MANJU DEVI versus STATE OF RAJASTHAN & ANR. on 16 April 2019

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[2019] 6 S.C.R. 68

SUPREME COURT REPORTS [2019] 6 S.C.R. 68

[2019] 6 S.C.R.

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MANJU DEVI

v.

STATE OF RAJASTHAN & ANR.

(Criminal Appeal No. 688 of 2019)

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APRIL 16, 2019

[ABHAY MANOHAR SAPRE AND

DINESH MAHESHWARI, JJ.]

Code of Criminal Procedure, 1973: s. 311 – Power to summonCmaterial witness, or examine person present – On facts, accusedfacing trial for offences u/ss. 302, 304B and 498A IPC due to deathof his wife under unnatural circumstances in Nigeria – First postmortem of the victim carried out by the doctor in Nigeria –Application u/s. 311 by mother of the victim seeking summoning ofthe said doctor through High Commission of Nigeria or to recordDhis evidence through video conferencing after issuing a commissionfor the purpose – Rejected by trial court as also High Court – Onappeal, held: Testimony of the Nigerian doctor who conducted thefirst post-mortem in Nigeria is germane to the questions involved inthis matter; and for a just decision of the case with adequateEopportunity to both the parties to put forward their case, theapplication u/s. 311 allowed – Length/duration of a case cannotdisplace the basic requirement of ensuring the just decision aftertaking all the necessary and material evidence on record – Trialcourt to take all the necessary measures for ensuring the examinationof the witness concerned by issuing commission and/or recordingFhis statement through video-conferencing.

Allowing the appeal, the Court

HELD: 1.1 The discretionary powers like those underSection 311 of the Code of Criminal Procedure, 1973 areGessentially intended to ensure that every necessary andappropriate measure is taken by the Court to keep the recordstraight and to clear any ambiguity in so far as the evidence isconcerned as also to ensure that no prejudice is caused to anyone.[Para 9.1][76-F]

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1.2 The copy of the post-mortem report prepared by thedoctor in Nigeria has, been placed on record wherein, the causeof death is stated as “asphyxia secondary to strangulation”. Thoughthe dead-body of the daughter of appellant was brought to Indiaon 29.01.2010 and Medical Board was constituted for conductingthe post-mortem but then, the Board found that no definite opinioncould be given regarding the time and cause of death. Theinvestigating agency, for the reasons best known to it, did notcite the said doctor, who conducted the first post-mortem inNigeria as a witness. It is also not the case on behalf of the accusedthat the copy of the post-mortem report dated 16.01.2010prepared in Nigeria was not disputed and/or he would not beseeking to cross-examine the said doctor, if he is examined as awitness in this matter. In the given set of facts and circumstances,it is evident that the testimony of the said doctor who conductedthe first post-mortem in Nigeria is germane to the questionsinvolved in this matter; and for a just decision of the case withadequate opportunity to both the parties to put forward their case,the application under Section 311 CrPC ought to have beenallowed. [Para 10][76-E-H; 77-A]

1.3 The peculiar facts and circumstances of the case haveeither been ignored or have been cursorily dealt by the trial courtwith the observations that the effect of non-availability of theoriginal post-mortem report would be considered at the time ofthe final disposal of the matter. In fact, the principal reasonweighing with the trial court in declining the prayer forexamination of the said witness had been that the case was pendingsince the year 2010. The High Court, on the other hand, chosenot to exercise its powers under Section 482 CrPC, with the onlyobservation that the discretion so exercised by the trial courtwas not to be interfered with. [Para 11][77-B-C]

1.4 Though it is expected that the trial of a sessions caseshould proceed with reasonable expedition and pendency of sucha matter for about 8-9 years is not desirable but then, the length/duration of a case cannot displace the basic requirement ofensuring the just decision after taking all the necessary andmaterial evidence on record. In other words, the age of a case, AB

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Aby itself, cannot be decisive of the matter when a prayer is madefor examination of a material witness. [Para 12][77-D]

1.5 In the given set of facts and circumstances, where thewitness Dr. Y is residing in Nigeria, for the purpose of recordingof his statement, the trial court could have unquestionably takenBrecourse to the provisions of Sections 284 and 285 CrPC so asto avoid the delay in the matter and inconvenience to the partiesand the witness. On the question of inconvenience likely to becaused in the event of summoning of the said witness fromNigeria, noticeable it is that the appellant made a prayer that thedoctor concerned being not available in the country, the orderCmay be passed for taking his evidence by issuing commissionunder Sections 284 and 285 CrPC. In the instant case too, wherethe witness Dr. Y is residing in Nigeria, in order to avoidinconvenience to the witness as also to the parties, issuing ofcommission and recording his evidence through video- Dconferencing appears to be a viable alternative; and the trial courtneed to take all the requisite steps so as to ensure that hisevidence comes on record with least inconvenience and/or burdento the parties and the witness. [Paras 13, 13.1, 13.3][77-E-F;78-G-H; 79-A; 80-E-F]

EState of Maharashtra v. Dr. Praful B. Desai (2003) 4SCC 601 : [2003] 3 SCR 244 – referred to.

1.6 The trial court disposed of the application under Section311 CrPC on entirely irrelevant considerations and the High Courtalso failed to exercise its jurisdiction under Section 482 CrPCFwhile overlooking and ignoring the material and relevant aspectsof the case. The impugned orders are set aside and the applicationmoved in this matter under Section 311 CrPC is allowed. Thetrial court shall now take all the necessary measures for ensuringthe examination of the witness concerned by issuing commissionand/or recording his statement through video-conferencing andGshall also ensure expeditious proceedings so as to conclude thematter at the earliest. [Para 14, 16][80-F-H; 81-B]

Mohanlal Shamji Soni v. Union of India 1991 Supp (1)SCC 271 : [1991] 1 SCR 712 ; Zahira Habibulla H.Sheikh v. State of Gujarat (2004) 4 SCC 158 : [2004] 3

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SCR 1050 ; Mina Lalita Baruwa v. State of Orissa andOthers (2013) 16 SCC 173 : [2013] 16 SCR 788 ;Rajaram Prasad Yadav v. State of Bihar and Ors 2013(14) SCC 461 : [2013] 7 SCR 420 ; Natasha Singh v.CBI (State) 2013 (5) SCC 741 : [2013] 5 SCR 539– referred to.

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Case Law Reference

CRIMINAL APPELLATE JURISDICTION : Criminal AppealNo. 688 of 2019.

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From the Judgment and Order dated 02.08.2018 of the High Courtof Judicature for Rajasthan at Jodhpur Bench in S.B. Criminal Misc.(Petition) No. 2282 of 2018.

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Rahul Mohod, Raju Sonkar, Arun Adlakha, Karunakar Mahalik,Advs. for the Appellant.

Anish Roy, Milind Kumar, T. Harish Kumar Advs. for theRespondents.

The Judgment of the Court was delivered by F

DINESH MAHESHWARI, J.

1. Leave granted.

2. In Sessions Case No. 05 of 2015 in the Court of AdditionalSessions Judge Ratangarh, District Churu (Rajasthan), the accused-respondent No. 2 is facing trial for offences under Sections 302, 304-Band 498-A of the Indian Penal Code (‘IPC’) due to the death of his wifeunder unnatural circumstances in Nigeria. The appellant, mother of thedeceased, moved an application under Section 311 of the Code of CriminalProcedure (‘CrPC’) in the said case, seeking summoning of one Dr. I.

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AYusuf (who had conducted first post-mortem of the dead-body of theappellant’s daughter in Nigeria) through High Commission of Nigeria orto record his evidence through video-conferencing, after issuing acommission for the purpose.

2.1. By its order dated 31.05.2018, the Trial Court rejected theBapplication so moved by the appellant, essentially for reasons that thetrial was pending for almost 8 years; and that it was not necessary torecord the statement of Dr. I. Yusuf because a copy of the post-mortemreport prepared by him had already been exhibited. The appellantattempted to question the order so passed by the Trial Court before theHigh Court of Judicature for Rajasthan at Jodhpur in CriminalCMiscellaneous Petition No. 2282 of 2018. However, the High Courtdismissed the said petition by its impugned order dated 02.08.2018 withthe observation that there was no reason to interfere in the exercise ofdiscretion by the Trial Court. Aggrieved, the appellant has preferred thisappeal by special leave.

D3. The background aspects, so far relevant for the present purpose,could be noticed, in brief, as follows:

3.1. The prosecution case is that the deceased daughter of theappellant was married to the accused-respondent No. 2 on 21.04.2008at Rajaldesar; she was residing in her matrimonial home alongwith fatherEand mother of her husband; and later on she had shifted to Bangaloreand then to Nigeria with her husband but was regularly harassed withdemand for dowry. It is alleged that on 14.01.2010, the appellant’sdaughter, while living with her husband (the accused-respondent No. 2)in Nigeria, died under unnatural circumstances when she was foundFhanging from the ceiling fan in her room. An FIR bearing No. 10 of 2010was lodged at Police Station Rajaldesar, District Churu by the husbandof appellant (father of the deceased), alleging, inter alia, that his daughterwas harassed with persistent demands for dowry and she was subjectedto cruelty to the extent that it ultimately led to her death in Nigeria.

3.2. The first post-mortem of the dead-body of the appellant’sdaughter was conducted by Dr. I.Yusuf in Aminu Kanu TeachingHospital, Nigeria on 16.01.2010 who, upon examination, stated his opinionthat the cause of death was “asphyxia secondary to strangulation”.Thereafter, the dead-body of the appellant’s daughter was brought toIndia where a Medical Board was constituted for further post-mortem G

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but the Medical Board stated that no definite opinion could be formedregarding the time and cause of death of the daughter of the appellant.After investigation, charge-sheet was filed against the respondent No. 2for the offences under Sections 302, 304-B and 498-A IPC.

3.3. In the trial, the prosecution led its evidence and variouswitnesses were examined but as the members of the Board were unableto give any definite opinion as to the cause of death, an application underSection 311 CrPC was moved by the appellant, for issuance of summonsto the said Dr. I. Yusuf, Department of Pathology, Aminu Kanu TeachingHospital, Nigeria, who had first conducted the post-mortem of the dead-body of the appellant’s daughter in Nigeria, so that he may be examinedas a medical witness. It was also submitted in the alternative that theevidence of the said doctor may be recorded through video-conferencing.

4. As noticed, in its impugned order dated 31.05.2018, the TrialCourt rejected the said application while observing that the matter waspending since the year 2010 and, as the photocopy of the post-mortemreport prepared in Nigeria was available on record, it was not necessaryto record the statement of Dr. I. Yusuf. The Trial Court also observedthat the effect of want of original post-mortem report shall be examinedat the time of final decision of the matter.

5. Against the order aforesaid, the appellant filed a criminalmiscellaneous petition under Section 482 CrPC before the High Courtof Judicature for Rajasthan at Jodhpur while contending, inter alia, thatDr. I. Yusuf was a material witness in the case and the prosecution hadillegally omitted to cite him as a witness. However, the petition wasdismissed by the High Court by way of its impugned order dated02.08.2018 while observing that in the overall facts and circumstancesof the case, the discretion exercised by the Trial Court called for nointerference.

6. Assailing the order aforesaid, the learned counsel for theappellant has strenuously argued that the Trial Court and the High Courthave failed to appreciate the relevance of the evidence of Dr. I Yusuf,who conducted the first post-mortem of the dead-body of the daughterof appellant; and his testimony is essential to arrive at the just decision inthis case. The learned counsel would submit that the order of the TrialCourt rejecting the application on the ground that the trial was pendingfor last about 8 years is not of a judicious approach to the case; and that A

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Athe Trial Court should ensure that the material evidence comes on recordso as to arrive at just conclusion.

7. Per contra, learned counsel for the accused-respondent No. 2has duly supported the order impugned with the submissions that theappellant only seeks protraction of the trial with the baseless applicationBunder Section 311 CrPC. According to the learned counsel, the TrialCourt has consciously exercised its discretion in rejecting the applicationand the High Court has rightly declined to interfere.

8. Having given thoughtful consideration to the rival submissionsand having examined record with reference to the law applicable, weCfind it difficult to approve the orders impugned; and it appears just andproper that the application moved in this matter under Section 311 CrPCbe allowed with direction to the Trial Court to ensure that the testimonyof the doctor conducting first post-mortem comes on record.

9. Section 311 CrPC reads as under:-

D“311. Power to summon material witness, or examine personpresent: Any Court may, at any stage of any inquiry, trial orother proceeding under this Code, summon any person as awitness, or examine any person in attendance, though notsummoned as a witness, or recall and re-examine any personalready examined; and the Court shall summon and examineEor recall and re-examine any such person if his evidenceappears to it to be essential to the just decision of the case”

9.1. It needs hardly any emphasis that the discretionary powerslike those under Section 311 CrPC are essentially intended to ensureFthat every necessary and appropriate measure is taken by the Court tokeep the record straight and to clear any ambiguity in so far as theevidence is concerned as also to ensure that no prejudice is caused toanyone. The principles underlying Section 311 CrPC and amplitude ofthe powers of the Court thereunder have been explained by this Court inseveral decisions[1]. In Natasha Singh v. CBI (State) : (2013) 5 SCC

G741, though the application for examination of witnesses was filed by 1 Vide Mohanlal Shamji Soni v. Union of India: 1991 Supp (1) SCC 271, ZahiraHabibulla H. Sheikh v. State of Gujarat: (2004) 4 SCC 158, Mina Lalita Baruwa v.State of Orissa and Others : (2013) 16 SCC 173 and Rajaram Prasad Yadav v. State ofBihar and Ors : 2013 (14) SCC 461 and Natasha Singh v. CBI (State) : 2013 (5)HSCC 741.

the accused but, on the principles relating to the exercise of powersunder Section 311, this Court observed, inter alia, as under:- “ 8. Section 311 CrPC empowers the court to summon amaterial witness, or to examine a person present at “any stage”of “any enquiry”, or “trial”, or “any other proceedings”under CrPC, or to summon any person as a witness, or torecall and re-examine any person who has already beenexamined if his evidence appears to it, to be essential to the arrivalof a just decision of the case. Undoubtedly, the CrPC hasconferred a very wide discretionary power upon the court inthis respect, but such a discretion is to be exercised judiciouslyand not arbitrarily. The power of the court in this context isvery wide, and in exercise of the same, it may summon anyperson as a witness at any stage of the trial, or otherproceedings. The court is competent to exercise such powereven suo motu if no such application has been filed by eitherof the parties. However, the court must satisfy itself, that itwas in fact essential to examine such a witness, or to recallhim for further examination in order to arrive at a just decisionof the case.

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15. The scope and object of the provision is to enable thecourt to determine the truth and to render a just decisionafter discovering all relevant facts and obtaining proper proofof such facts, to arrive at a just decision of the case. Powermust be exercised judiciously and not capriciously orarbitrarily, as any improper or capricious exercise of suchpower may lead to undesirable results. An application underSection 311 CrPC must not be allowed only to fill up a lacunain the case of the prosecution, or of the defence, or to thedisadvantage of the accused, or to cause serious prejudiceto the defence of the accused, or to give an unfair advantageto the opposite party. Further, the additional evidence must notbe received as a disguise for retrial, or to change the natureof the case against either of the parties. Such a power mustbe exercised, provided that the evidence that is likely to be A

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Atendered by a witness, is germane to the issue involved. Anopportunity of rebuttal however, must be given to the otherparty. The power conferred under Section 311 CrPC musttherefore, be invoked by the court only in order to meet theends of justice, for strong and valid reasons, and the samemust be exercised with great caution and circumspection. TheBvery 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 provisionsof this section have been expressed in the widest possibleterms, and do not limit the discretion of the Court in any way.CThere is thus no escape if the fresh evidence to be obtained isessential to the just decision of the case. The determinativefactor should therefore be, whether the summoning/recallingof the said witness is in fact, essential to the just decision ofthe case.”

D10. The indisputable fact situation of the case remains that thedaughter of the appellant died an unnatural death on 14.01.2010 in Nigeria,where she was living with her husband (the respondent No. 2), who isstanding the trial for offences under Sections 302, 304-B and 498-AIPC. The first post-mortem of the dead-body of the daughter of appellantwas carried out on 16.01.2010 in Aminu Kanu Teaching Hospital, NigeriaEby the said Dr. I. Yusuf. A copy of the post-mortem report prepared bythe said doctor in Nigeria has, of course, been placed on record wherein,the cause of death is stated as “asphyxia secondary to strangulation”.Though the dead-body of the daughter of appellant was brought to Indiaon 29.01.2010 and Medical Board was constituted for conducting the Fpost-mortem but then, the Board found that no definite opinion could begiven regarding the time and cause of death. The investigating agency,for the reasons best known to it, did not cite the said doctor, who conductedthe first post-mortem in Nigeria as a witness. It is also not the case onbehalf of the accused that the copy of the post-mortem report dated16.01.2010 prepared in Nigeria was not disputed and/or he would not beGseeking to cross-examine the said doctor, if he is examined as a witnessin this matter. In the given set of facts and circumstances, evident it isthat the testimony of the said doctor who conducted the first post-mortemin Nigeria is germane to the questions involved in this matter; and for a H

just decision of the case with adequate opportunity to both the parties toput forward their case, the application under Section 311 CrPC ought tohave been allowed.

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11. The peculiar facts and circumstances of the case have eitherbeen ignored or have been cursorily dealt by the Trial Court with theobservations that the effect of non-availability of the original post-mortemreport would be considered at the time of the final disposal of the matter.In fact, the principal reason weighing with the Trial Court in decliningthe prayer for examination of the said witness had been that the casewas pending since the year 2010. The High Court, on the other hand,chose not to exercise its powers under Section 482 CrPC, with the onlyobservation that the discretion so exercised by the Trial Court was not tobe interfered with.

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12. Though it is expected that the trial of a sessions case shouldproceed with reasonable expedition and pendency of such a matter forabout 8-9 years is not desirable but then, the length/duration of a casecannot displace the basic requirement of ensuring the just decision aftertaking all the necessary and material evidence on record. In other words,the age of a case, by itself, cannot be decisive of the matter when aprayer is made for examination of a material witness.

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13. In the given set of facts and circumstances, where the witnessDr. I. Yusuf is residing in Nigeria, for the purpose of recording of hisstatement, the Trial Court could have unquestionably taken recourse tothe provisions of Sections 284 and 285 CrPC so as to avoid the delay inthe matter and inconvenience to the parties and the witness. Sections284 and 285 CrPC read as under:- E

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Section 284. When attendance of witness may be dispensedwith and commission issued. -

(1) Whenever, in the course of any inquiry, trial or otherproceeding under this Code, it appears to a Court ofMagistrate that the examination of a witness is necessaryfor the ends of justice, and that the attendance of suchGwitness cannot be procured without an amount of delay,expense or inconvenience which, under thecircumstances of the case, would be unreasonable, the A

Court or Magistrate may dispense with such attendanceand may issue a commission for the examination of thewitness in accordance with the provisions of thisChapter; Provided that where the examination of the President orthe Vice-President of India or the Governor of a Stateor the Administrator of a Union territory as a witness isnecessary for the ends of justice, a commission shall beissued for the examination of such a witness.

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(2) The Court may, when issuing a commission for theCexamination of a witness for the prosecution direct thatsuch amount as the Court considers reasonable to meetthe expenses of the accused, including the pleader’s fees,be paid by the prosecution.

Section 285. Commission to whom to be issued.- D

(1) If the witness is within the territories to which this Codeextends, the commission shall be directed to the ChiefMetropolitan Magistrate or Chief Judicial Magistrate, asthe case may be, within whose local jurisdiction the witnessis to be found.

E(2) If the witness is in India, but in a State or an area towhich this Code does not extend, the commission shall bedirected to such Court or officer as the CentralGovernment may, by notification specify in this behalf.

(3) If the witness is in a country or place outside India andFarrangements have been made by the CentralGovernment with the Government of such country or placefor taking the evidence of witnesses in relation to criminalmatters, the commission shall be issued in such form,directed to such Court or officer, and sent to such authorityfor transmission as the Central Government may, byGnotification prescribe in this behalf 13.1. On the question of inconvenience likely to be caused in theevent of summoning of the said witness from Nigeria, noticeable it isthat the appellant made a prayer that the doctor concerned being not H

available in the country, the order may be passed for taking his evidenceby issuing commission under Sections 284 and 285 CrPC. The appellantstated in the application, inter alia, as under:- “That however witness is residing in foreign and post-mortemwas conducted also there, hence witness should be summonedthrough High Commission of Nigeria or order may be passedof taking evidence record on commission after issuingcommission U/s 284, 285 in CrPC through video conferencingin case of not coming from foreign.”

13.2 The aforesaid relevant submissions of the appellant havealso been ignored by the Trial Court as also by the High Court. For thepurpose of dealing with such a prayer of the appellant the Trial Courtcould have, rather ought to have, taken guidance from the decisionsof this Court including that in State of Maharashtra v. Dr. Praful B.Desai : (2003) 4 SCC 601 where this Court approved of the processof recording the evidence of a witness in the criminal trial through video-conferencing when the witness was found residing/situate in the UnitedStates of America but whose evidence was essential for the case set upby the prosecution. This Court observed, inter alia, as under:-

“20. Recording the evidence by video-conferencing alsosatisfies the object of providing, in Section 273, that evidencebe recorded in the presence of the Accused. The Accused andhis pleader can see the witness as clearly as if the witnesswas actually sitting before them. In fact the Accused may beable to see the witness better than he may have been able to ifhe was sitting in the dock in a crowded Court room. They canobserve his or her demeanour. In fact the facility to play backwould enable better observation of demeanour. They can hearand rehear the deposition of the witness. The Accused wouldbe able to instruct his pleader immediately and thus cross-examination of the witness is as effective if not better. Thefacility of play back would give an added advantage whilstcross-examining the witness. The witness can be confrontedwith documents or other material or statement in the samemanner as if he/she was in Court. All these objects would befully met when evidence is recorded by video-conferencing.Thus no prejudice, of whatsoever nature, is caused to the A

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AAccused. Of course, as set out hereinafter, evidence by video-conferencing has to be on some conditions.”

Thereafter, with reference to Sections 284 and 285 CrPC, thisCourt further observed that,- B“22. ….. Thus in cases where the witness is necessary for theends of justice and the attendance of such witness cannot beprocured without an amount of delay, expense orinconvenience which, under the circumstances of the casewould be unreasonable, the Court may dispense with suchattendance and issue a commission for examination of theCwitness. …… Normally a commission would involve recordingevidence at the place where the witness is. Howeveradvancement in science and technology has now made itpossible to record such evidence by way of video-conferencingin the town/city where the Court is. Thus in case where theDattendance of a witness cannot be procured without an amountof delay, expense or inconvenience the Court could considerissuing a commission to record the evidence by way of video-conferencing.”

13.3. In the present case too, where the witness Dr. I.Yusuf isresiding in Nigeria, in order to avoid inconvenience to the witness as alsoEto the parties, issuing of commission and recording his evidence throughvideo-conferencing appears to be a viable alternative; and the TrialCourt need to take all the requisite steps so as to ensure that his evidencecomes on record with least inconvenience and/or burden to the partiesand the witness.

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14. In the given set of facts and circumstances, we are clearly ofthe view that the Trial Court disposed of the application under Section311 CrPC on entirely irrelevant considerations and the High Court alsofailed to exercise its jurisdiction under Section 482 CrPC while overlookingand ignoring the material and relevant aspects of the case. In our view,Gthe said application under Section 311 CrPC deserves to be allowed.

15. It goes without saying that we have not made any commentson the merits of the case; and the Trial Court would be expected to dealwith the matter in accordance with law after assessment of the evidencebrought on record.

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MANJU DEVI v. STATE OF RAJASTHAN & ANR.[DINESH MAHESHWARI, J.]

16. Accordingly, this appeal is allowed in the manner and to theextent that the impugned orders dated 31.05.2018 and 02.08.2018 areset aside and the application moved in this matter under Section 311CrPC is allowed. The Trial Court shall now take all the necessarymeasures for ensuring the examination of the witness concerned byissuing commission and/or recording his statement through video-conferencing and shall also ensure expeditious proceedings so as toconclude the matter at the earliest.

Nidhi Jain

Appeal allowed.

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