Abid Ansari @ Aabid Ansari @ Aabil ... vs The State Of Jharkhand
2023 Latest Caselaw 1742 Jhar

                                                            Cr. M.P. No.687 of 2023




           IN THE HIGH COURT OF JHARKHAND AT RANCHI
                              Cr.M.P. No.687 of 2023
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1. Abid Ansari @ Aabid Ansari @ Aabil Ansari, aged about 22 years, son of Jbar Miyan, resident of village Karmiganj, P.O. Tapin, Bahera, P.S. Tapin District Hazaribag

2. Rojan Ansari @ Rojan @ Md Wakil Ansari @ Md. Wakil @ Wakil @ Bakil Ansari @ Rajan Ansari, aged about 40 years, son of Md. Yusuf, resident of village Bahera, Karimganj, Kajri P.O. + P.S. Tapin, District- Hazaribag ... Petitioners Versus The State of Jharkhand ... Opposite Party

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             For the Petitioners       : Mr. Pratik Sen, Advocate
             For the State             : Mr. Shiv Shankar Kumar, Addl. P.P.
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                                        PRESENT
                 HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY


By the Court:-    Heard the parties.

2. This Criminal Miscellaneous Petition has been filed invoking the

jurisdiction of this Court under Section 482 of the Code of Criminal Procedure

with a prayer to quash the order dated 13.02.2023 passed by Sessions Judge,

Ramgarh in S.T. No.148 of 2018 arising out of Mandu P.S. Case No.38 of 2018

corresponding to G.R. No.208 of 2018 registered for the offence punishable

under Sections 302, 120 B, 34 of the Indian Penal Code; by which the petition

filed under Section 311 of the Code of Criminal Procedure vide Misc. Case

being MCA No.05 of 2023, by the petitioner who is the accused in the said case,

was rejected by the Sessions Judge.

3. The brief facts of the case is that the petitioners are the accused persons

of the said case and are facing the said trial inter alia allegedly for having

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committed the murder of Ful Kumari. The prosecution case is based on

circumstantial evidence. Undisputedly, the P.W.10 and P.W.11 are the two

Investigating Officers of the case who have conducted different parts of the

investigation of the case. After examination of P.W.10 and P.W.11 as witnesses

in the said trial, the P.W.13 produced and proved material exhibits marked as

Ext. (I) to (IX), which were seized by the P.W.11. As at the time of examination

of the P.W.10 and P.W.11 in court, the material exhibits, which have later been

marked as Ext. (I) to (IX) were not in the court, hence, the petitioners could not

put relevant questions in the cross-examination of P.W.10 and P.W.11. Hence,

they prayed to recall P.W.10 and P.W.11 for further cross-examination in

respect of the material exhibits marked as Ext. (I) to Ext. (IX), by the said

petition filed under section 311 of the Code of Criminal Procedure.

4. The learned Sessions Judge in the impugned order found that the

application under Section 311 Cr.P.C. was filed when the prosecution evidence

was closed and the case was fixed for recording the statement under Section

313 of Cr.P.C. of the accused persons of the case. The learned Sessions Judge

observed that the P.W.10- Bidyawati Kumari Ohdar has not seized any material

exhibit in connection with the crime and she has just sent the finger prints

collected by the previous investigating officer for forensic examination after

taking sample of finger prints of the accused persons. The Sessions Judge has

observed regarding the P.W.11 that P.W.11 collected several material exhibits

from the place of occurrence; apart from collecting the finger prints after

developing the same with the help of Sub Inspector- Ashok Kumar. The P.W.11

has also collected certain material exhibits on the basis of confessional

statement of the accused and detailed cross-examination of the P.W.11 has been

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done including the pointed questions regarding the seized material exhibits

and as in the application, no specific point as to which question is to be asked

from the P.W.11 has been mentioned, hence, the learned Sessions Judge did not

find it proper to recall the witnesses being P.W.10 and P.W.11 for their further

cross-examination and rejected the petition.

5. Mr. Pratik Sen- learned counsel for the petitioners submits that the

petitioners are not named in the F.I.R. and their names have transpired during

the course of investigation only. It is next submitted that as the entire case of

the prosecution, is based on circumstantial evidence; the petitioners will be

prejudiced unless they are permitted to further cross-examine the P.W.10 and

P.W.11 subsequent to whose discharge as witnesses after cross-examination,

the material exhibits marked as (I) to (IX) have been proved by the prosecution.

Mr. Sen relies upon the judgment of the Hon'ble Supreme Court of India in the

case of P. Sanjeeva Rao vs. State of Andhra Pradesh reported in (2012) 7 SCC

56 paragraphs-19 to 23 of which read as under:-

"19. The nature and extent of the power vested in the courts under Section 311 CrPC to recall witnesses was examined by this Court in Hanuman Ram v. State of Rajasthan [(2008) 15 SCC 652 : (2009) 3 SCC (Cri) 1149] . This Court held that the object underlying Section 311 was to prevent failure of justice on account of a mistake of either party to bring on record valuable evidence or leaving an ambiguity in the statements of the witnesses. This Court observed: (SCC p. 654, para

7) "7. ... '26. ... This is a supplementary provision enabling, and in certain circumstances imposing on the court the duty of examining a material witness who would not be otherwise brought before it. It is couched in the widest possible terms and calls for no limitation, either with regard to the stage at which the powers of the court should be exercised, or with regard to the manner in which it should be exercised. It is not only the prerogative but also the plain duty of a court to examine such of those witnesses as it considers absolutely necessary for doing justice between the State and the subject. There is a duty cast upon the court to arrive at the truth by all lawful means and one of such means is the examination of witnesses of its own accord when for certain obvious reasons either party is not

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prepared to call witnesses who are known to be in a position to speak important relevant facts.

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 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.' [ As observed in Zahira Habibullah Sheikh (5) v. State of Gujarat, (2006) 3 SCC 374, p. 392, paras 26- 27 : (2006) 2 SCC (Cri) 8.] "

(emphasis supplied)

20. Grant of fairest opportunity to the accused to prove his innocence is the object of every fair trial, observed this Court in Hoffman Andreas v. Inspector of Customs [(2000) 10 SCC 430 : 2001 SCC (Cri) 1488] . The following passage is in this regard apposite: (SCC p. 432, para 6) "6. ... 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."

(emphasis supplied)

21. The extent and the scope of the power of the Court to recall witnesses was examined by this Court in Mohanlal Shamji Soni v. Union of India [1991 Supp (1) SCC 271 : 1991 SCC (Cri) 595] wherein this Court observed: (SCC p. 283, para 27) "27. The principle of law that emerges from the views expressed by this Court in the above decisions is that the criminal court has ample power to summon any person as a witness or recall and re- examine any such person even if the evidence on both sides is closed and the jurisdiction of the court must obviously be dictated by exigency of the situation, and fair play and good sense appear to be the only safe guides and that only the requirements of justice command and examination of any person which would depend on the facts and circumstances of each case."

Cr. M.P. No.687 of 2023

(emphasis supplied)

22. Discovery of the truth is the essential purpose of any trial or enquiry, observed a three-Judge Bench of this Court in Maria Margarida Sequeira Fernandes v. Erasmo Jack de Sequeira [(2012) 5 SCC 370 : (2012) 3 SCC (Civ) 126] . A timely reminder of that solemn duty was given in the following words: (SCC p. 384, para 35) "35. What people expect is that the court should discharge its obligation to find out where in fact the truth lies. Right from inception of the judicial system it has been accepted that discovery, vindication and establishment of truth are the main purposes underlying the existence of the courts of justice."

23. We are conscious of the fact that recall of the witnesses is being directed nearly four years after they were examined-in-chief about an incident that is nearly seven years old. Delay takes a heavy toll on the human memory apart from breeding cynicism about the efficacy of the judicial system to decide cases within a reasonably foreseeable time period. To that extent the apprehension expressed by Mr Raval, that the prosecution may suffer prejudice on account of a belated recall, may not be wholly without any basis. Having said that, we are of the opinion that on a parity of reasoning and looking to the consequences of denial of opportunity to cross-examine the witnesses, we would prefer to err in favour of the appellant getting an opportunity rather than protecting the prosecution against a possible prejudice at his cost. Fairness of the trial is a virtue that is sacrosanct in our judicial system and no price is too heavy to protect that virtue. A possible prejudice to the prosecution is not even a price, leave alone one that would justify denial of a fair opportunity to the accused to defend himself."

and submits that the fairness of a trial being a virtues i.e. sacrosanct to

our judicial system, this is a fit case where the prayer of the petitioners to cross-

examine the P.W.10 and P.W.11 be allowed.

6. In this respect, Mr. Sen also relies upon the judgment of the Hon'ble

Supreme Court of India in the case of Sudevanand vs. State through Central

Bureau of Investigation reported in (2012) 3 SCC 387.

7. Learned Addl.P.P. appearing for the State on the other hand defends the

impugned order dated 13.02.2023 and submits that since adequate

opportunities having been provided to the petitioners for cross-examination of

the P.W.10 and P.W.11 at length and as the P.W.10 has not done any

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investigation in respect of any of the material exhibit, so the prayer for recalling

the P.W.10 for further cross-examination is uncalled for. Hence, it is submitted

that this petition, being without any merit, be dismissed.

8. Having heard the rival submissions made at the Bar and after carefully

going through the materials available in the record, this Court finds that it is

crystal clear that the P.W.10- Bidyawati Kumari Ohdar is the second

investigating officer of the case and she has only sent the finger prints and she

has not seized any material exhibit in connection with the case and she has only

sent the finger prints collected by the previous investigating officer for forensic

examination after taking sample of finger prints of the accused persons and the

same has got nothing to do with any of the material exhibits. Hence, this Court

is of the considered view that recalling the P.W.10 for further cross-examination

in respect of the material exhibits which have been marked as Exhibit (I) to

Exhibit (IX) is not proper.

9. So far as the prayer for recalling the P.W.11 is concerned, as the prayer

for recalling the P.W.11 who is the main investigating officer of the case and

who has undisputedly seized the material exhibits but did not produce it in the

court at the time of his examination as a witness in the trial. It is pertinent to

mention that normally in a criminal trial, the main investigating officer of the

case is examined as the last witness and the purpose being to enable the

accused persons to cross-examine him in respect of the investigation done by

him vis-à-vis the evidence that has come through other witnesses. Admittedly,

there is discrepancy in the colour of the ladies purse of the deceased in the

testimony of the witnesses. While the P.W.11 has deposed in para-24 that it is of

pink (Gulabi) colour but the material exhibit was found to be of brown (Katha)

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colour. As already indicated above, it is a settled principle of law that grant of

fairest opportunity to the accused to prove his innocence is the object of every

fair trial. Since the material exhibits undisputedly, were not produced in court

at the time of examination of P.W.11. As a witness during the trial, certainly,

there was no scope for the petitioner to put questions to the P.W.11 vis-à-vis the

material exhibits. It is needless to mention, that in a criminal trial in a case

based on circumstantial evidence only, a discrepancy in the evidence may have

a far-reaching consequences. Under such circumstances, this Court is of the

considered view that the portion of the order by which the learned Sessions

Judge has rejected the prayer for recalling the P.W.11 who is the main

investigating officer of the case for further cross-examination is not sustainable

in law. Accordingly the same is set aside.

10. The prayer of the petitioners to recall the P.W.11 for further cross-

examination in respect of the material exhibits marked I to IX only, is allowed.

11. The trial court is directed to reopen the case of the prosecution and issue

summons to the P.W.11 for his further cross-examination in respect of the

material exhibits which have been marked as Exhibit (I) to Exhibit (IX) only.

12. This Cr.M.P. is allowed in part to the aforesaid extent only.

(Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 26th of April, 2023 AFR/ Animesh