CRL. REV. P/19/2003 of prem Subba Vs State Of Sikkim on 8 December 2003

JUDGMENT

SINGH

The order dated 12th August 2003 passed by thelearned Sessions Judge (S & W); Namchi in Criminal CaseNo.7 of 2003 is the subject matter under challenge in thisrevision petition.

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The facts of the case, in a short compass, leading to the filing of this revision petition are as follows: - The petitioner who is the accused person inconnection with a Criminal Case No.7 of 2003 stoodtrial for offence punishable under Section 307 of theIndian Penal Code before the Court below and therelated charge has been framed against the accused-petitioner for the offence punishable under Section 307.As the accused-petitioner did not plead guilty, andclaimed for trial; the trial Court started examination ofas many as prosecution witnesses and, later on, thetrial Court below fixed date for examination of theInvestigating Officer (I.0.) and, in the mean time, theprosecution filed an apprication on 12th August 2003 forexamination of a witness, namely, Shri Pem TsheringBhutia, son of Shri Chadar Bhutia, resident ofSiribadam, West Sikkim by stating that the said PemTshering Bhutia is a material witness who could not beexamined during the investigation of the case and, assuch, an opportunity be given to the prosecution toexamine the said witness for proper adjudication of thecase. The learned trial Court allowed the petition thusaffording an opportunity to the prosecution to producethe said witness and the I.0. of the case on the nextdate for examination vide impugned order dated 12thAugust 2003. Being dissatisfied with the impugnedorder dated 12th August 2003, the accused-petitionerpreferred/riled this revision petition. The accused-petitioner questioned the validity of the impugned orderdated 12th August 2003 with the following grounds as .EIE|i.\

highlighted in the revision petition which is quotedbelow: - " a) For that the impugned order is bad inlaw as well as facts of the case.law as well as facts of the case.

b) For that the impugned order is againstthe spirit and letter of Section 311 ofthe Code of Criminal Procedure, 1973.the spirit and letter of Section 311 ofthe Code of Criminal Procedure, 1973.

c) For that it is settled law that the objectof the provisions of Section 311 as awhole is to do justice not only from thepoint of view of the accused and theprosecution, but also from the point ofview of the orderly society.of the provisions of Section 311 as awhole is to do justice not only from thepoint of view of the accused and theprosecution, but also from the point ofview of the orderly society.

d) For that it is settled law that underSection 311 Courts examine evidenceneither to help the prosecution nor tohelp the accused and further it is dopeneither to fill up any gaps in theprosecution evidence nor to give anyunfair advantage against the accused.Section 311 Courts examine evidenceneither to help the prosecution nor tohelp the accused and further it is dopeneither to fill up any gaps in theprosecution evidence nor to give anyunfair advantage against the accused.e) F`or it is settled law that thediscretionary power is to be exercisedjudicially for the ends of justice andnot to fulfill the grievances of eitherprosecution or the accused.discretionary power is to be exercisedjudicially for the ends of justice andnot to fulfill the grievances of eitherprosecution or the accused.

I) For that the impugned order does notindicate whether discretion is exercisedor mandate of Section 31 1 is followed.indicate whether discretion is exercisedor mandate of Section 31 1 is followed.

g) For that the Ld. Trial Judge failed toappreciate the facts of the case, whichnegate the exercise of discretionarypower in the present case.appreciate the facts of the case, whichnegate the exercise of discretionarypower in the present case.

h) For that there was no application of theI.0. of the case for examination of theso-called witness who happens to befrom same village of the defactocomplainant.I.0. of the case for examination of theso-called witness who happens to befrom same village of the defactocomplainant.

i) For that the Ld. Trial Judge ought tohave considered the evidence of thedefacto complainant given in the Courtas P.W. 10 before allowing the belatedapplication of the Ld. Public Prosecutorbased on the application of the defactocomplainant.have considered the evidence of thedefacto complainant given in the Courtas P.W. 10 before allowing the belatedapplication of the Ld. Public Prosecutorbased on the application of the defactocomplainant.

j) For that Ld. Trial judge failed toappreciate that one of the groundsraised by the defense to oppose theapplication was that there is everylikelihood of procurement of got-upwitness.appreciate that one of the groundsraised by the defense to oppose theapplication was that there is everylikelihood of procurement of got-upwitness.

k) For that the facts and circumstances ofthe case the evidence of the defactocomplainant crystal clearly prove thatthe so-called witness is a got upwitness and was not present at thealleged place of occurrence.the case the evidence of the defactocomplainant crystal clearly prove thatthe so-called witness is a got upwitness and was not present at thealleged place of occurrence.

1) For that the grounds of the objectiongiven by the Ld. Defense counsel oughtto have been considered in the light ofthe facts and circumstances of theCase.given by the Ld. Defense counsel oughtto have been considered in the light ofthe facts and circumstances of theCase.

in) For that other grounds if necessaryshall be raised with the priorpermission of the Honble Court."shall be raised with the priorpermission of the Honble Court."

Supporting the case of the accused-petitioner, Mr.

K. T. Bhutia, learned counsel contended that the prosecutionfiled the petition under Section 311 of the Cr.P.C. at a belatedstage and apart from that the said witness Shri Pem TsheringBhutia was not examined by the Police under Section 161 ofthe Cr.P.C. at the time of investigation of the case as the saidwitnes`s is not a material witness. Mr. K. T. Bhutia, learned +.isJ7

counsel further argued that the prosecution sought forexamination of the said witness, nalnely, Shri Pen TsheringBhutia so as to enable the prosecution to fill up lacunas/i gaps found in the prosecution evidence and that the saidwitness is a got-up witness who was not present at all at therelevant time and place of occurrence. The learned counselhas also relied upon a decision of the Apex Court rendered inMonhanlal Shamji Sowi i]. Uivion Of India 8b ant. reportedin AIR 1991 sc 1346.

At the hearing, Mr. N. 8. Khatiwada, learnedPublic Prosecutor contended that there is no infirmity andillegality in the impugned order as the learned trial Court hadrightly passed the same. According to Mr. Khatiwada,learned Public Prosecutor, Section 3.11 of the Cr.P.C. giveswide and ample power to the Court to call, summon orexamine any material witness for just decision of the case asthe Court are meant to do justice and not for only disposingthe case and to declare who win the case. It is also argued bythe learned Public Prosecutor that the present revisionpetition is devoid of merit and accordingly, it should bequashed. Supporting the case of the prosecution, the learnedPublic Prosecutor also relied upon a decision of Rajasthan `Tl----`

High Court rendered in Sc[mc[ Ram I;. State a/Rajasthan &'cznr. reported in 2002 CRI.I.U. 3]34.

For better appreciation in the matter, theprovision of Section 311 of the Cr.P.C. is relevant andaccordingly, it is quoted below: - " 311. Power to summon materialwitness, or examine person present. - Anycourt rna.y, at any stage of any inquiry, trialor other proceeding under this Code,summon any person as a witness, orexamine any person in attendance, thoughnot summoned as a witness, or recall andre-examine any person already examined;and the court shall summon and examine orrecall and re-examine any such person if hisevidence appears to it to be essential to thejust decision of the case. "

According to me, the first part of Section 311 of the Cr.P.C. isdiscretionary which enables a Court at any stage to summonany person as a witness; or to examine any person inattendance or to recall and re-examine any witness alreadyexamined and, that the second part of this section ismandatory which further enables the Court to take any of theabove steps if the new evidence of the witness appears to beessential to the just decision of the case. In other words, theobject of this section is to arrive at the truth irrespective ofthe fact that the prosecution or the defense has failed to `ap\r+t`

I,

produce some evidence which is necessary for a just decisionof the case.

In the instant case, the prosecution filed therelated application under Section 311 of the Cr.P.C. aftergiving due weightage and reliance on an application filed bythe victim Shri Parsuram Sharma before the learned trialCourt. It may be mentioned that in the said application, thesaid Shri Parsuram Sharma specifically stated that on hisenquiry. it has been learnt that the said witness was alsopresent at Jorethang when he was struck/assaulted and he(witness) knows all about the occurrence/incident.

I have perused all the available materials onrecord including the petition under Section 311 of the Cr.P.C.filed by the prosecution as well as the application filed by thevictim before the Court below. According to me, if the Courtfinds that the new evidence is essential to just and properdecision of the case, it is obligatory to admit it at any stage ofthe proceedings; in other words, even after the close of theprosecution and defence and the Court is to. afford theopportunity to the prosecution or the defence to produceevidence which is necessary for ajust decision of the case. In +ts<cyzTz I

my considered view, the learned Court below had exaninedthe matter pros and cons and was of the view that the saidapplication was filed by the prosecution for just decision ofthe case and as such, no prejudice shall be caused to theaccused-petitioner as the accused-petitioner shall getopportunity to cross-examine the said witness for his defence.So far, the case laws cited by Mr. K. T. Bhutia, learnedcounsct, naneky, Monhanun Shamji Sowi v. Urrion Of Inczic./sttpra/ do not support the case of the defence at this stage.Instead, it supports the case of the prosecution inasmuch asin that ciise, Monhandal Shourtyi Sowi v. Union Of India/sttpra/, the Apex Court afrirmed the related judgment andorders of the Gujarat High Court, whereby the High Court setaside the related judgment and orders of the Sessions Judgeconfirming the orders of the learned LJudicial Magistrate, FirstClass who rejected the application under Section 540 of theCr.P.C. (old) (now Section 311 of the new Code). In that case,the Apex Court held thus - <c 10.

Conclusion

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It is a well accepted and settledprinciple that a Court must discharge itsstatutory functions - whether discretionaryor obligatory - according to law in dispensingjustice because it is the duty of a Court notonly to do justice but also to ensure thatjustice is being done. In order to enable theCourt to find out the truth and render a just `.`.`t\l.?y decision, the salutary provisions of Section540 of the Code (Section 311 of the newCode) are enacted whereunder any Court byexercising its discretionary authority at anystage of enquiry, trial or other proceedingcan summon any person as a witness orexanine any person in attendance thoughnot summoned as a witness or recall or re-examine any person in attendance thoughnot summoned as a witness or recall and re-examine any person already examined whoare expected to be able to throw light uponthe matter in dispute; because if judgmentshappen to be rendered on inchoate,inconclusive and speculative presentation offacts, the ends of justice would be defeated."

In my considered view, the prosecution did its bestby filing the said petition under Section 311 of the Cr.P.C. inorder to prove the fact of the case, in other words, to establishits case by producing the said witness and that for a justdecision of the case, the said application under Section 311 ofthe Cr.P.C. was allowed by the learned trial Court. However,it is made clear that the defence shall be given theopportunity to cross-examine the said witness.

For the reasons, discussions and observationsmade above, I am of the view that the accused-petitionercould not make out a case to justify interference with theimpugned Order dated 12th August 2003 passed by the _---:---`

learned Sessions |Judge (S & W), Namchi in Criminal CaseNo.7 of 2003.

10. In the result, this revision petition is devoid ofmerit and accordingly, it is dismissed thus affirming theimpugned Order passed by the learned Court below inCriminal Case No.7 of 2003. The Registry is directed totransmit the related case records to the learned Court belowimmediately. Earlier 5k€; ad interim order dated 23rdSeptember 2003 passed in the present case stands vacated.No order as to costs.

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( N. S. Singh )Judge08-12-ZOOS