Unknown vs In The Case Of State Of Haryana Vrs. ...
2021 Latest Caselaw 3560 Ori

                                           CRLMC No.88 of 2021




05.   15.03.2021         Being aggrieved by the impugned order of rejection
                   dated 19.01.2021 passed by the learned Additional Sessions
                   Judge, Paralakhemundi in S.T. Case No.36 of 2018 with
                   regard to recall of P.W.24 for further cross-examination, the
                   instant application under Section 482, Cr.P.C. has been filed
                   seeking quashing of the aforesaid order.
                         The brief facts giving rise to filing of the present case
                   is that the prosecution was set to motion on the basis of an
                   F.I.R. lodged on 23.09.2018 and as revealed from the F.I.R.,
                   the marriage of the sister of the informant was solemnized
                   with the petitioner Purna Chandra Das as per Hindu Rites
                   and Customs on 22.05.2013. At the time of marriage, an
                   amount of Rs.2,00,000/-(Rupees two lakhs) along with
                   household articles were given as dowry. After the marriage,
                   the sister of the informant and her husband led a normal
                   conjugal life and after passage of time, the petitioner along
                   with her family members started torturing and assaulting
                   deceased-Madhusmita Das by demanding more dowry. On
                   22.09.2017 at about 3.00 P.M., the informant received a call
                   from the deceased that her life is in danger and on the very
                   same day, the petitioner informed over phone that his sister
                   has expired. Accordingly, the F.I.R. has been lodged
                   suspecting the murder of the deceased.
                         After investigation, charge sheet was submitted under
                   Section 498-A/302/304(B)/406/34, I.P.C. read with Section 4
                             2




of the Dowry Prohibition Act and cognizance was taken and
the matter was committed to the court of learned Additional
Sessions Judge, Parakhemundi pursuant to which S.T. Case
No.36 of 2018 was instituted on the file of the learned
Additional   Sessions   Judge,   Paralakhemundi.   After   the
commencement of trial, prosecution examined all the
witnesses including P.W.24 and the defence has also cross-
examined him, but due to paucity of time some important
contradictions could not be confronted to him. A petition
under Section 311, Cr.P.C. has been filed making out a
questionnaire which were to be put to P.W.24 and learned
Additional Sessions Judge, Paralakhemundi by order dated
19.01.2021

has passed the impugned order rejecting the petition under Section 311, Cr.P.C.

Learned counsel for the petitioner has challenged the impugned order dated 19.01.2021 on the ground that the order impugned is contrary to law, weight of evidence and probability of the case. He further submitted that the trial court has committed gross irregularity in law in rejecting the application under Section 311, Cr.P.C. Learned counsel also submitted that if the impugned order is allowed to stand, the same will not only cause irreparable injury to the petitioner but it will be abuse the process of the court. Learned counsel further submitted that 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 and leaving ambiguity in the statements of the witnesses examined by either side. The determining factor is whether it is essential for just decision of the case. In support of his contention, learned counsel for the petitioner has referred to the decision rendered in the case of Natasha Singh vrs. C.B.I. reported in (2013) 55 OCR Supreme Court 782, in the case of State of Harayana vrs. Ram Mehar and Others reported in (2016) 8 SCC 76 and in the case of Khoob Singh vrs. State of M.P. decided on 8th of March, 2018 in MCRC No.26900 of 2017.

Learned counsel for the State as well as learned counsel for the informant, however, supported the order dated 19.01.2021 passed by the learned Additional Sessions Judge, Paralakhemundi. It has been submitted on behalf of the learned counsel for the State that the Hon'ble Supreme Court had been pleased to direct conclusion of trial by the end of March, 2021 and P.W.24 has been examined and cross-examined at length. Therefore, allowing the petitioner for recall of P.W.24 at this stage would amount to protraction/ procrastination of the trial. Moreover, learned trial court after hearing the argument has posted the matter for judgment on 16.03.2021.

Before adverting to the rival contention, it will be apposite to refer to Section 311, Cr.P.C.

"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 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."

In the case of Dara Singh @ Rabindra Kumar Pal and Others vrs. Republic of India; (2003) 26 OCR 124, this Court held that:-

"Para-11. After discussing the entire facts and submissions, the Sessions Judge has rejected the petition filed under Section 311, Cr.P.C. Admittedly the prosecution and also the defence have concluded their evidence and the trial has progressed considerably, inasmuch as the court in the midst of hearing the defence arguments. Though power is given to court to recall a witness for further cross-examination, yet such power has to be exercised with discretion and according to ordinary and legal course of criminal trial. Therefore, a court as a matter of fact should not recall a witness after the evidence is closed. An accused who has

exhausted his power of cross-examination should not be given an opportunity to fiddle with the witnesses after closure of evidence. Para-12 The discretion under Section 311, Cr.P.C. is limited and cannot be exercised at late stage of a case, that too at the stage of arguments. Even otherwise the court below has sacrosanctly followed the directions issued by this Court in CRLMC No.391 of 2003 and I do not find any error apparent on the face of the order.

In view of the aforesaid settled position of law, I find that Sessions Judge has not acted illegally or with material irregularity and I am not inclined to interfere with the impugned order in exercising inherent jurisdiction at this stage of the trial."

In the case of Ratanlal vrs. Prahalad Jat; (2017) 9 SCC 340, Hon'ble Apex Court held that :-

21. The delay in filing the application is one of the important factors which has to explained in the application. In Umar Mohammad & Ors. v. State of Rajasthan, (2007) 14 SCC 711, this Court has held as under:-

"Before parting, however, we may notice that a

contention has been raised by the learned counsel for the appellant that PW 1 who was examined in Court on 5-7-1994 purported to have filed an application on 1-5-1995 stating that five accused persons named therein were innocent. An application filed by him purported to be under Section 311 of the Code of Criminal Procedure was rejected by the learned trial Judge by order dated 13-5-1995. A revision petition was filed thereagainst and the High Court also rejected the said contention. It is not a case where stricto sensu the provisions of Section 311 of the Code of Criminal Procedure could have been invoked. The very fact that such an application was got filed by PW 1 nine months after his deposition is itself pointer to the fact that he had been won over. It is absurd to contend that he, after a period of four years and that too after his examination-in- chief and cross-examination was complete, would file an application on his own will and volition. The said application was, therefore, rightly dismissed".

22. Coming to the facts of the present case, PWs 4 and 5 were examined between 29.11.2010 and 11.3.2011. They were cross-

examined at length during the said period. During the police investigation and in their evidence, they have supported the prosecution story. The Sessions Judge has recorded a finding that they were not under any pressure while recording their evidence. After a passage of 14 months, they have filed the application for their re-examination on the ground that the statements made by them earlier were under pressure. They have not assigned any reasons for the delay in making application. It is obvious that they had been won over. We do not find any reasons to allow such an application. The Sessions Judge, therefore, was justified in rejecting the application. In our view, High Court was not right in setting aside the said order.

23. In the result, the appeal succeeds and it is accordingly allowed. The order of the High Court in S.B. Criminal Miscellaneous Petition No.1679 of 2012, dated 22.5.2012 is hereby set aside. All pending applications also stand disposed of."

In the case of Swapan Kumar Chaterjee vrs.

C.B.I., (date of judgment 04.01.2019) the Hon'ble Apex

Court while quashing the order of High Court as well as trial court for recalling witness held that:-

12. 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 reexamination 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.

13. Where the prosecution evidence has been closed long back and the reasons for non- examination of the witness earlier is 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 case of K. Sajeendram vrs. Secretary Thalakulathur Gram Panchayat reported in (2004) Crl. L.J. 555 Kerala, Hon'ble Court held that:-

"where a case is posted for judgment, trial of the case stands terminated within the meaning of the Section 353, Cr.P.C. and petition under Section 311 Cr.P.C. cannot be allowed to examine the witness further."

In the case of Vinod Kumar Singh vrs. The State of Rajasthan (Date of Order-27.11.2008) Hon'ble High Court of Rajasthan held that:-

"Para-10-Section 353(1) of the Code of Criminal Procedure provides about the judgment, which read thus:-

353(1). The judgment in every trial in any Criminal Court of original jurisdiction shall be pronounced in open court by the presiding officer immediately after the termination of the trial or at some subsequent time of which notice shall be given to the parties or their pleader,-

               (a) by    delivering   the   whole   of     the
        judgment; or
               (b) by reading out the whole of the
        judgment; or

(c) by reading out the operative part of

the judgment and explaining the substance of the judgment in a language which is understood by the accused or his pleader. In order words, the stage of a judgment comes on termination of the trial. A judgment can come immediately after termination of the trial or on the subsequent date which may be given for the same and the same is so posted. Therefore, when case is posted for judgment, the trial stands terminated."

Para-11-In the instant case, the case was posted for judgment on 05.10.1999 by the learned court below and this shows that the trial had been terminated on 29.09.1999, in view of the provisions under Section 353, Cr.P.C. When the provision under Section 311, Cr.P.C. are to be exercised at any stage of enquiry, trial or other proceedings and, as mentioned above, the word 'other proceedings' is in the alternative to the trial. Therefore, in the present case, being one of a trial and was posted for judgment, stage or trial had come to an end. In the words, the trial in the present case was already over when the learned court below had posted the matter for judgment. Consequently, the powers under Section 311 of the Code could not have been

exercised by the learned Magistrate once the trial stood terminated and the case was posted for judgment. The said provisions cannot be invoked by the learned Magistrate on the day when the matter is posted for judgment. Therefore, the order impugned in the present case is not sustainable under law on this count alone.

Para-12-So far as calling of witnesses, by filing an application under Section 311, Cr.P.C., because they were witnesses who had filled up forms, are concerned, suffice it to say that other witnesses for that purpose had already been examined as for instance, Babulal (PW.1), Kailash Puri (PW.2) and Ram Narayan (PW.3) who had deposed in respect of filling up of the forms and they had already come in the witness bos during the trial.

Para-13- For the aforesaid reasons, this criminal misc. petition succeeds. Consequently, this criminal misc. petition is allowed and the order dated 22.10.1999 passed by the learned Additional Chief Judicial Magistrate, No.1 Jaipur District, Jaipur in Criminal Case No.85/1999 (State vs. Vinod Kumar Singh) is quashed and set aside."

In the case of State of Haryana vrs. Ram Meher and Others; (2016) 8 SCC 762, Hon'ble Apex Court held that :-

"Concept of fair trial cannot be limitlessly stretched to permit recall of witness endlessly on the ground of magnanimity etc. Petition under Section 311, Cr.P.C. was not allowed."

In the leading case, i.e., Rajaram Prasad Yadav vrs. State of Bihar and another; (2013) 14 SCC 461 Hon'ble Apex Court held that:-

"Para-23- We find that the factors noted by the trial court and the conclusion arrived at by it were all appropriate and just, while deciding the application filed under Section 311, Cr.P.C. We do not find any bona fides in the application of the second respondent, while seeking the permission of the Court under Section 311, Cr.P.C. for his re-examination by merely alleging that on the earlier occasion he turned hostile under coercion and threat meted out to him at the instance of the appellant and other accused.

It was quite apparent that the complaint, which emanated at the instance of the appellant based on the subsequent incident, which took place on 30.05.2007, which resulted in the registration of the FIR in Khizersarai Police Station in Case

No.78/2007, seem to have weighed with the second respondent to come forward with the present application under Section 311, Cr.P.C. by way of an afterthought. If really there was a threat to his life at the instance of the appellant and the other accused, as rightly noted by the Court below, it was not known as to why there was no immediate reference to such coercion and undue influence meted out against him at the instance of the appellant, when he had every opportunity to mention the same to the learned trial Judge or to the police officers or to any prosecution agency. Such an indifferent stance and silence maintained by the second respondent herein and the categorical statement made before the Court below in his evidence as appreciated by the Court below was in the proper perspective, while rejecting the application of the respondents filed under Section 311, Cr.P.C. In our considered opinion, the trial court, had the opportunity to observe the demeanour of the second respondent, while tendering evidence which persuaded the trial court to each the said conclusion and that deserves more credence while examining the correctness of the said order passed by the trial

Court.

Para-24-In the light of the above conclusion, applying the various principles set out above, we are convinced that the order of the trial court impugned before the High Court did not call for any interference in any event behind the back of the appellant herein. The appeal, therefore, succeeds. The order impugned dated 09.12.2010, passed in Crl.M.P. 12454/2010 of the High Court is set aside. The order of the trial court stands restored. The trial court shall proceed with the trial. The stay granted by this court in the order dated 7.03.2011, stands vacated. The trial court shall proceed with the trial from the stage it was left and conclude the same expeditiously, preferably within three months from the date of receipt of the copy of this order."

On perusal of the impugned order dated 19.01.2021, it quite is luculent that the power under Section 311, Cr.P.C. is quite wider. It is often quoted wider the discretion greater is the need for restraint and exercise of judicial discretion. In the instant case, after closure of evidence the matter has been posted for judgment and P.W.24 has been cross- examined at length and the matter has been targeted by the Hon'ble Apex Court by the end of March, 2021, at this stage

further opportunity to the petitioner would amount to fiddling with witnesses and provision of Section 311, Cr.P.C. does not permit a party to use/abuse the same at his "pleasure and leisure" under the garb of application of the same at the stage of trial or on any ground/plea when the same ground/plea has already been addressed.

When the matter is posted for delivery of judgment, it goes without saying the trial has reached at the final stage. The petitioner by his own conduct though guilty of laches and delay is attributable to him in not being prompt in filing petition under Section 311, Cr.P.C. at the appropriate time.

On cumulative effect on the aforesaid facts and judicial pronouncement coupled with the fact that deadline has been fixed by the Hon'ble Apex Court, this Court does not find any infirmity or illegality committed by the learned trial court warranting interference with order dated 19.01.2021 passed by the learned Additional Sessions Judge, Paralakhemundi in S.T. Case No.36 of 2018.

Accordingly, the CRLMC being devoid of merit is dismissed.

Urgent certified copy of this order be granted on proper application.

.......................

P. Patnaik, J.

JB