Dismissed

Salman Khan v. State

Rajasthan HC10 Apr 2015CRLMP/606/2015

Case brief

AI extract

What is this about?

In a criminal arms案, the High Court held that petitions under Section 482 Cr.P.C. are maintainable against interlocutory orders under Section 311 Cr.P.C. It allowed the production of link evidence and witnesses previously overlooked due to oversight, ruling that the ends of justice outweigh procedural delays, and dismissed the revision.

What did the court decide?

The Criminal Misc. Petition filed under Section 482 Cr.P.C. challenging the trial court's order allowing production of documents and witnesses was dismissed.

Salman Khan Vs State — Civil Procedure and Limitation | Rajasthan HC (2015)

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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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O R D E R

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S.B.CRIMINAL MISC. PETITION NO.606/2015

Salman Khan

Vs.

State of Rajasthan

Date of Order : : 10^th April, 2015

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HON’BLE MS.JUSTICE NIRMALJIT KAUR

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Mr.Mahesh Bora, Senior Counsel assisted by Mr.H.M.Saraswat & Mr.Nishant Bora, counsel for the petitioner. Mr.Vikram Rajpurohit, counsel for the State.

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Reportable

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The Criminal Misc. Petition has been filed under Section 482 of the Cr.P.C. against two orders of the even date i.e. 03.03.2015 passed by the learned Chief Judicial Magistrate, District Jodhpur in Regular Criminal Case No.533/2014 (Old Case No.68/2011) registered for offence under Section 3/25 & 27 of the Arms Act, vide which, both the applications filed by the prosecution under Sections 91, 173(8) read with Section 242 of the Cr.P.C. and under Section 311 of the Cr.P.C. were allowed.

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The brief facts of the case are that on 15.10.1998, one Lalit Bora filed a complaint at Police Station Luni, Jodhpur against the petitioner stating that in the intervening night of 01.10.1998 and 02.10.1998, the petitioner hunted two black bucks at village Kankani by using two revolver i.e. (i) Revolver S. & W. .32 Bore,

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Number 87011 made in U.S.A. and (ii) .22 Bore Rifle No.2118, for which, he did not have a valid arms license on the date of the alleged incident. On the basis of the said complaint, an FIR was registered against the petitioner for allegedly committing offence under Section 3 read with Section 25 and Section 27 of the Arms Act, 1959. Charge-sheet was filed on 10.10.2000 and the charges were framed on 27.01.2001. The petitioner is also arraigned as an accused in Criminal Case No.66/2011 (Old Case No.352/2000), which was registered as a complaint case by the Forest Department on 17.06.2000 for the offences under Sections 2(16), 9/51, 9/52 of the Wild Life Protection Act. In the said case, the learned court below took cognizance against the petitioner and five other co-accused for offences under Section 51 of the Wild Life Protection Act, under Section 148 of the Indian Penal Code and under Section 27 of the Arms Act. The charges were also framed against the petitioner for the said offences in that case. However, the petitioner already stands discharged for the offence under Section 27 of the Arms Act and the trial of the case for remaining offences is still pending and is at the stage of evidence.

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An application under Section 311 of the Cr.P.C. was moved by the prosecution on 14.08.2006 and another application under Section 91, 173(8) read with Section 242 of the Cr.P.C. was filed on 30.08.2006. Reply to these applications were filed by the petitioner on 05.09.2006 and 18.09.2006 respectively. Before the said applications could be decided, the record of the trial court was called by the High Court in S.B. Criminal Revision Petition

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No.858/2006. Thereafter, the record was received back on 25.05.2013. On receipt of the said record, the evidence of the prosecution commenced once again. After recording the evidence of the prosecution witnesses, the evidence of the prosecution was closed by an order dated 15.01.2014. Thereafter, the defence evidence was closed on 08.12.2014 and the matter was fixed for arguments. The final arguments were heard on 09.02.2015, which continued up till 10.02.2015. The learned Magistrate fixed 25.02.2015 for pronouncement of the judgment in the matter. Meanwhile, before the judgment could be pronounced, an application for hearing the above mentioned two applications dated 14.08.2006 & 30.08.2006 was moved on 20.02.2015 by the prosecution and on the date fixed for pronouncement of the judgment, the learned Magistrate is stated to have informed the petitioner’s counsel that four applications moved by the prosecution in the year 2006 are still pending and the same have to be decided before the judgment could be pronounced in the matter. Reply to all the applications were filed in the year 2006 itself and thereafter, the prosecution never brought up the applications. After 9 years, on 03.03.2015, the trial court allowed two out of the four applications: (i) under Sections 91 & 173(8) read with Section 242 of the Cr.P.C. and (ii) under Section 311 of the Cr.P.C., thereby granting another opportunity to the prosecution to submit acknowledgment receipts and documents pertaining to sending/despatching FSL reports in the matter and has also allowed the prosecution to produce four witnesses who

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are relevant in connection with the said reports.

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While impugning the above two orders, the learned counsel for the petitioner contended that the same are de hors the provisions of law including the Code of Criminal Procedure and are against all the established principles of fair trial jurisprudence and that the prosecution was trying to fill up all the loopholes in the present matter, which was pointed by the defence during the final arguments. The prosecution was well aware of these pending applications. However, they chose not to bring up the said applications till the entire defence had been disclosed and the final arguments were completed. The same shall cause severe prejudice, great hardship and irreparable damage & injury to the petitioner. Further, the same Magistrate had rejected the application field by the petitioner under Section 311 of the Cr.P.C. to summon relevant witness, the Arms Licensing Authority, on the ground that application had been filed at a belated stage with intention to delay the proceedings but has allowed the application of the prosecution in complete disregard of the same principle. Last but not the least, it was argued that the documents are not a part of the challan and the witnesses sought to be produced were never investigated by the police and their statements were never recorded under Section 161 of the Cr.P.C. It is further contended that subsequent witnesses and documents could be allowed to be produced only, in case, subsequent charge-sheet was filed in pursuance to further investigation conducted under Section 173(8) of the Cr.P.C. In the present case, neither was there any further

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investigation and nor a subsequent charge-sheet. Hence, the prosecution cannot be allowed to examine such witnesses.

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Reliance was placed on the judgment rendered by the learned Single Judge of the Madras High Court in the case of State by Inspector of Police Vs. S.Sankaran & Anr., reported in 2005 Crl.L.J. 1474 to contend that no permission can be granted to examine new witness who had not given the statement under Section 161 of the Cr.P.C. at the time of investigation as well as the order dated 10.05.2013 passed by the learned Single Judge of this High Court in the case of Deepak Gopalia Vs. State of Rajasthan & Ors. (S.B.Criminal Misc. Petition No.2536/2012), vide which, the order dismissing the application under Section 311 was upheld on the ground that once the defence has disclosed its stand in the statement under Section 313 of the Cr.P.C., an opportunity to examine new witness will not only amount to filling up the lacuna but shall also destroy the gains made by the defence.

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Reply has been filed.

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Besides the reply, learned counsel for the State raised the preliminary objection that petition under Section 482 of the Cr.P.C. is not maintainable and the impugned order being revisable, the petitioner should have filed revision. In their reply to petition under Section 482 of the Cr.P.C., it is stated that the State had filed a revision petition before the High Court bearing S.B. Criminal Revision Petition No.858/2006. The record of the case was summoned by the High Court. Thereafter, reminder was sent to

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the Deputy Registrar (Judl.), Rajasthan High Court, Jodhpur for sending the record on 23.03.2013, which was received only on 25.05.2013. The proceedings of the trial court were pending during all these long years. Meanwhile, counsels for the prosecution changed from time to time and so also the Presiding Officers and the case was also transferred to different courts resulting in oversight and overlooking the applications filed by the prosecution in the year 2006 but as soon as the prosecution realized about the pendency of the present applications, an application was moved before the trial court on 20.02.2015 for deciding the pending applications dated 14.08.2006 and 30.08.2006.

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It is further submitted by the learned counsel for the State that the argument of the learned counsel for the petitioner with respect to the similar application moved by the petitioner under Section 311 of the Cr.P.C. having been rejected by the Magistrate was no more relevant as the said order of the Magistrate stood merged with the order of the High Court dated 28.01.2015 partly allowing S.B. Criminal Misc. Petition No.131/2015, vide which, the petitioner was allowed to exhibit the document.

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The parties were heard at length.

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The preliminary objection with respect to the maintainability of petition under Section 482 of the Cr.P.C. has been raised by the learned counsel for the respondent although not taken in the reply. However, the question of maintainability of the petition under Section 482 of the Cr.P.C. on account of the order being revisable

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was dealt by the Apex Court in the case of Sethuraman Vs. Rajamanickam, reported in 2009 Cri.L.J 2247. The Apex Court held in no uncertain terms that the said orders were interlocutory in nature and revision was clearly not maintainable, as under:-

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“4. Secondly, what was not realized was that the order passed by the Trial Court refusing to call the documents and rejecting the application under Section 311 Cr.P.C., were interlocutory orders and as such, the revision against those orders was clearly barred under Section 397(2) Cr.P.C. The Trial Court, in its common order, had clearly mentioned that the cheque was admittedly signed by the respondent/accused and the only defence that was raised, was that his signed cheques were lost and that the appellant/complainant had falsely used one such cheque. The Trial Court also recorded a finding that the documents were not necessary. This order did not, in any manner, decide anything finally. Therefore, both the orders, i.e., one on the application under Section 91 Cr.P.C. for production of documents and other on the application under Section 311 Cr.P.C. for recalling the witness, were the orders of interlocutory nature, in which case, under Section 397(2), revision was clearly not maintainable. Under such circumstances, the learned Judge could not have interfered in his revisional jurisdiction. The impugned judgment is clearly incorrect in law and would have to be set aside. It is accordingly set aside. The appeals are allowed.”

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Moreover, in the case of State by Dharimal Tobacco Products Ltd. & Ors. Vs. State of Maharasthra & Anr., reported in 2009(2) SCC 370, too, the Apex Court observed that maintainability of revision cannot be a bar for entertaining an application under Section 482 of the Cr.P.C. In any case, the State has not been able to show as to how the impugned orders were revisable and in the circumstances, this court is of the view that the only alternative remedy available to the petitioner was to challenge the impugned orders under Section 482 of the Cr.P.C.

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The next question is as to whether documents which are not

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part of the charge-sheet or the witnesses whose statements have not been recorded under Section 161 of the Cr.P.C. can be allowed to be summoned under Section 311 of the Cr.P.C. for recording their evidence?

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Learned counsel for the petitioner in support of his arguments has placed reliance on the judgment rendered by the learned Single Judge of Madras High Court in the case of State by Inspector of Police Vs. S.Sankaran & Anr. (supra). However, in the said case, the said permission to examine the witnesses as additional evidence was declined not because the witnesses cited had not given their statements under Section 161 of the Cr.P.C. at the time when the investigation was going on but because the material witnesses who were cited as witness in the charge-sheet, were still available and instead of proving the case by recording the statement of such witnesses, the prosecution was attempting to examine some other witnesses against whom they could wield undue influence.

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In order to adjudicate whether in the facts of the present case, such documents which are not part of the challan can be allowed to be produced, it would be necessary to refer to Section 91 of the Criminal Procedure Code:-

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“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

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it, or to produce it, at the time and place stated in the summons or order.

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(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.”

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Similarly, while dealing with the objection that witnesses whose statements have not been recorded under Section 161 of the Cr.P.C. cannot be called upon to give their evidence, reference to Section 311 of the Cr.P.C. would be necessary, which reads as under:-

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“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.

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A perusal of the above makes it clear that additional witness can be summoned even though he or she was not earlier summoned as a witness, if his/her evidence is essential for the just decision of the case. Similarly, Section 91 of the Cr.P.C. allows the Court as well as any officer incharge of a police station to summon a person who had the possession of such a document. There is no distinction in the provision with respect to documents which are a part of the charge-sheet or which are not a part of the charge-sheet. In fact, it specifically states “any document” and “any witness” as long as they are necessary for the proper

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adjudication of the case and relevant for arriving at the truth.

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Moreover, in the present case, from the two applications under Section 91 and under Section 311 of the Cr.P.C. moved by the prosecution, the replies filed by the defence and the order of the trial court, some of the following facts have emerged:-

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(a) By an order dated 26.06.2006, the following documents were already taken on record: (i) F.S.L. Report No.228/98 dated 22.02.1998 which is regarding Revolver .32 No.87011 and .22 Rifle No.2118 and their memo of seizure is ExhibitP/2A, and (ii) Besides this, F.S.L. Report No.17/1999 dated 19.02.1999 regarding sample of the black buck No.1 dated 11.10.1998 taken from the spot is already on the record.

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(b) However, the documents relating to malkhana register for sending the items of FSL were not filed nor the documents to prove the FSL report No.228/1998 and nor the documents to prove FSL report No.17/1999, which are otherwise essential for link evidence, were placed on record.

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(c) These documents are otherwise present in their original form in Criminal Case No.352/2000, which have already been supplied to counsel for the accused in Criminal Case No.352/2000. Both the cases are related to the same incident. The petitioner already stands discharged for the offence under Section 27 of the Arms Act in the said case.

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Thus, from the above, it appears that the documents sought to be produced are in any case part of the Criminal Case No.352/2000 which was registered as a complaint case by the

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Forest Department.

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Although, there is some merit in the argument of learned counsel for the petitioner that even though the applications were moved in the year 2006, the witnesses are being sought to be produced only now after the closure of the defence evidence leading to the disclosure of the defence of the accused and thus, granting opportunity to the prosecution to fill up the lacuna as held by this Court in the case of Deepak Gopalia Vs. State of Rajasthan & Ors. (supra), it would not entirely correct to state that the applications have been filed at a belated stage after the arguments were heard and the matter was kept for pronouncement of the judgment. It is evident from the facts that the applications were moved way back on 14.08.2006 & 30.08.2006 and the reply to the said applications already stood filed on 05.09.2006 and 18.09.2006 respectively but before the said applications could be decided, the record of the trial court was sent to the High Court in S.B.Criminal Revision Petition No.858/2006. Subsequently, the record was received only on 25.05.2013. It is also not in dispute that number of counsels for the prosecution and Presiding Officers changed meanwhile leading to oversight and overlooking of the applications filed way back in the year 2006. It was clearly an error. In these circumstances, it cannot be said that the applications were an afterthought or filed after the defence evidence was closed.

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The Apex Court in the case of Hanuman Ram Vs. The State of Rajasthan and others 2008 (4) RCR (Criminal) 823 has, in fact,

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while interpreting the powers under Section 311 of Cr.P.C, held that Section 311 Cr.P.C makes it mandatory for the Court to summon a witness, in case, the said witness was necessary for the just and proper decision to the facts of the present case and cannot be refused on account of error of the party . The Court further laid down the object underlying Section 311 of the Code, which reads:-

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“7. 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 for the prosecution and not that of the accused. The section is a general section which applies to all proceedings, enquires 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 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 CRM No. M 11970 of 2011 5 power on the Court on summoning witnesses, the discretion conferred is to be exercised judiciously, as the wide the power the greater is the necessity for application of judicial mind.”

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Similarly, while dealing with such error and oversight, the Apex Court in the case of Rajendra Prasad Vs. Narcotic Cell through its Officer Incharge, Delhi, reported in 1999 Cr.L.J. 3529, held:-

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“It is a common experience in criminal courts that defence counsel would raise objections whenever courts exercise powers under Section 311 of the Code or under Section 165 of the Evidence Act by saying that the Court could not fill the lacuna in the

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prosecution case'. A lacuna in prosecution is not to be equated with the fallout of an oversight committed by a public prosecutor during trial, either in producing relevant materials or in eliciting relevant answers from witnesses. The adage `to err is human' is the recognition-of the possibility of making mistakes to which humans are proved. A corollary of any such latches or mistakes during the conducting Of a case cannot be understood as the lacuna which a court cannot fill up.

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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 trail of the case, but an over sight in the management of the prosecution cannot be treated as irreparable lacuna. No party in a trial can before-closed 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.”

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The Apex Court further went on to say:

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“We cannot therefore accept the contention of the appellant as a legal proposition that the Court cannot exercise power of re-summoning any witness if once that power was exercised, nor can the power be whittled down merely on the ground that prosecution discovered latches only when the defence highlighted them during final arguments, The power of the court is plenary to summon or even recall any witness at any stage of the case if the court considers it necessary for a just decision.”

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Moreover, the provision of Section 311 of the Cr.P.C. permits the calling of a witness and producing document at any stage as long as the same is before the pronouncement subject to the condition that the said document should be relevant and essential for the just decision of the case. Wide power has been conferred to meet the ends of justice. If the Court comes to the

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conclusion that the same is essential, the Statute makes it mandatory on the Court to summon such a witness. The Apex Court in the case Mohanlal Shamji Soni Vs. Union of India, reported in AIR 1991 SC 1346, while dealing with the jurisdiction of the Court under section 311 of the Code has laid down that :-

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"It is a cardinal rule in the law of evidence that the best available evidence should be brought before the Court to prove a fact or the points in issue. But it is left either for the prosecution or for the defence to establish its respective case by adducing the best available evidence and 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 sides. It is the duty of the Court not only to do justice but also to ensure that justice is being done. In order to enable a Court to find out the truth and render a just decision, the salutary provisions of section 540 of the Code (section 311 of the new Code) are enacted whereunder any Court by exercising its discretionary authority at any stage of inquiry, trial or other proceeding can summon any person as a witness or examine any person in attendance though not summoned as a witness or recall or re-examine any person in attendance though not summoned as a witness or recall or re-examine any person already examined who are expected to be able to throw light upon the matter in dispute; because if judgments happen to be rendered on inchoate, inconclusive and speculative presentation of facts, the ends of justice would be defeated. The very usage of the 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 this section is expressed in the widest possible terms and do not limit the discretion of the Court in any way. However, the very width requires a corresponding caution that the discretionary power 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

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does not allow for any discretion but it binds and compels the Court to take any of the aforementioned two steps in the fresh evidence to be obtained is essential to the just decision of the case."

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Still further, the Apex Court in the case of Raja Ram Prasad Yadav Vs. State of Bihar & Anr., reported in 2013(2) Apex Court Judgments 604 (S.C.) has laid down the following principles to be borne in mind by the courts while exercising powers under Section 311 of the Cr.P.C.:-

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“23. From a conspectus consideration of the above decisions, while dealing with an application under Section 311 Cr.P.C. 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 Court for a just decision of a case?

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b) The exercise of the widest discretionary power under Section 311 Cr.P.C. 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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c) 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 reexamine any such person.

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d) The exercise of power under Section 311 Cr.P.C. 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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e) The exercise of the said power cannot be dubbed as filling in a lacuna in a prosecution case, unless the facts and 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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f) The wide discretionary power should be exercised judiciously and not arbitrarily.

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g) 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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h) The object of Section 311 Cr.P.C. simultaneously imposes a duty on the Court to determine the truth and to render a just decision.

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i) 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 justice without such evidence being considered.

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j) 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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k) 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 at the cost of the accused. The Court should bear in mind that improper or capricious exercise of such a discretionary power, may lead to undesirable results.

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

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ensured being a constitutional goal, as well as a human right.”

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Thus, in view of the above discussion, the only limit to the wide powers appears to be the underlying golden rule that witness and the document sought to be produced should be necessary for the just decision of the case with the object of finding out the truth or obtaining proper proof for such fact. The objection that the application has been moved only to fill a lacuna is normally raised in each and every case. In case, an application under Section 311 of the Cr.P.C. is dismissed on this ground alone, the very purpose of Section 311 of the Cr.P.C. would be defeated and the same would become redundant. The same depends upon facts of each case. Moreover, the right of the petitioner can always be safeguarded by granting equal opportunity to cross-examine, lead evidence, etc. in accordance with law.

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Keeping the above principle in mind, we need to examine now whether these documents are material to the just decision of the case.

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The F.S.L. report No.222/1998 dated 22.02.1998 and the F.S.L. report No.17/1998 dated 19.02.1999 and the F.S.L. report No.222/1998 dated 20.01.1999 are already present on records. However, the documents related to them including Malkhana register, letter for sending it to S.P. Office, letter of S.P. for sending it to F.S.L. and receipt of F.S.L. relating to all these reports although are stated to be present in their original form in Criminal Case No.352/2000, have not been filed in the present

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case. From para 18 of the impugned order dated 03.03.2015, vide which, the application under Order 91, 173(8) read with Section 242 of the Cr.P.C. was allowed, it appears that the evidence sought to be produced is the link evidence and hence, necessary for the just decision of the case. Moreover, it is not the case of the petitioner that they are not necessary documents and the witnesses are not relevant and necessary for the just decision of the case. Hence, the Court finds no ground to interfere in the impugned orders dated 03.03.2015 passed by the trial court.

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Dismissed accordingly.

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(NIRMALJIT KAUR), J.

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Salman Khan v. State

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Salman Khan v. State

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