Prakash vs The State Of Madhya Pradesh
2021 Latest Caselaw 1152 MP

          THE HIGH COURT OF MADHYA PRADESH
            PRINCIPAL SEAT AT JABALPUR
            Hon'ble Shri Justice Rajendra Kumar Srivastava
                        M.Cr.C. No. 8108/2021


                               Prakash & another

                                         Vs

                                The State of M.P.

------------------------------------------------------------------------------------
        Shri Pradeep Kumar Naveria, learned counsel for the
petitioners.
        Shri Brijendra Singh Kushwah, learned P.L. for the respondent
/State.
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                                        ORDER

(31.03.2021)

This petition under Section 482 of the Cr.P.C. has

been filed by the petitioners challenging the order dated

25.01.2021 passed by JMFC, Balaghat, District-Balaghat in RCT

No.1984/2006 whereby the learned JMFC has allowed the

application filed by the State under Sections 91 and 311 of the

Cr.P.C.

2. According to case, the petitioners are facing a trial of

above-said case number for the offence punishable under Section

420/34 of IPC wherein vide order dated 12.04.2017, the learned

JMFC has closed the right of prosecution to produce the

evidence. On 05.02.2019, the State has submitted an application

under Sections 91 and 311 of Cr.P.C. requesting to call the

witnesses, namely, B.P. Tiwari (Investigating Officer), Mubark

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Ali (T.I. who filed the charge-sheet), Shiv Kumar (Seizure

witness) and also to call the report of Handwriting Expert from

police headquarter, Bhopal.

3. By passing the impugned order, the learned JMFC

has considered the prayer of State to the extent of calling the

witness B.P. Tiwari and report of Handwriting Expert. Being

aggrieved by the order passed by the JMFC Balaghat, the

petitioners have approached this Court by way of filing the

instant petition.

4. Learned counsel for the petitioners submits that the

learned trial Court erred in allowing the application under

Sections 91 and 311 Cr.P.C. whereas the trial Court itself closed

the right of prosecution to produce the evidence on account of

long delay. He submits that the summons were issued in relation

to aforesaid witnesses but they did not appear before the Court

and therefore, the right to produce the evidence of prosecution

has been closed by the trial Court and this fact has been

suppressed by the prosecution while filing the application. The

order passed by the trial Court is amount to review of earlier

order passed by JMFC of closing the right to produce the

evidence, of the prosecution, which is not permissible under the

Criminal Law. He further submits that as per Section 91 of

Cr.P.C., a police officer or a Court considers that the production

of any documents or other thing is necessary or desirable for the

purpose of any investigation, inquiry, trial or other proceedings,

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the police officer or such Court may issue an order or a summons

to the person in whose possession or power, such documents or

things is believed to be. Here in the case, the documents which

production is desired by the prosecution, belongs to prosecution

itself and for which application under Section 91 of Cr.P.C.

would not be maintainable. It is well settled principle of law that

aid of Section 91 and 311 of Cr.P.C. cannot be used to fill up the

lacunas. With the aforesaid, he prays to allow the instant petition.

5. On the other hand, learned counsel for the

respondent/State opposes the petition submitting that an

opportunity of fair trial is soul of criminal justice system. The

learned JMFC has rightly exercised his discretion allowing the

application of State for calling the witnesses and production of

documents. He submits that the evidence of abovenamed

witnesses are necessary for fair adjudication of the case. The trial

Court has also found that only the evidence of witness B.P.

Tiwari is necessary to be produced before the Court, hence, the

trial Court has discarded the prayer of State in relation to other

witnesses. As far as arguments in relation to Section 91 of Cr.P.C.

is concerned, the learned P.L. submits that on 13.10.2006, the

concerning S.P. has sent a letter to provide the Handwriting

Expert report but same has not been received and therefore, the

order of Court under Section 91 of Cr.P.C. is necessary to be

passed in the case because the report is important piece of

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evidence and necessary for fair adjudication of the case. With the

aforesaid, he prays for dismissal of this petition.

6. Heard both the parties.

7. Before adverting to the facts of the case, it would be

appropriate to read the relevant provision of Sections 91 and 311

Cr.P.C. which read as under :-

"91. Summons to produce document or other thing.-

(1) Whenever any Court or any officer in charge of a police station considers that the production of any document or other thing is necessary or desirable for the purposes of any investigation, inquiry, trial or other proceeding under this Code by or before such Court or officer, such Court may issue a summons, or such officer a written order, to the person in whose possession or power such document or thing is believed to be, requiring him to attend and produce it, or to produce it, at the time and place stated in the summons or order.

(2) Any person required under this section merely to produce a document or other thing shall be deemed to have complied with the requisition if he causes such document or thing to be produced instead of attending personally to produce the same.

(3) Nothing in this section shall be deemed-

(a) to affect sections 123 and 124 of the Indian Evidence Act, 1872 (1 of 1872 ), or the Bankers' Books Evidence Act, 1891 (13 of 1891 ) or

(b) to apply to a letter, postcard, telegram or other document or any parcel or thing in the custody of the postal or telegraph authority.

M.Cr.C. No. 8108/21

311. Power to summon material witness, or examine person present - Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or. recall and reexamine any person already examined; and the Court shall summon and examine or recall and re- examine any such person if his evidence appears to it to be essential to the just decision of the case".

8. In the case of Om Prakash Sharma Vs. CBI, Delhi

reported in (2000) 5 SCC 679, the Hon'ble Apex Court has laid

down the principle of applicability of Section 91 of Cr.P.C. The

relevant para is also quoted herein under :-

"6. The powers conferred under Section 91 are enabling in nature aimed at arming the court or any officer in charge of a police station concerned to enforce and to ensure the production of any document or other things "necessary or desirable" for the purposes of any investigation, inquiry, trial or other proceeding under the Code, by issuing a summons or a written order to those in possession of such material. The language of Section 91 would, no doubt, indicate the width of the powers to be unlimited but the inbuilt limitation inherent therein takes its colour and shape from the stage or point of time of its exercise, commensurately with the nature of proceedings as also the compulsions of necessity and desirability, to fulfil the task or achieve the object. The question, at the present stage of the proceedings before the trial court would be to address itself to find whether there is sufficient ground for proceeding to the next stage against the accused. If the accused could produce any reliable material even at that stage which might totally affect even the very sustainability of the case, a refusal to even look into the materials so produced may result in injustice, apart from averting an exercise in futility at the expense of valuable judicial/public time. It is trite law that the standard of proof normally adhered to at the final stage is not to be insisted upon at the stage where the consideration is to be confined to find out a prima facie case and decide whether it is necessary to proceed to the next stage of framing the charges and making the accused to stand trial

M.Cr.C. No. 8108/21

for the same. This Court has already cautioned against undertaking a roving inquiry into the pros and cons of the case by weighing the evidence or collecting materials, as if during the course or after trial vide Union of India v. Prafulla Kumar Samal [(1979) 3 SCC 4 : 1979 SCC (Cri) 609] . Ultimately, this would always depend upon the facts of each case and it would be difficult to lay down a rule of universal application and for all times. The fact that in one case the court thought fit to exercise such powers is no compelling circumstance to do so in all and every case before it, as a matter of course and for the mere asking. The court concerned must be allowed a large latitude in the matter of exercise of discretion and unless in a given case the court was found to have conducted itself in so demonstrably an unreasonable manner unbecoming of a judicial authority, the court superior to that court cannot intervene very lightly or in a routine fashion to interpose or impose itself even at that stage. The reason being, at that stage, the question is one of mere proprieties involved in the exercise of judicial discretion by the court and not of any rights concretised in favour of the accused."

(emphasis supplied)

9. In relation to Section 311 of Cr.P.C., the Hon'ble

Apex Court has laid down the some guidelines in the case of

Natasha Singh Vs. CBI (State) report in 2013(5) SCC 741 and

has held as under :

"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 Cr.P.C. 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

M.Cr.C. No. 8108/21

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 Cr.P.C. 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 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."

10. Since, the learned counsel for the applicant has also

raised the ground that after closing the right of evidence of the

prosecution, the trial Court cannot allow the application under

Section 311 of Cr.P.C. as it amount to review of previous order.

In the case of Raj Deo Sharma (II) Vs. State of Bihar, reported

in (1999) 7 SCC 604, the three judges Bench of Hon'ble

Supreme Court has observed as under :-

"9. We may observe that the power of the court as envisaged in Section 311 of the Code of Criminal Procedure has not been curtailed by this Court. Neither in the decision of the five-Judge Bench in A.R. Antulay case [(1992) 1 SCC 225 : 1992 SCC (Cri) 93] nor in Kartar Singh case [(1994) 3 SCC 569 : 1994 SCC (Cri) 899] such power has been restricted for achieving speedy trial. In other words, even if the prosecution evidence is closed in compliance with the directions contained in the main judgment it is still open to the prosecution to invoke the powers of the court under Section 311 of the Code. We make it clear that if evidence of

M.Cr.C. No. 8108/21

any witness appears to the court to be essential to the just decision of the case it is the duty of the court to summon and examine or recall and re- examine any such person."

11. In another case Swapan Kumar Chatterjee Vs. CBI

reported in (2019) 14 SCC 328, the Hon'ble Supreme Court has

considered the nature and scope of Section 311 of Cr.P.C. and

observed as under:-

"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 way, 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 and 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."

(emphasis supplied)

12. On careful reading of Sections 91 and 311 of the

Cr.P.C. as well as the judgment passed by the Hon'ble Supreme

Court, it is manifest that both the provisions come into operation

at any stage of trial to enable the Court to find out the truth by

summoning any person as a witness or the documents. Both the

provisions should be exercised by the Court judiciously with

proper caution when Court finds it essential to reach the

conclusion of the case, but it can not be used to fill-up the

lacunas and to give the benefit to any parties by delaying the

trial. Section 311 of Cr.P.C. is incorporated with a view to enable

either the prosecution or the defence or even the Court itself to

M.Cr.C. No. 8108/21

take evidence at any stage even if the evidences are closed as the

case may be. In Section 311 of Cr.P.C., it is stated that any Court

may, at any stage of any inquiry, trial or other proceeding under

this Code, summon any person as a witness, or examine any

person in attendance, though not summoned as a witness, or

recall and re-examine any person already examined; and the

Court shall summon and examine or recall and re-examine any

such person if his evidence appears to it to be essential to the just

decision of the case. The power can be exercised at any stage of

trial even after closing the right of produce the evidence and even

becomes mandatory if the Court finds that the examination of

such person to be essential to the just decision of the case but

same should be exercised judiciously and judicially.

13. Applicability of Section 91 of Cr.P.C depends upon

the facts of each case and the Hon'ble Supreme Court has held

that the Superior Court would interfere in the matter only in case

where the discretion is exercised neither judiciously or judicially

and there is gross or improper failure to exercise the discretion.

14. Here in the case, it is true that the trial Court has

already closed the right of prosecution of producing the evidence

after giving ample opportunity. The prosecution has failed to

produce the witnesses. On perusal of impugned order, it appears

that the trial Court has considered the principle relating to

aforesaid provisions and found that the evidence of Investigating

Officer B.P. Tiwari is important for just decision of the case. The

M.Cr.C. No. 8108/21

learned counsel for the petitioners raised the ground that once a

right of producing evidence of prosecution has been closed by the

trial Court and by way of remedy of Section 311 of Cr.P.C. if the

witnesses are compelled to give evidence, the order of Court

would suffer from prejudice and its amount to review of earlier

order of closing the rights.

15. As above discussed, the Hon'ble Apex Court has

dealt with the issue and specifically held that even if the

prosecution evidence is closed in compliance with the directions,

it is still open to the prosecution to invoke the powers of the

Court under Section 311 of the Code. The Higher Court of Law

made it is clear that if evidence of any witness appears to the

Court to be essential to the just decision of the case, it is the duty

of the Court to summon and examine or recall and re-examine

such person.

16. Therefore, I do not find any force in the argument of

applicant's counsel and it is hereby discarded.

17. As far as, invoking the power of Section 91 of Cr.P.C.

by the trial Court is concerned, the trial Court found that the S.P.

Balaghat wrote a letter to concerning authority to provide the

report of Handwriting Expert but same has not been received,

therefore, the only remedy of Section 91 of Cr.P.C. remains to

call the documents from the possession of Handwriting Expert.

As per the trial Court the report is necessary to the just decision

M.Cr.C. No. 8108/21

of the case and this Court does not want to interfere in the

discretion of the learned trial Court.

18. In view of the ongoing discussion, this Court does

not find any reason to consider the prayer of applicant and thus,

this petition is hereby dismissed.

(Rajendra Kumar Srivastava) Judge

sp Digitally signed by SAVITRI PATEL Date: 2021.03.31 17:46:23 +05'30'