Crl.Petn./17/2024 of THE STATE OF MEGHALAYA Vs MATHI LYNGKHOI (ACCUSED) on 2 September 2024

1. The brief fact of the case is that an FIR dated 23-10-2011 waslodged by Smti Prialdoris Mawlein before the Officer-in-ChargeNongstoin Police Station alleging that on 23-10-2011, at about 1.30AM, the respondent herein had brutally murdered one Shri. KomliMawlein Shianglang at a coal quarry by using a firewood while thevictim was asleep, and after committing the crime, the respondent fledaway from the spot. On the basis of the said FIR, the Nongstoin PSCase No. 145 (10) 2011 under Section 302 IPC was registered by thepolice. The case was later transferred to Ranikor PS and registered asRanikor PS Case No. 47 (10) 2011 under Section 302 IPC as the placeof occurrence was under jurisdiction of the Ranikor Police Station.After conclusion of the investigation, a charge-sheet was filed in thematter against the respondent and by order dated 21-01-2016, thelearned Trial Court framed charge under Section 302 IPC against him.During the course of the trial, the prosecution examined five witnessesand they were discharged after examination-in-chief and cross-examination. After completion of recording of statement of therespondent (accused) under Section 313 Cr.P.C, the prosecution filedan application under Section 311 Cr.P.C on 17-04-2023 before theTrial Court for calling 5(five) additional witnesses as their evidencewould be vital for the just decision of the case. A show-cause replydated 16-05-2023 was filed on behalf of the respondent against the said application. The learned Trial Court, after hearing the parties,vide impugned order dated 25-07-2023 rejected the application of theprosecution on the ground of delay. Being aggrieved, the State haspreferred this criminal petition before this Court.

2. Mr. N. D. Chullai, learned AAG appearing for the petitioner,submits that the rejection of the application for calling of additionalwitnesses by the Trial Court on the ground of delay is against thesettled propositions of law. He submits that the learned Trail Courthas failed to realize the gravity of the offence involved in the matterand also the relevance and importance of the witnesses sought to becalled as additional witnesses by the prosecution. He submits that theadditional witnesses named in the application under Section 311Cr.P.C. include eyewitnesses, seizure witnesses and the Magistratewho recorded the confessional statement of the accused and, hence,are very vital witnesses for unearthing the truth in the matter. Hesubmits that the learned Trial Court without realizing the importanceof the testimony of such witnesses, has passed the impugned ordermechanically only on the ground of delay. The learned AAG contendsthat the prolonged pendency or the age of a case cannot be soledecisive of the matter when the offence involved is grave in natureand a prayer is made for examination of material witnesses. Hesubmits that though delay is not desirable in a criminal trial, theduration of a case cannot displace the basic requirement of ensuringthe just decision after taking all the necessary and material evidenceon record. He submits that the learned Trial Court while passing theimpugned order did not appreciate the importance of examination of

the additional witnesses named in the application and rejected thesame without applying its judicious mind. In support of his argument,the learned AAG has places reliance on the decision of the Apex Courtreported in (2019) 6 SCC 203, Manju Devi Versus State of Rajasthanand Another and prays for quashing of the impugned order and alsofor allowing the prosecution to examine the additional witnessesnamed in the application filed before the Trial Court under Section311 Cr.P.C.

3. Mr. R. Kharkrang, learned Counsel appearing for therespondent, on the other hand, supported the impugned order andsubmitted that there is no illegality and infirmity in the order passedby the Trial Court. He submits that the application for callingadditional witnesses by the prosecution was filed after the closure ofthe prosecution witnesses and recording of statement of the accusedunder Section 313 Cr.P.C. and, hence, the Trial Court was right inrejecting the same on the ground of delay. He submits that the trial ofthe case has been pending for more than 8 (eight) years and theprosecution has not given any valid reason for filing the applicationunder Section 311 Cr.P.C. at a belated stage when the matter waspending for final hearing. According to him, the right to speedy trialis an inalienable right of the accused under Article 21 of theConstitution of India and the said right cannot be taken away withoutany valid or justified reason. He submits that the Trial Court whilerejecting the application of the prosecution under Section 311 Cr.P.C.has recorded valid reason in the light of the established norms ofcriminal jurisprudence. The learned Counsel submits that where the prosecution evidence is closed and the reasons for non-examination ofthe witnesses earlier are not satisfactory, the summoning of theadditional witnesses at belated stage is highly prejudicial to theaccused and the decision of the Trial Court, as such, does not requireany interference by this Court. In support of his argument, the learnedCounsel has placed reliance on the decisions of the Apex Courtreported in (2019) 14 SCC 328, Swapan Kumar Chatterjee VersusCentral Bureau of Investigation and (2009) 3 SCC 355, Vakil PrasadSingh Versus State of Bihar.

4. Before coming to the controversy involved in the present case,it would be appropriate for this Court to take note of the proposition oflaw laid down in the decisions relied on by the learned Counsels forthe rival parties. The Apex Court in Swapan Kumar Chatterjee(supra) at para 12 held: - “12.Where the prosecution evidence has been closedlong back and the reasons for non-examination of thewitness earlier are not satisfactory, the summoning of thewitness at belated stage would cause great prejudice tothe accused and should not be allowed. Similarly, thecourt should not encourage the filing of successiveapplications for recall of a witness under this provision.”

The aforesaid observation was made on the background of the factthat repeated adjournments were granted to present expert witnessbefore the Court from 2004 to 2017, and yet the witness was notproduced before the Court. The fact involved therein was that thepublic prosecutor had filed a petition praying for examination ofhandwriting expert, which was allowed and a date was fixed on 24-03-

2004 and then to 26-03-2004 for his examination. However, thewitness failed to appear before the Court due to which the prosecutorfurther sought time for fixing of a schedule till next day for hisexamination. The request of the prosecutor was accepted by theMagistrate with a direction that the schedule is fixed on and from 10-05-2004 to 12-05-2004. The said witness yet again failed to turn up.The prosecutor did not pray for reissuing of summon and bailablewarrant, but a separate petition was filed by the prosecutor forresummoning the witness. Such prayer was considered by theMagistrate as a last chance. From then onwards, whenever a date wasfixed for examining the handwriting expert, the witness failed to turnup. This practice had continued for a period of 13 years starting fromthe year 2004. In those circumstances, the Apex Court held that theCourt erred in repeatedly granting last opportunity to produce thewitness and in the light of the repeated failure to produce the witnessin Court, application for summoning the said witness was rejected bythe Supreme Court.

Thus, the factual background of Swapan Kumar Chatterjee(supra) was totally different from the present case. In the said case, itis nowhere observed by the Apex Court that the question of delayshould be the sole criteria for deciding an application under Section311 Cr.P.C.

5. In the case of Vakil Prasad Singh (supra), the Apex Court whilerecognizing the right to speedy trial and public trial a constitutionalguarantee, at para 24 observed as follows: - “24. It is, therefore, well settled that the right to speedytrial in all criminal persecutions (sic prosecutions) is aninalienable right under Article 21 of the Constitution.This right is applicable not only to the actualproceedings in Court but also includes within its sweepthe proceeding police investigations as well. The right tospeedy trial extends equally to all criminal prosecutionsand is not confined to any particular category of cases.In every case, where the right to speedy trial is alleged tohave been infringed, the court has to perform thebalancing act upon taking into consideration all theattendant circumstances, enumerated above, anddetermine in each case whether the right to speedy trialhas been denied in a given case.”

Facts

In the above case, the Apex Court had also reiterated the propositionsof law laid down in (1992) 1 SCC 285 (A.R. Antulay case), some ofwhich were reflected at para 20 of the judgment of thecase. Thepropositions at sub paras (iv),(v) & (vi) laid down that whiledetermining whether undue delay has occurred (resulting in violationof right to speedy trial) one must have regard to all the attendantcircumstances, including nature of offence, number of accused andwitnesses, the workload of the court concerned, prevailing localconditions and so on – what is called, the systematic delays. It wasfurther observed that each and every delay does not necessarilyprejudice the accused. Some delays may indeed work to hisadvantage. However, inordinate long delay may be taken aspresumptive proof of prejudice. In this context, the fact ofincarceration of the accused will also be a relevant fact. Theprosecution should not be allowed to become persecution. But whendoes the prosecution become persecution, again depends upon the facts of a given case. It was held that ultimately, the court has tobalance and weigh several relevant factors – ‘balancing test’ or‘balancing process’ – and determine in each case whether the right tospeedy trial has been denied.

It emerges from the above that whenever a plea of infringementof right to speedy trial is alleged or an objection is raised on theground of delay, the court has to perform the balancing act by takinginto consideration all the attendant circumstances including the natureof offence.

6. In Manju Devi (supra), the Apex Court while elaboratingpowers under Section 311 Cr.PC., at paras 10 and 13 observed: - “10. It needs hardly any emphasis that the discretionary powerslike those under Section 311 CrPC are essentially intended toensure that every necessary and appropriate measure is takenby the Court to keep the record straight and to clear anyambiguity insofar as the evidence is concerned as also toensure that no prejudice is caused to anyone. The principlesunderlying Section 311 CrPC and amplitude of the powers ofthe court thereunder have been explained by this Court inseveral decisions. In Natasha Singh v. CBI³, though theapplication for examination of witnesses was filed by theaccused but, on the principles relating to the exercise of powersunder Section 311, this Court observed, inter alia, as under:(SCC pp. 746 & 748-49, paras 8 &15)

"8. Section 311 CrPC empowers the court to summon amaterial witness, or to examine a person present at "anystage" of "any enquiry", or "trial", or "any otherproceedings" under CrPC, or to summon any person as awitness, or to recall and re-examine any person who hasalready been examined if his evidence appears to it, to beessential to the arrival of a just decision of the case.

Undoubtedly, CrPC has conferred a very widediscretionary power upon the court in this respect, butsuch a discretion is to be exercised judiciously and notarbitrarily. The power of the court in this context is verywide, 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 suchpower even suo motu if no such application has beenfiled by either of the parties. However, the court mustsatisfy itself, that it was in fact essential to examine sucha witness, or to recall him for further examination inorder to arrive at a just decision of 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 properproof of such facts, to arrive at a just decision of thecase. Power must be exercised judiciously and notcapriciously or arbitrarily, as any improper orcapricious exercise of such power may lead toundesirable results. An application under Section 311CrPC must not be allowed only to fill up a lacuna in thecase of the prosecution, or of the defence, or to thedisadvantage of the accused, or to cause seriousprejudice to the defence of the accused, or to give anunfair advantage to the opposite party. Further, theadditional evidence must not be received as a disguisefor retrial, or to change the nature of the case againsteither of the parties. Such a power must be exercised,provided that the evidence that is likely to be tendered bya witness, is germane to the issue involved. Anopportunity of rebuttal however, must be given to theother party. The power conferred under Section 311CrPC must therefore, be invoked by the court only inorder to meet the ends of justice, for strong and validreasons, and the same must be exercised with greatcaution and circumspection. The very use of words suchas "any court", "at any stage", or "or any enquiry, trial or other proceedings", "any person" and "any suchperson" clearly spells out that the provisions of thissection 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 beobtained is essential to the just decision of the case. Thedeterminative factor should therefore be, whether thesummoning/recalling of the said witness is in fact,essential to the just decision of the case.

13. Though it is expected that the trial of a sessions case shouldproceed with reasonable expedition and pendency of such amatter for about 8-9 years is not desirable but then, thelength/duration of a case cannot displace the basic requirementof ensuring the just decision after taking all the necessary andmaterial evidence on record. In other words, the age of a case,by itself, cannot be decisive of the matter when a prayer ismade for examination of a material witness.”

Thus, from the above, it is apparent that this scope and object of theprovisions of Section 311 Cr.PC is for the purpose of enabling theCourt to determine the truth and to render a just decision afterdiscovering all relevant facts and obtaining proper proof of such factsto arrive at a just decision of the case. A duty is cast on the court toensure that the material evidence comes on record so as to arrive atjust and proper conclusion. The age of the case, by itself cannot bedecisive of the matter when a prayer is made for examination ofmaterial witness.

7. In the present case, the charge against the respondent wasframed on 21-01-2016 and the case has been pending for more than 8years. The prosecution closed its evidence on 07-12-2022 and thestatement of the respondent under Section 313 Cr.P.C. was recorded on 06-03-2023. The application under Section 311 Cr.P.C for callingadditional witnesses was filed by the prosecution on 17-04-2023. Thereason for non-examination of the witnesses earlier was stated to bedue to bona fide mistake and oversight, which is definitely a mistakeon the part of the prosecution. There was a gap of about 4(four)months between the date of closure of prosecution evidence and dateof filing of the application under Section 311 Cr.P.C. It is not the casehere that the prosecution had delayed the matter intentionally and didnot file the application under Section 311 Cr.P.C. immediately afterrealizing its mistake. In such a situation, delay in preferring theapplication for summoning additional witnesses cannot be termed asinordinate long delay giving rise to presumptive proof of prejudice tothe respondent. There is no dispute that the statements of all thewitnesses named in the application under Section 311 Cr.P.C. wererecorded by the police at the stage of the investigation under Section161 Cr.P.C. The indisputable facts and situation of the case remainsthat the respondent is a named accused in the FIR and he has beencharged and tried for an offence under Section 302 IPC on theaccusation of brutally murdering one Shri. Komli Mawlein Shinglang,which, undoubtedly is a grave offence.

8. A perusal of the impugned order does not show that the TrialCourt had taken into consideration the importance of the evidence ofthe witnesses named by the prosecution in its application filed underSection 311 Cr.P.C. There is also nothing to indicate that the TrialCourt had shown any interest to determine whether the additionalwitnesses named by the prosecution are material witnesses or not, and what influence their testimony might have in the outcome of the trial.A perusal of the statements of all the 5(five) named additionalwitnesses under Section 161 Cr.P.C., annexed with the presentpetition, reveal that they have played vital role in the investigation ofthe matter and their evidence are essential for determination of truthand for just decision of the case. No attempt was made by the TrialCourt to balance the situation by taking into consideration the gravityof the offence involved and the probative value of the evidence of theadditional witnesses which are likely to be adduced by them. Hence,it can be concluded that the Trial Court, while passing the impugnedorder, did not appreciate the matter in the light of the law laid down bythe Apex Court. The impugned order, as such, cannot be sustained inlaw.

9. For the reasons and discussions above, this criminal petitionsucceeds. The impugned order dated 25-07-2023 passed in SessionsCase No. 30 of 2020 (G.R Case No. 187 of 2011) by the learnedSessions Judge, South West Khasi Hills District, Mawkyrwat is setaside and quashed. Resultantly, the application filed by theprosecution before the Trial Court for summoning the additionalwitnesses stands allowed. The Trial Court is directed to issuesummons to the witnesses named in the application numbered asPetition No.108 of 2023 filed by the prosecution by fixing a date ordifferent dates for recording their evidence.

10. This criminal petition stands allowed.

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Meghalaya02.09.2024

“Biswarup-PS”

JUDGE