Tinku Kumar vs The State Of Jharkhand
2022 Latest Caselaw 461 Jhar

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            IN THE HIGH COURT OF JHARKHAND, RANCHI
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Cr.M.P. No. 2904 of 2021

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Tinku Kumar, aged 32 years, s/o late Mahendra Sao, resident of Vill.:Hutar, PO and PS Khunti, District-Khunti ..... Petitioner

-- Versus --

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

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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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For the Petitioner :- Mr. Mohit Prakash, Advocate For the State :- Mrs.Vandana Bharti, Advocate

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2/15.02.2022 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.

2. This petition has been filed for quashing the order dated

22.10.2021 passed by learned Chief Judicial Magistrate, Khunti in

connection with Khunti P.S.Case No.28/2015=G.R.No.85/2015 whereby

petition filed by the prosecution under section 311 Cr.P.C has been

allowed. The case has been registered under sections 386/387/120-B/34

of the I.P.C and under section 17 of the C.L.A.

3. Mr. Mohit Prakash, the learned counsel appearing on behalf

of the petitioner submits that the prosecution has already examined all

the witnesses and after closing of final argument, learned A.P.P. filed the

petition under section 311 Cr.P.C for examination of informant and SDPO,

Anudeep Singh which has been allowed which amounts to fill up the

lacuna. He submits that the case of the petitioner is fully covered in the

light of judgment delivered by Hon'ble Patna High Court in the case of

Rajesh Kumar and Others v. The State of Jharkhand, 2012 (4) PLJR 338.

The Court has perused the order dated 22.01.2021 where by the

prosecution was directed to produce the witnesses and examine them in

three consecutive dates.

4. The Court has gone through the impugned order.

5. A reference may be made to the case of Manju Devi v.

State of Rajasthan and Another, (2019) 6 SCC 203 wherein the Hon'ble

Supreme Court has considered the petitioner 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 the witness and the trial court

allowed the petition under section 311 Cr.PC for examining that doctor

which was travelled up to the Hon'ble Supreme Court. Paragraph no.10 of

the said judgment is quoted hereinbelow:

"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.

* * *

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."

6. 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. On the point of lacuna the Hon'ble Supreme Court has again

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

Fatehsinh Mohansinh Chauhan, (2006) 7 SCC 529 and held in paragraph

no.16 in the said judgment which is quoted hereinbelow:

"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".

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

behalf of the respondent State submits that there is no illegality in the

impugned order.

8. In view of the prayer made and coming to the conclusion

the learned court has directed to examine those witnesses within three

consecutive dates. There is no illegality in the impugned order.

9. Accordingly, Cr.M.P. No. 2904 of 2021 is dismissed.

( Sanjay Kumar Dwivedi, J)

SI/