Allowed

Tarak Nath Manna v. The State Of Bihar Through C.b.i.

Patna HC9 Apr 2014CR. MISC./1817/2014

Case brief

AI extract

What is this about?

The High Court of Patna, in Criminal Miscellaneous No.1817 of 2014, allowed an application for quashing an order rejecting a prayer under Section 311 Cr.P.C. to summon a witness and produce evidence. The Court held that the exercise of Section 311 discretion is to ensure a just decision and fair trial, and the belated stage of application does not bar examination of relevancy.

What did the court decide?

The order dated 12.07.2013 passed by the learned JM, 1st Class, Patna is quashed with liberty to the trial court to consider the petitioner's prayer and pass appropriate order within one month.

Tarak Nath Manna Vs The State Of Bihar Through C.b.i. — Criminal Trial and Appeal | Patna HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.1817 of 2014

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====================================================== Tarak Nath Manna

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.... .... Petitioner/s Versus The State of Bihar Through C.B.I. .... .... Opposite Party/s ====================================================== CORAM: HONOURABLE MR. JUSTICE DINESH KUMAR SINGH ORAL ORDER 6 09-04-2014 The present application has been filed for quashing of

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The present application has been filed for quashing of the order dated 12.07.2013 passed by learned JM, 1^st Class, Patna in R.C. Case No. 10(S) of 1990 (Ranchi) whereby the prayer of the petitioner under Section 311 Cr. P.C. for permitting the petitioner for exhibiting the certificate issued by the Principal of City College of Commerce and Business Administration as evidence and for calling the Principal of the said college as a witness, has been rejected.

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The prosecution case is that the petitioner got appointed as Sports Organizer in Hindustan Fertilizer Corporation Limited on the basis of forged caste certificate. Three caste certificates were submitted by the petitioner to the authorities but in two caste certificates the petitioner was depicted belonging to two different castes.

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It is submitted by learned counsel for the petitioner that the learned Magistrate mechanically rejected the prayer of the petitioner only on the ground that while the case was instituted in the year 1990, the defence evidence was closed in the year 2003,

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hence the application under Section 311 Cr. P.C. was made to delay the trial but the learned court below never considered the relevancy of alleged evidence for reaching to the just decision of the case.

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It is submitted by Mr. Bipin Kumar Sinha, learned counsel for C.B.I. that the case was registered on 30.06.1990, chargesheet was submitted on 18.03.1991, charges were framed on 30.06.1994, prosecution evidence was closed on 26.11.1998 and the statements of the accused were recorded under Section 313 Cr. P.C. on 01.05.2000, thereafter, the defence evidence was closed on 03.01.2003. The trial got delayed due to re-organization of the erstwhile State of Bihar and the same was transferred from the State of Jharkhand to Bihar in the year 2005. The petitioner‟s bail bonds were cancelled in the year 2003 for a brief period. Hence, the prayer for allowing the certificate dated 20.11.2012 for being exhibited and calling of the Principal of City College of Commerce and Business Administration as a witness is a sinister design to delay the disposal of the trial.

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Considering the rival submissions of the parties, it is relevant to quote the relevant provisions of Section 311 Cr. P.C. which reads as follows:-

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“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-

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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”.

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Section 311 Cr. P.C. empowers the court to summon a

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material witness, or to examine a person present at “any stage” of “any enquiry”, or “trial”, or “any other proceedings” under Cr. P.C., or to summon any person as a witness, or to recall and reexamine any person who has already been examined if his evidence appears to it, to be essential to reach just decision of the case.

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Undoubtedly, Cr. P.C. has conferred a very wide discretionary power upon the court in this respect, but such 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.

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The Apex Court in the case of Mir Mohd. Omar Vs. State of West Bengal, reported in (1989) 4 Supreme Court Cases 436 held that the jurisdiction under Section 311 Cr. P.C. cannot be

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exercised for filling up a lacuna existing in the prosecution case, once the accused has been examined under Section 313 Cr. P.C.

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The Apex Court in the case of Mohanlal Shamji Soni Vs. Union of India reported in 1991 Supp(1) Supreme Court Cases 271 examined the scope of Section 311 Cr.P.C., and held that it is a cardinal rule of the law of evidence, that the best available evidence must be brought before the court to prove a fact, or a point in issue. However, the court is under an obligation to discharge its statutory functions, whether discretionary or obligatory, according to law and hence, ensure that justice is done. The court has a duty to determine the truth, and to render a just decision. The same is also the object of Section 311 CrPC, wherein the court may exercise its discretionary authority at any stage of the enquiry, trial or other proceedings, to summon any person as a witness though not yet summoned as a witness, or to recall or re-examine any person, though not yet summoned as a witness, who are expected to be able to throw light upon the matter in dispute, because if the judgments happen to be rendered on an inchoate, inconclusive and speculative presentation of facts, the ends of justice would be defeated.

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No doubt, neither the alleged certificate was produced earlier nor any prayer was made to call the Principal of City

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College of Commerce and Business Administration as a witness earlier but the said prayer cannot be refused merely because the accused have been examined under Section 313 Cr. P.C. or the defence evidence has been closed. The Apex Court in the case of Mohanlal Shamji Soni (supra) held that the prayer under Section 311 Cr. P.C. for examining any witness or documentary evidence cannot be denied as grant of fairest opportunity to the accused to prove his innocence is the object of every fair trial which has been reiterated by the Apex Court in the case of Hoffman Andreas Vs. Inspector of Customs, Amritsar, reported in (2000)10 Supreme Court Cases 430 in following words:-

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“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”.

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The Apex Court in the case of Rajendra Prasad Vs. Narcotic Cell, reported in (1999)6 SCC 110, has defined the

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meaning of lacuna in paragraph no. 8 and held that 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.

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The Apex Court in the case of Natasha Singh Vs. CBI reported in (2013)5 Supreme Court Cases 741 examined the scope and object of the provisions under Section 311 Cr. P.C. Paragraph nos. 15 and 16 of the said judgment read as follows:-

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“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

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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,

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whether the summoning/recalling of the said witness is in fact, essential to the just decision of the case”.

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“16. Fair trial is the main object of criminal procedure, and it is the duty of the court to ensure that such fairness is not hampered or threatened in any manner. Fair trial entails the interests of the accused, the victim and of the society, and therefore, fair trial includes the grant of fair and proper opportunities to the person concerned, and

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the same must be ensured as this is a constitutional, as well as a human right. Thus, under no circumstances can a person‟s right to fair trial be jeopardized. Adducing evidence in support of the defence is a valuable right. Denial of such right would amount to the denial of a fair trial. Thus, it is essential that the rules of procedure that have been designed to ensure justice are scrupulously followed, and the court must be zealous in ensuring that there is no breach of the same”.

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The Apex Court in the case of Jamatraj Kewalji

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Govani Vs. State of Maharashtra reported in AIR 1968 SC 178 held that the power to call or recall a witness is absolute to be exercised at any stage of the trial for reaching to the just decision of the case. paragraph 14 of the judgment reads as follows:-

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“14. It would appear that in our criminal jurisdiction, statutory law confers a power in absolute terms to be exercised at any stage of the trial to summon a witness or examine one present in court or to recall a witness already examined, and makes this the duty and obligation of the Court provided the just decision of the case demands it. In other words, where the court exercises the power under the second part, the inquiry cannot be whether the accused has brought anything suddenly or unexpectedly but whether the court is right in thinking that the new evidence is needed by it for a just decision of the case. If the court has acted without the requirements of a just decision, the action is open to criticism but if the court‟s action is supportable as being in aid of a just decision the action cannot be regarded as exceeding the jurisdiction”.

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The Apex Court in the case of Iddar & Ors. Vs. Aabida & Anr. reported in AIR 2007 SC 3029, has also held that determinative factor in exercise of the power under Section 311 CrPC is whether it is essential to the just decision of the case. Paragraph 11 of the judgment reads as follows:-

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“11. 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 Magistrate to issue summons to any witness at any stage of such proceedings, trial or enquiry. In Section 311 the

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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”.

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The Apex Court in the case of Rajaram Prasad Yadav Vs. State of Bihar, reported in 2013(4) PLJR 34, has catalogued in paragraph 23, the principle to be followed in exercise of the power under Section 311 CrPC read along with Section 138 of the Evidence Act, which reads as follows:-

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“23. From a conspectus consideration of the above decisions, while dealing with an application under Section 311 CrPC read along with Section 138 of the Evidence Act, we feel the following principles will have to be borne in mind by the Courts:-

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(a) Whether the Court is right in thinking that the new evidence is needed by it? Whether the evidence sought to be led in under Section 311 is noted by the

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(b)

(c)

(d)

(e)

Court for a just decision of a case?

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The exercise of the widest discretionary power under Section 311 CrPC should ensure that the judgment should not be rendered on inchoate, inconclusive speculative presentation of facts, as thereby the ends of justice would be defeated.

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If evidence of any witness appears to the Court to be essential to the just decision of the case, it is the power of the Court to summon and examine or recall and re-examine any such person.

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The exercise of power under Section 311 CrPC should be resorted to only with the object of finding out the truth or obtaining proper proof for such facts, which will lead to a just and correct decision of the case.

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The exercise of the said power cannot be dubbed as filling in a lacuna in a prosecution case, unless the facts and

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(f)

(g)

(h)

(i)

circumstances of the case make it apparent that the exercise of power by the Court would result in causing serious prejudice to the accused, resulting in miscarriage of justice.

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The wide discretionary power should be

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exercised judiciously and not arbitrarily.

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The court must satisfy itself that it was in every respect essential to examine such a witness or to recall him for further examination in order to arrive at a just decision of the case.

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The object of Section 311 CrPC simultaneously imposes a duty on the Court to determine the truth and to render a just decision.

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The Court arrives at the conclusion that additional evidence is necessary, not because it would be impossible to pronounce the judgment without it, but because there would be a failure of

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(j)

(k)

justice without such evidence being considered.

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Exigency of the situation, fair play and good sense should be the safe guard, while exercising the discretion. The Court should bear in mind that no party in a trial can be foreclosed from correcting errors and 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.

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The Court should be conscious of the position that after all the trial is basically for the prisoners and the Court should afford an opportunity to them in the fairest manner possible. In that parity of reasoning, it would be safe to err in favour of the accused getting an opportunity rather than protecting the prosecution against possible prejudice

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(l)

(m)

(n)

at the cost of the accused. The Court

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should bear in mind that improper or

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capricious exercise of such a discretionary power, may lead to undesirable results.

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The additional evidence must not be received as a disguise or to change the nature of the case against any of the party.

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The power must be exercised keeping in mind that the evidence that is likely to be tendered, would be germane to the issue involved and also ensure that an opportunity of rebuttal is given to the other party.

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The power 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 care, caution and circumspection. The Court should bear in mind that fair trial entails

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the interest of the accused, the victim and the society and, therefore, the grant of fair and proper opportunities to the persons concerned, must be ensured being a constitutional goal, as well as a human right.”

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Applying the aforesaid settled principles to the present case, it appears that the learned Magistrate has not made any endeavor to examine the relevancy of the alleged certificate or the examination of the Principal of the concerned college as a witness, being a relevant evidence for reaching to the just decision of the case which is a sine qua non for exercise of the jurisdiction under Section 311 of the CrPC. Section 311 CrPC clearly lays down that this power can be exercised at any stage of any enquiry, trial or any other proceeding, hence the prayer cannot be refused on this ground that it has been made at very belated stage.

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True it is that the FIR was instituted in the year 1990, the defence evidence was closed in the year 2003 and the application was filed by the petitioner at a very belated stage but in the interest of justice and to allow the principle of fair trial to be followed, this Court is of the view that the learned Magistrate should examine the prayer of the petitioner under Section 311

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CrPC afresh.

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Accordingly, to secure the ends of justice, the order dated 12.07.2013 passed by learned JM, 1^st Class, Patna in R.C. Case No. 10(S) of 1990 (Ranchi) is hereby quashed with liberty to the trial court to consider the prayer of the petitioner and pass appropriate order within a period of one month from receipt/production of the copy of this order in view of the anxiety of learned counsel for the C.B.I. to conclude the trial at the earliest.

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Accordingly, the application is allowed.

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Let the order be transmitted through fax at the cost of

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either party.

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(Dinesh Kumar Singh, J)

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Amrendra/-

Tarak Nath Manna v. The State Of Bihar Through C.b.i.

Case brief

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Tarak Nath Manna v. The State Of Bihar Through C.b.i.

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