according to the petitioners, recalling of the witnesses
mentioned above are very much essential in the interest of justice. But,
the learned court below, vide impugned order, had rejected the same
on the ground that there is no provision for re-cross-examination of the
witnesses, who were already cross-examined earlier and that simply on
the change of Advocate and that certain questions were not put to the
witnesses in cross-examination, cannot be the ground for re-cross-
examination.
14. Having tested the finding of the learned court below on the
touchstone of the principles of recalling the witnesses as laid down in
the case laws discussed herein above, this court is of the view that the
impugned order suffers from no infirmity or illegality requiring any
interference of this court. As held by the learned court below mere
change of Advocate and that some questions were not put in cross-
examination, cannot be the ground for recalling of the witnesses who
have already cross-examined by the counsel for the petitioners who
was engaged on their choice. Thus, this court find no merits in the
grounds assigned by the learned counsel for the petitioners for recalling
the witnesses by exercising the discretionary power.
15. In the result, I find this petition devoid of merit and accordingly
the same stands dismissed leaving the parties to bear their own costs.
Interim order, if any, stands vacated.
JUDGE
Comparing Assistant
