Jharkhand High Court
Vivek Bouri @ Vivek Kumar Bauri vs The State Of Jharkhand on 17 February, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Revision No. 1277 of 2019
...
Vivek Bouri @ Vivek Kumar Bauri .... Petitioner
-V e r s u s-
1.The State of Jharkhand
2.Kusum Bouri ..... Opposite Parties
...
Coram: HON'BLE MR. JUSTICE AMITAV K. GUPTA
...
For the Petitioner : Mr. Mahesh Tewari, Advocate.
For the State : Ms. Mahua Palit, APP.
For the O.P. No. 2 : Mr. Lalit Yadav, Advocate.
...
04/17.02.2021
1. The instant revision is directed against the order dated
17.09.2019, passed by the court of learned Additional Sessions Judge,
I, Jamtara, in S. T. No. 29 of 2016, rejecting the petition filed under
Section 311 of the Code of Criminal Procedure for recalling and
examining the Investigating Officer for proving the notice dated
6.9.2015 issued under Section 41 (A) of Cr.P.C. issued by the I.O. as
Officer-in charge of Mahila Police Station against the petitioner.
2. Heard the learned counsel for the petitioner and the objection
raised by the learned counsel appearing on behalf of the Opposite
Party No. 2.
At this stage it would be necessary to reiterate that Section 311
of the Code of Criminal Procedure is of wide amplitude and it confers
the power on the Court to summon or recall a witness, or examine any
person and re-examine a witness. It is needless to say that Section 311
Cr.P.C. comprises of two parts. In the first part the power is
discretionary whereas the second part casts a duty and obligation on
the Court to examine or recall and re-examine any witness, in case the
Court is of opinion that such evidence is essential for just decision of
the case.
The settled proposition of law is that while exercising the power
under Section 311 Cr.P.C., a duty is cast on the Court to ensure that in
such exercise of the power, prejudice is not caused to either of the
parties.
3. The object and scope of section 311 Cr.P.C. is to ensure that there
is fair play in the administration of justice which envisages that a fair
opportunity of hearing should be given to the parties and the best
evidence is adduced to enable the Court to ascertain and determine the
truth while deciding the case.
In Rajendra Prasad Vs. Narcotic Cell AIR 1999 SC 2292,
the Apex Court has elaborately discussed the scope and power,
conferred on the Court under Section 311 Cr.P.C. It has been observed
that no party in trial can be foreclosed from correcting errors and if
proper evidence was not adduced or relevant material was not brought
on record due to any inadvertence, the Court should be magnanimous
in permitting such mistakes to be rectified. It has been further held that
function of the Criminal Court is administration of criminal justice and
not to count errors committed by the parties.
4. It is evident from the impugned order that the accused had filed
the petition under section 311 Cr.P.C. at the fag end of the trial to recall
of Investigating Officer for proving the notice dated 06.09.2015 which
was issued to the petitioner by the Investigating Officer in the capacity
of Officer-in charge of Mahila Police Station. The prosecution and
defence had examined and cross-examined the Investigating Officer
whereafter the prosecution evidence was closed and the case was fixed
for argument. It appears from the impugned order that the court below
has rejected the application under Section 311 Cr.P.C. on the sole
ground that the petition was filed at the fag end of the trial. In this
context it is relevant to state that the power under Section 311 can be
invoked by the court at any stage of enquiry or trial, meaning thereby
the power can be exercised even at the stage when the case is fixed for
judgment as the object and scope of section 311 Cr.P.C. is to bring on
record the best available evidence either by the prosecution or the
defence to enable the Court to ascertain the truth, in dispensation of
criminal justice, for just decision of the case.
5. In the instant case the application was filed for
examination of Investigating Officer for proving the notice dated
06.09.15. The case has lingered for more than one year due to
pendency of this revision on the question of recalling and re-
examination of Investigating Officer.
Therefore, in the interest of justice, the order dated-
17.09.2019, passed by the court of learned Additional Sessions Judge,
I, Jamtara, in S. T. No. 29 of 2016 is hereby set aside. The court below
shall summon the Investigating Officer for examining him only on the
question of proving whether the said notice was issued by the I.O.
Considering, the fact, that the petitioner has been lackadaisical in his
approach, accordingly he is directed to deposit a cost of Rs.2,000/-
before the Secretary, District Legal Services Authority, Jamtara. The
court below shall ensure that the Investigating Officer is recalled and
re-examined on or before 22nd March, 2021.
6. With the aforesaid direction, the revision stands allowed to the
extent as indicated above.
(AMITAV K. GUPTA, J.)
APK
