Jharkhand High Court

Subhas Chandra Pradhan vs The State Of Jharkhand on 20 September, 2022

                                                    1                  W.P. (Cr.) No. 407 of 2022


                     IN THE HIGH COURT OF JHARKHAND AT RANCHI
                               W.P. (Cr.) No. 407 of 2022
                  Subhas Chandra Pradhan, aged about 54 years, son of late Ramesh
                  Chandra Pradhan, the then Mines Manager of Ghatkuri Iron Mines,
                  representing M/s Rungta Mines Limited, P.O. & P.S. Gua, District West
                  Singhbhum, Jharkhand and permanent resident of Qr. No.301B,
                  Mahaveer Classic Apartment, Prakruti Vihar, Unit 19, Bhubaneshwar,
                  Bhubaneshwar (M.C.), P.O. Bhubaneshwar, P.S. Khorda, District-
                  Bhubaneshwar, State- Odisha                           ... Petitioner
                                           -Versus-
             1.   The State of Jharkhand
             2.   Dharmendra Kumar, son of Late Harekant Sharma, resident of village
                  & P.O. Koshala, P.S. Nardiganj, District- Nawada (Bihar) presently
                  residing at D.P. Singh Colony, Near Police Line, Sadar Bazar, P.O. & P.S.
                  Sadar Bazar, Chaibasa, District Singhbhum West
             3.   Jayant Kumar Birua, son of R.N. Birua, resident of village Parsa, P.O.
                  Pilka, P.S. Majhari, District West Singhbhum presently residing at
                  village Nuia, P.O. & P.S. Gua, District- West Singhbhum
             4.   Nitish Kumar Sinha, son of Suresh Kumar Sinha, resident of village
                  Dekpura, P.O. & P.S. Rahul, District Nalanda, Bihar presently residing
                  at village Nuia, P.O. & P.S. Gua, District West Singhbhum
             5.   Union of India through C.B.I.                          ... Respondents
                                            -----

CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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For the Petitioner : Mr. Indrajit Sinha, Advocate For the State : Mr. Ravi Prakash Mishra, A.C to A.A.G.-II For the CBI : Mr. Pradyumna Poddar, A.C to D.S.G.I.

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04/20.09.2022. Heard Mr. Indrajit Sinha, learned counsel for the petitioner, Mr. Ravi

Prakash Mishra, learned counsel for the State and Mr. Pradyumna Poddar,

learned counsel for the CBI.

2. This petition has been filed for quashing the order dated 11.08.2022

passed by the learned Additional Sessions Judge, Chaibasa in Cr. Rev. No.11

of 2022 whereby the learned court has affirmed the order dated 02.03.2022

passed by the learned Chief Judicial Magistrate, Chaibasa. The prayer is also

made to quash the order dated 02.03.2022 passed by the learned Chief

Judicial Magistrate, Chaibasa in connection with C/1 Case No.54 of 2010

whereby the petition filed by the petitioner for calling original challan, which

is the subject matter of R.C.07(S)/2010-AHD-R was dismissed.

3. The petitioner filed complaint in the court of the learned Chief Judicial

Magistrate, Chaibasa against respondent nos. 2 to 4 stating therein that

M/s. Rungta Mines Ltd. is a mining lessee and is engaged in production of

Iron Ore at Village Ghatkuri P.S. Gua within the district of West Singhbhum.

For the purpose of dispatch of Iron Ore that are extracted from the

aforesaid mines, transit challans in Form D were issued by the Mines

Department, Government of Jharkhand. In course of day to day dispatch of

iron ore from the aforesaid mines, the transit challans in Form D issued to

the aforesaid company were issued to the accused persons who were

employed in the said company for use or to return the same to the mines

manager, if unused. One such Transit Challan Book contains 100 leaves

bearing serial numbers. Each leaf has got four counter foils, one of the

same is for record of the lessee company and the other three parts are

meant for use at different staged of the same transit. Concerned employees

to whom the transit challans are issued are responsible for proper use of

the transit challans for the purpose of transit of minerals dispatched by the

company only and to return the same either used or unused. It has come to

light that one book containing Transit Challans in Form D was not returned

either used or unused by the concerned employee of the company.

Therefore, information was immediately given to the Gua P.S. about missing

of the same by way of abundant precaution to avoid its misuse and

verification was also conducted in this regard. In course of verification/

checking of records of transit challan books, it transpired that fourteen other

challan books were not returned either used or unused by the concerned

employees, i.e. the accused persons, which they were duty bound to return.

As such the accused persons were directed to return the challan books

issued to them individually, which was not complied, leading to issuance of

charge sheets against the erring employees/accused persons and

explanation was sought. In spite of giving sufficient opportunities to return

the challan books, the accused person failed/neglected to do the same nor

any reasonable explanation was given by the accused person, thereby it

was apprehended that said transit challan books were lost/removed

dishonestly/misused and an Informatory Petition being no.4/2010 was filed

on 25.01.2010 before the Chief Judicial Magistrate, Chaibasa in relation to

15 books of transit challan in Form D and an information was also given to

the Officer In-charge of Gua Police Station on 01.04.2010 by registered

post. Therefore a domestic enquiry was conducted against the delinquent

employees/accused persons in which the accused persons categorically

admitted that the aforesaid challan books were issued to them and those

were not returned. Therefore, the accused persons were found guilty of

serious misconduct and were dismissed from their service. It was conclude

that the accused persons had misused the transit challans for their personal

gains. Upon filing of the complaint the same was numbered as C/1 Case

No.54 of 2010 and thereafter the complainant and its witnesses were

examined under Section 202 Cr.P.C. at the stage of enquiry and vide order

dated 25.03.2021 the learned Chief Judicial Magistrate has taken

cognizance.

4. Mr. Indrajit Sinha, learned counsel for the petitioner submits that

there are widespread misuse of transit challans by unauthorized persons

dishonestly for deriving personal gains, as has been done by the accused

persons in the case of the petitioner, thereafter all such similar matters were

entrusted to CBI in connection with Gua (Barajamda) P.S. Case No.28/2010

corresponding to G.R. No.231/2010 for thorough investigation and for

taking action against all who involved in such widespread misdeed. In

course of enquiry, the CBI directed the petitioner to produce the challan

issuing register, which was produced by the complainant and the same was

seized by the CBI on 16.04.2011 in connection with Case No.RC07(S)/2010-

AHD-R, pending in the court of the learned Special Judicial Magistrate, CBI

at Ranchi. He further submits that the petitioner has filed the case alleging

therein misuse of challan. He also submits that the challan issuing register

has been seized by the CBI and for proving his case, that register was

necessary to be produced in the case, filed by the petitioner, which is the

subject matter of this petition. He further submits that the petitioner has

filed the petition, however the learned trial court as well as the revisional

court have rejected the petition under Section 91 Cr.P.C. He also submits

that the documents are at serial nos. 40 and 41 of the charge-sheet

submitted by the CBI.

5. Vide order dated 13.09.2022, the petitioner was directed to array the

CBI as respondent no.5 and the petitioner was also directed to serve two

copies of the petition upon the learned counsel for the CBI. Pursuant

thereto, the learned counsel for the CBI is present before this Court and he

submits that the CBI has got no difficulty in producing the said document if

the Court directs.

6. Learned counsel for the State submits that the learned courts have

rightly rejected the petitions filed by the petitioner and there is no illegality

in the impugned orders.

7. The Court has perused the materials on the record and finds that for

the same allegation two cases have been registered, one has been

investigated by the CBI and the petitioner has filed the complaint case

alleging that challan issuing register has been misused by the CBI. The

learned trial court has rejected the petition filed by the petitioner on the

ground that belatedly the petition has been filed and the petitioner has not

prosecuted diligently. The learned revisional court has also dismissed the

petition filed by the petitioner on the ground that ample opportunities were

given to the petitioner to produce certain documents, but he failed to avail

the same without examining any witness.

8. The object underlying Section 311 Cr.P.C. is that there may not be

failure of justice on account of mistake of either party in bringing the

valuable evidence on record or leaving ambiguity in the statements of the

witnesses examined from either side.

9. In Rajendra Prasad v. Narcotics Cell through its Officer,

[(1999) 6 SCC 110], the Hon'ble Supreme Court in paragraph 8 of the

judgment took note of the observation made in Mohanlal Shamji Sani v.

Union of India, AIR (1991) SC 1346 to the effect that while exercising power

under Section 311 of the Code, the Court shall not use such power `for

filling up the lacuna left by the prosecution.' Paragraph 8 of the said

judgment is quoted herein below:

"8.Lacuna in the prosecution must be understood as the inherent weakness or a latent wedge in the matrix of the prosecution case. The advantage of it should normally go to the accused in the trial of the case, but an oversight in the management of the prosecution cannot be treated as irreparable lacuna. No party in a trial can be foreclosed from correcting errors. 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. 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."

10. Recently the Hon'ble Supreme Court has again considered Section

311 Cr.P.C. in Criminal Appeal No.1021 of 2022 with MA 1144 of 2022 in

SLP (Crl) No.2239 of 2022 in Varsha Garg v. The State of Madhya

Pradesh & Ors. in paragraphs 38 to 44, which are quoted herein below:

''38. Having dealt with the satisfaction of the requirements of Section 311, we deal with the objection of the respondents that the application should not be allowed as it will lead to filling in the lacunae of the prosecution's case. However, even the said reason cannot be an absolute bar to allowing an application under Section 311.

39. In the decision in Zahira Habibullah Sheikh (5) v. State of Gujarat26, which was more recently reiterated in Godrej Pacific Tech. Ltd. v. Computer Joint India Ltd.27, the Court specifically dealt with this objection and observed that the resultant filling of loopholes on account of allowing an application under Section 311 is merely a subsidiary factor and the Court's determination of the application should only be based on the test of the essentiality of the evidence. It noted that: ―

28. The court is not empowered under the provisions of the Code to compel either the prosecution or the defence to examine any particular witness or witnesses on their side. This must be left to the parties. But in weighing the evidence, the court can take note of the fact that the best available evidence has not been given, and can draw an adverse inference. The court will often have to depend on intercepted allegations made by the parties, or on inconclusive inference from facts elicited in the evidence. In such cases, the court 26 (2006) 3 SCC 374 27 (2008) 11 SCC 108 21 has to act under the second part of the section. Sometimes the examination of witnesses as directed by the court may result in what is thought to be "filling of loopholes". That is purely a subsidiary factor and cannot be taken into account. Whether the new evidence is essential or not must of course depend on the facts of each case, and has to be determined by the Presiding Judge. (emphasis supplied)

40. The right of the accused to a fair trial is constitutionally protected under Article 21. However, in Mina Lalita Baruwa (supra), while reiterating Rajendra Prasad (supra), the Court observed that it is the duty of the criminal court to allow the prosecution to correct an error in interest of justice. In Rajendra Prasad (supra), the Court had held that: ―

8. Lacuna in the prosecution must be understood as

the inherent weakness or a latent wedge in the matrix of the prosecution case. The advantage of it should normally go to the accused in the trial of the case, but an oversight in the management of the prosecution cannot be treated as irreparable lacuna. No party in a trial can be foreclosed from correcting errors. 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. 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.‖ (emphasis supplied) In the present case, the importance of the decoding registers was raised in the examination of PW-41. Accordingly, the decoding registers merely being additional documents required to be able to appreciate the existing evidence in form of the call details which are already on record but use codes to signify the location of accused, a crucial detail, which can be decoded only through the decoding registers, the right of the accused to a fair trial is not prejudiced. The production of the decoding 22 registers fits into the requirement of being relevant material which was not brought on record due to inadvertence.

41. Finally, we also briefly deal with the objection of the respondents regarding the stage at which the application under Section 311 was filed. The respondents have placed reliance on Swapan Kumar (supra), a two judge Bench decision of this Court, to argue that the application should not be allowed as it has been made at a belated stage. The Court in Swapan Kumar (supra) observed: ―

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 wide 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.

12. Where the prosecution evidence has been closed long back and the reasons for non-examination of the witness earlier are not satisfactory, the summoning of the witness at belated stage would cause great prejudice to the accused and should not be allowed. Similarly, the court should not encourage the filing of successive applications for recall of a witness under this provision.

In the present appeal, the argument that the application was filed after the closure of the evidence of the prosecution is

manifestly erroneous. As already noted above, the closure of the evidence of the prosecution took place after the application for the production of the decoding register and for summoning of the witness under Section 23 311 was dismissed. Though the dismissal of the application and the closure of the prosecution evidence both took place on 13 November 2021, the application by the prosecution had been filed on 15 March 2021 nearly eight months earlier. As a matter of fact, another witness for the prosecution, Rajesh Kumar Singh, was also released after examination and cross- examination on the same day as recorded in the order dated 13 November 2021 of the trial court.

42. The Court is vested with a broad and wholesome power, in terms of Section 311 of the CrPC, to summon and examine or recall and re-examine any material witness at any stage and the closing of prosecution evidence is not an absolute bar. This Court in Zahira Habibulla H. Sheikh (supra) while dealing with the prayers for adducing additional evidence under Section 391 CrPC at the appellate stage, along with a prayer for examination of witnesses under Section 311 CrPC explained the role of the court, in the following terms: ―

43. The courts have to take a participatory role in a trial. They are not expected to be tape recorders to record whatever is being stated by the witnesses. Section 311 of the Code and Section 165 of the Evidence Act confer vast and wide powers on presiding officers of court to elicit all necessary materials by playing an active role in the evidencecollecting process. They have to monitor the proceedings in aid of justice in a manner that something, which is not relevant, is not unnecessarily brought into record. Even if the prosecutor is remiss in some ways, it can control the proceedings effectively so that the ultimate objective i.e. truth is arrived at. This becomes more necessary where the court has reasons to believe that the prosecuting agency or the prosecutor is not acting in the requisite manner. The court cannot afford to be wishfully or pretend to be blissfully ignorant or oblivious to such 24 serious pitfalls or dereliction of duty on the part of the prosecuting agency. The prosecutor who does not act fairly and acts more like a counsel for the defence is a liability to the fair judicial system, and courts could not also play into the hands of such prosecuting agency showing indifference or adopting an attitude of total aloofness."

(emphasis supplied) Further, in Zahira Habibullah Sheikh (5) (supra), the Court reiterated the extent of powers under Section 311 and held that: ―

27. The object underlying Section 311 of the Code is that there may not be failure of justice on account of mistake of either party in bringing the valuable evidence on record or leaving ambiguity in the statements of the witnesses examined from either side. The determinative factor is whether it is essential to the just decision of the case. The section is not limited only for the benefit of the accused, and it will not be an

improper exercise of the powers of the court to summon a witness under the section merely because the evidence supports the case of the prosecution and not that of the accused. The section is a general section which applies to all proceedings, enquiries and trials under the Code and empowers the Magistrate to issue summons to any witness at any stage of such proceedings, trial or enquiry. In Section 311 the significant expression that occurs is "at any stage of any inquiry or trial or other proceeding under this Code". It is, however, to be borne in mind that whereas the section confers a very wide power on the court on summoning witnesses, the discretion conferred is to be exercised judiciously, as the wider the power the greater is the necessity for application of judicial mind.

(emphasis supplied)

43. The Court while reiterating the principle enunciated in Mohanlal Shamji Soni (supra) stressed upon the wide ambit of Section 311 which allows the power to be exercised at any stage and held that:

44. The power of the court under Section 165 of the Evidence Act is in a way complementary to its power under Section 311 of the Code. The section consists of two parts i.e.: (i) giving a discretion to the court to examine the witness at any stage, and (ii) the mandatory portion which compels the court to examine a witness if his evidence appears to be essential to the just decision of the court. Though the discretion given to the court is very wide, the very width requires a corresponding caution. In Mohanlal v. Union of India this Court has observed, while considering the scope and ambit of Section 311, that the very usage of the words such as, "any court", "at any stage", or "any enquiry or trial or other proceedings", "any person" and "any such person" clearly spells out that the section has expressed in the widestpossible terms and do not limit the discretion of the court in any way. However, as noted above, the very width requires a corresponding caution that the discretionary powers should be invoked as the exigencies of justice require and exercised judicially with circumspection and consistently with the provisions of the Code. The second part of the section does not allow any discretion but obligates and binds the court to take necessary steps if the fresh evidence to be obtained is essential to the just decision of the case, "essential" to an active and alert mind and not to one which is bent to abandon or abdicate. Object of the section is to enable the court to arrive at the truth irrespective of the fact that the prosecution or the defence has failed to produce some evidence which is necessary for a just and proper disposal of the case. The power is exercised and the evidence is examined neither to help the prosecution nor the defence, if the court feels that there is necessity to act in terms of Section 311 but only to subserve the cause of justice

and public interest. It is done with an object of getting the evidence in aid of a just decision and to uphold the truth.

(emphasis supplied) While reiterating the decisions of this Court in Karnel Singh v. State of M.P.28 , Paras Yadav v. State of Bihar29 , Ram Bihari Yadav v. State of Bihar30 and Amar Singh v. Balwinder Singh this Court held that the court may interfere even at the stage of appeal:

64. It is no doubt true that the accused persons have been acquitted by the trial court and the acquittal has been upheld, but if the acquittal is unmerited and based on tainted evidence, tailored investigation, unprincipled prosecutor and perfunctory trial and evidence of threatened/terrorised witnesses, it is no acquittal in the eye of the law and no sanctity or credibility can be attached and given to the socalled findings. It seems to be nothing but a travesty of truth, fraud on the legal process and the resultant decisions of courts -- coram non judis and non est. There is, therefore, every justification to call for interference in these appeals.

44. For the above reasons, we have come to the conclusion that the decision of the High Court which is impugned in the appeal is unsustainable. We accordingly allow the appeal and set aside the impugned judgment and order of the High Court dated 8 April 2022 in Misc. Criminal Case No. 57152 of 2021 as well as the order of the Second Additional Session Judge, Dr. Ambedkar Nagar, District Indore dated 13 November 2021 in Sessions Trial 227 of 2016 dismissing the application filed by the prosecution. The application filed by the prosecution for the production of the decoding registers and for the summoning of the witnesses of the cellular 28 (1995) 5 SCC 518 29 (1999) 2 SCC 126 30 (1998) 4 SCC 517 31 (2003) 2 SCC 518 27 companies for that purpose is allowed. The Second Additional Sessions Judge, Dr. Ambedkar Nagar, District Indore is directed to conclude Sessions Trial No. 227 of 2016 by 31 October 2022."

11. In Rajendra Prasad (supra), the Hon'ble Supreme Court has held 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. This part of excerpts of judgment

of the Hon'ble Supreme Court itself indicates that Section 311 Cr.P.C.

includes power for examining the witnesses as well as admitting the

relevant material which were not brought on record. This view is also

supported by Section 91 of the Cr.P.C. which empowers the Court to give

direction for production of any document or other thing which is necessary

or desirable for the purpose of investigation, enquiry or other proceeding

under the Cr.P.C. The duty of the criminal court is to allow the prosecution

to correct an error in the interest of justice and to find out the truth.