Jharkhand High Court

Tauhid Ansari vs The State Of Jharkhand on 6 July, 2021

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            IN THE HIGH COURT OF JHARKHAND, RANCHI
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Cr.M.P. No. 1132 of 2020

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1.Tauhid Ansari, aged 30 years

2.Taufique Ansari, aged 39 years Both are s/o Reyasat Ansari, Both r/o Village-Manpur, P.O.+P.S.-Ranka and District-Garhwa ..... Petitioners

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The State of Jharkhand ...... Opposite Party

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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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For the Petitioners :- Mr. Gopal Krishna Sinha, Advocate For the State :- Mrs. Vandana Bharti, APP For the O.P.No.2 :- Mr. A.K. Rashidi, Advocate

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4/06.07.2021 Heard Mr. Gopal Krishna Sinha, the learned counsel for the

petitioners, Mrs. Vandana Bharti, the learned State counsel and Mr. A.K.

Rashidi, the learned counsel appearing on behalf of the O.P.No.2.

2. This petition has been heard through Video Conferencing in

view of the guidelines of the High Court taking into account the situation

arising due to COVID-19 pandemic. None of the parties have complained

about any technical snag of audio-video and with their consent this

matter has been heard.

3. The petitioners have filed this petition to challenge the

order dated 02.03.2020 passed in S.T. Case No.247 of 2017 arising out of

Ranka P.S.Case No.39 of 2017, corresponding to G.R.Case No.649 of

2017 whereby the court below had allowed the petition dated 19.02.2020

under section 311 Cr.P.C.

4. Mr. Gopal Krishna Sinha, the learned counsel appearing on

behalf of the petitioners challenged the said order on the ground that at

the fag end of the trial all of a sudden this petition was filed under

section 311 Cr.P.C for examining the father of the deceased as a witness

on behalf of the prosecution. He submits that at the fag end of the trial

allowing that application that too, in absence of the name of the said

person in the charge sheet witness which amounts to filling of the lacuna

in the trial. He submits that this aspect of the matter has been decided

by this Court in a case of "Dhullu Mahto @ Dhullu Mahto v. The State of

Jharkhand" reported in (2017) 3 JCR 13 (Jhr.). He relied on paragraph

no.12 and 13 of the said judgment, which are quoted hereinbelow:

12. What would thus fall from the aforesaid judicial pronouncements quoted above is that the provisions of Section 311 Cr.P.C. is by way of mechanism to let the trial court arrive at a truth and such power has obviously to be exercised judiciously and the same cannot be allowed by either the prosecution or for the defence to fill up the lacuna in their respective cases.

13. Coming back to the factual matrix of the case the petitioner is a sitting Member of Jharkhand Legislative Assembly and prosecuting the petitioner sanction was sought for by the Investigating Officer. This fact was never in the knowledge of the petitioner but such information has been subsequently gathered. It is not in dispute that the efforts made by the Investigating Officer in obtaining sanction from the prosecution of the petitioner being conspicuously absent, P.W. 9 and P.W. 11 were, therefore, never examined or cross-examined on the said fact. It is no doubt true that the prosecution witnesses have been examined and the accused persons have also examined under Section 313 of the Cr.P.C. but in view of the provisions of Section 311 of the Cr.P.C. even at the fag end of the trial an application under Section 311 of the Cr.P.C. can be considered and if necessary allowed if the court finds that allowing such application will not render filling up of the lacuna in either the prosecution case or the defence case."

5. He further submits that this Court has decided this issue

and held that section 311 Cr.P.C will not be allowed for filling of the

lacuna, either in the prosecution's case or in defence 's case. He further

relied in the case of "Bhim Modi v. State of Jharkhand And Anr." reported

in 2015 (1) JCR 374 (Jhr.) Para 7 and 8 of the said judgment are quoted

hereinbelow:

"7. No doubt power under Section 311 Cr.P.C. can be exercised at any stage of enquiry, trial or proceeding and it is settled principle that the trial or enquiry does not terminate till pronouncement of judgment or passing of order. However, in the present case, as

noticed above, several opportunities had been given to the complainant to produce witness but the complainant with intent to delay/prolong the trial kept filing petition seeking time to produce witness. The onus was on the complainant to produce the witness and it is apparent from the ordersheets that the court had on couple of occasions directed the complainant to be physically present alongwith the witness but the complainant adopted delaying tactic by repeatedly seeking adjournment to produce the witness. It is noticed that the case is summons triable. Section 258 Cr.P.C. prescribes for speedy trial and disposal of the case, however, even after lapse of two years after substance of accusation was explained and several opportunities were given to the complainant the witnesses were not produced by her.

8. The essence of invoking the power under Section 311 Cr.P.C. is to ascertain the truth or to bring on record material evidence which appears essential for the just decision of the case. It is true under Section 311 Cr.P.C. the court is vested with wide discretion to exercise the power at any stage but such power is to be exercised sparingly taking into account the attending facts and circumstances in a suitable case. Even in a case where the evidence is closed the court can exercise the discretion of examining a witness but the provision of the section is not an umbrage or a recourse to be utilised by either the prosecution or the defence to abuse the process of court or to delay and prolong the trial."

6. He further submits that the provision of section 311 Cr.PC

has been considered by this Court in the said judgment. He further

submits that such power is required to be sparingly used by the court

and without considering this, the court below has passed the impugned

order and accordingly the impugned order is fit to be quashed.

7. Mrs. Vandana Bharti, the learned counsel appearing on

behalf of the State draws attention of the Court to section 311 Cr.P.C and

submits that this section is in two parts. She submits that the first part

indicates the word 'may' and the second part uses the word 'shall'. By

way of referring to section 311 Cr.P.C, she submits that once the petition

is filed and the Magistrate comes to the conclusion that it is essential for

calling any witness, he is bound to call in view of second part of section

311 Cr.P.C. To buttress her this argument, she relied in the case of

"Shailendra Kumar v. State of Bihar and others" , wherein the second last

paragraph of the said judgment says that, bare reading of the aforesaid

section reveals that it is of very wide amplitude and if there is any

negligence, latches or mistakes by not examining material witnesses, the

Courts function to render just decision by examining such witnesses at

any stage is not, in any way, impaired. This Court in ["Rajendra Prasad

vs. Narcotic Cell (1999) 6 SCC 110] observed, after all, function of the

criminal court is administration of criminal justice and not to count the

errors committed by the parties or to find out and declare who among

the parties performed better. She further submits that the trial court is

competent enough to call any witness at any stage and for calling the

witness if the court is satisfied, there is no illegality. To buttress this

argument, she relied in the case of "Shailendra Kumar' (supra). She

submits that in the case of "Shailendra Kumar' the case of 'Rajendra

Prasad v. Narcotic Cell' has also been considered. She further submits

that in this case the Hon'ble Supreme Court has held that 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. She further submits that Hon'ble

Supreme Court has said that after all, function of the criminal court is

administration of criminal justice and not to count errors committed by

the parties or to find out and declare who among the parties performed

better. While referring this judgment, by way of referring the impugned

order, she submits that there is no illegality in the impugned order as

only the father of the deceased has not been examined as the case is

under section 304(B) IPC.

8. Mr. Rashidi, the learned counsel appearing on behalf of the

O.P.No.2 adopted the argument of Mrs. Vandana Bharti, the learned State

counsel and submits that the court below has considered the entire

aspect of the matter and there is no illegality in the impugned order

dated 02.03.2020 as the essential witness due to inadvertence if was not

listed in the list of witnesses, the court below has rightly allowed the

petition under section 311 Cr.P.C. He relied in the case of "V.N. Patil v. K.

Niranjan Kumar and Others' reported in 2021 (3) JT 20 [(2021 3 SCC

661]. Paragraph nos. 16, 17 and 24 of the said judgment are given

hereinbelow:

16. This principle has been further reiterated in Mannan Shaikh v. State of W.B.and thereafter in Ratanlal v. Prahlad Jat and Swapan Kumar Chatterjee v. CBI. The relevant paragraphs of Swapan Kumar Chatterjee are as under: (Swapan Kumar Chatterjee case, SCC p. 331, paras 10-11) "10. The first part of this section which is permissive gives purely discretionary authority to the criminal court and enables it at any stage of inquiry, trial or other proceedings under the Code to act in one of the three ways, namely, (i) to summon any person as a witness; or (ii) to examine any person in attendance, though not summoned as a witness; or (iii) to recall and re- examine any person already examined. The second part, which is mandatory, imposes an obligation on the court (i) to summon and examine, or (ii) to recall and re-examine any such person if his evidence appears to be essential to the just decision of the case.

11. It is well settled that the power conferred under Section 311 should be invoked by the court only to meet the ends of justice. The power is to be exercised only for strong and valid reasons and it should be exercised with great caution and circumspection. The court has vide power under this section to even recall witnesses for re-examination or further examination, necessary in the interest of justice, but the same has to be exercised after taking into consideration the facts and circumstances of each case. The power under this provision shall not be exercised if the court is of the view that the application has been filed as an abuse of the process of law."

17. The aim of every court is to discover the truth. Section 311 CrPC 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 CrPC has to

be exercised judiciously for strong and valid reasons and with caution and circumspection to meet the ends of justice.

24. Consequently, the appeal succeeds and is allowed. The judgment of the High Court impugned dated 11-1-2017 is hereby set aside. Since the trial is pending for almost 16 years by this time, the learned trial Judge may proceed in compliance with the Order dated 3-9-2016 expeditiously and conclude the pending trial at the earliest.

9. By way of relying on this judgment, he submits that it is

well settled that it is not required to elaborate the reasons but since the

matters are carried forward to the court, the court can allow the said

petition under section 311 Cr.P.C for the end of justice.

10. In the light of the above submissions of the learned counsel

appearing on behalf of the parties, the Court perused the impugned

order dated 02.03.2020 by which petition under section 311 Cr.P.C has

been allowed. In the said order, the trial court has come to the

conclusion that the case is of section 304(B) IPC and the father of the

deceased is an essential witness and that is why the court below

considering the submissions of the learned counsel for the parties and

applying the mind came to the conclusion that the father of the deceased

is required to be examined for the end of justice and section 311 Cr.P.C

petition has been allowed by the court below. A reference may be made

to the case of "Manju Devi v. State of Rajasthan and Another" reported in

(2019) 6 SCC 203, wherein the Hon'ble Supreme Court was considering a

petition under section 311 Cr.P.C and in that case, the investigating

agency did not site the doctor who conducted the first post-mortem as a

witness and the trial court allowed the petition under section 311 Cr.P.C

for examining that doctor which was travelled up to the Hon'ble Supreme

Court and in the case of "Manju Devi v. State of Rajasthan and

Another"" reported in (2019) 6 SCC 203 in para 10 of the said judgment it

is held as under :

"10. It needs hardly any emphasis that the discretionary powers like those under Section 311 CrPC are essentially

intended to ensure that every necessary and appropriate measure is taken by the Court to keep the record straight and to clear any ambiguity insofar as the evidence is concerned as also to ensure that no prejudice is caused to anyone. The principles underlying Section 311 CrPC and amplitude of the powers of the court thereunder have been explained by this Court in several decisions. In Natasha Singh v. CBI, though the application for examination of witnesses was filed by the accused but, on the principles relating to the exercise of powers under Section 311, this Court observed, inter alia, as under: (SCC pp. 746 & 748-49, paras 8 &15) "8. Section 311 CrPC empowers the court to summon a material witness, or to examine a person present at "any stage" of "any enquiry", or "trial", or "any other proceedings" under CrPC, or to summon any person as a witness, or to recall and re-examine any person who has already been examined if his evidence appears to it, to be essential to the arrival of a just decision of the case. Undoubtedly, CrPC has conferred a very wide discretionary power upon the court in this respect, but such a discretion is to be exercised judiciously and not arbitrarily. The power of the court in this context is very wide, and in exercise of the same, it may summon any person as a witness at any stage of the trial, or other proceedings. The court is competent to exercise such power even suo motu if no such application has been filed by either of the parties. However, the court must satisfy itself, that it was in fact essential to examine such a witness, or to recall him for further examination in order to arrive at a just decision of the case.

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15. The scope and object of the provision is to enable the court to determine the truth and to render a just decision after discovering all relevant facts and obtaining proper proof of such facts, to arrive at a just decision of the case. Power must be exercised judiciously and not capriciously or arbitrarily, as any improper or capricious exercise of such power may lead to undesirable results. An application under Section 311 CrPC must not be allowed only to fill up a lacuna in the case of the 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 an unfair advantage to the opposite party. Further, the additional evidence must not be received as a disguise for retrial, or to change the nature of the case against either of the parties. Such a power must be exercised, provided that the evidence that is likely to be tendered by a witness, is germane to the

issue involved. An opportunity of rebuttal however, must be given to the other party. The power conferred 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 great caution and circumspection. The very use of words such as "any court", "at any stage", or "or any enquiry, trial or other proceedings", "any person" and "any such person" clearly spells out that the provisions of this section have been expressed in the widest possible terms, and do not limit the discretion of the court in any way. There is thus no escape if the fresh evidence to be obtained is essential to the just decision of the case. The determinative factor should therefore be, whether the summoning/recalling of the said witness is in fact, essential to the just decision of the case."

11. It is well settled that the power of the court to summon

material witness can be exercised only with the object find out the truth

or obtaining proper proof of facts which may lead to a just and correct

decision. The Hon'ble Supreme Court on the point of lacuna has

considered in the case of "U.T. of Dadra & Nagar Haveli And Another v.

Fatehsinh Mohansinh Chauhan" reported in (2006) 7 SCC 529 and in its

para 16 has held as under :

16. The charge-sheet submitted by the police under Section 173 CrPC after completion of investigation contains the statements of the witnesses as recorded under Section 161 CrPC and in a case exclusively triable by the Court of Session there is a duty enjoined on a Magistrate to furnish to the accused, free of cost, a copy of the police report including a copy of the FIR, statement of the witnesses under Section 161 CrPC and other documents as mentioned in Section 207 CrPC. It is on the basis of the charge-sheet that the Magistrate takes cognizance of the offence under Section 190(1)(b) CrPC. Normally, the investigating agency cannot visualise at that stage what will be the nature of defence which an accused will take in his statement under Section 313 CrPC as the said stage comes after the entire prosecution evidence has been recorded. The prosecution is only required to establish its case by leading oral and documentary evidence in support thereof. While leading evidence the prosecution may not be in a position to anticipate or foresee the nature of defence which may be taken by the accused and evidence which he may lead to substantiate the same. Therefore, it is neither expected to

lead negative evidence nor is it possible for it to lead such evidence so as to demolish the plea which may possibly be taken by the accused in his defence. This being the normal situation, an application moved by the prosecution for summoning a witness under Section 311 CrPC, after the defence evidence has been recorded, should not be branded as "an attempt by the prosecution to fill in a lacuna".

12. It was held that in a normal situation an application moved

by the prosecution for summoning a witness under section 311 Cr.PC

after the defence evidence has been recorded should not be branded as

an attempt by the prosecution to fill in a lacuna. The judgment relied by

Mr. Sinha, the learned counsel for the petitioners in the case of " Bhim

Modi v. State of Jharkhand and Anr." reported in 2015 (1) JCR 374 (Jhr.)

wherein inspite of full opportunity and indulgence the complainant has

not brought the evidence. This judgment is not helping the petitioners

as the facts are different from the present case. In the case of "Dhullu

Mahto @ Dhullu Mahto v. The State of Jharkhand" (supra) relied by the

petitioners in that case the trial court has not considered the issue as to

whether subsequent development did give right to the petitioner to