SUPREME COURT OF INDIA
U.T. of Dadra and Haveli and Another
Vs
Fatehsinh Mohansinh Chauhan
Appeal (Crl.) 834 of 2006 (Arising Out of S.L.P.(Crl.) No.5459 of 2004)
(G. P. Mathur and A. K. Mathur, JJ)
14.08.2006
G. P. MATHUR, J.
1. Leave granted.
2. This appeal, by special leave, has been preferred against the judgment and
order dated 8.10.2004 of Bombay High Court by which the revision preferred by
the respondent was allowed and the order dated 12.8.2004 passed by the learned
Sessions Judge, Dadra & Nagar Haveli, Silvassa, summoning Shri S.P. Marwah,
the then Collector, Dadra & Nagar Haveli, Silvassa under Section 311 Cr.
P.C. was set aside.
3. One Damabhai Lasyabhai Choudhary lodged an FIR at 8.30 p.m. on 29.4.1996 at
P.S. Khanvel alleging that on the instigation of accused A-7, A-8 and A-9
accused A-1 to A-6 had assaulted the deceased Bapjibhai Bhoya and caused
injuries to some others. The respondent herein Fatehsinh Mohansinh Chauhan is
A-7 and he was assigned the role of instigation 'Maro Maro, Pakdo Pakdo'. After
usual investigation charge sheet was submitted against all the nine accused and
the case was committed to the Court of Sessions. In his statement under Section
313 Cr.P.C. which was recorded after close of the prosecution evidence, the
respondent took a plea of alibi and submitted that he is a prominent member of
a political party and at the time of the incident, he was present in the
chamber of Shri S.P. Marwah, Collector, Dadra & Nagar Haveli, Silvassa, as
a meeting had been called there. The respondent examined two witnesses, viz.,
DW.1 O.P. Misra, Deputy Collector and DW.2 R.N. Parmar, Executive and Sector
Magistrate, Dadra, in support of his plea of alibi that he was present in the
chamber of Shri S.P. Marwah. The Special Public Prosecutor, thereafter, moved
an application, purporting to be one under Section 311 Cr.P.C., praying that
Shri S.P. Marwah, the then Collector of Dadra & Nagar Haveli, Silvassa and
currently posted as Director, Jal Nigam Board, New Delhi, may be summoned and
examined as a witness. The application was opposed by respondent no.7 by filing
a written reply on the ground, inter alia, that he had raised a plea of alibi
at the very beginning, which was very well known to the investigating agency, but
no investigation in that direction had been made and the defence taken by him
in his statement under Section 313 Cr.P.C. was not a sudden or unexpected one.
It was also submitted that the prosecution was not entitled to fill in a lacuna
by moving an application under Section 311 Cr.P.C for the purpose of summoning
a witness. The learned Sessions Judge, after referring to the authorities cited
by the counsel for the parties, allowed the application moved by the Special
Public Prosecutor by the order dated 12.8.2004 and the relevant part of the
order which has a bearing on controversy in dispute is being reproduced below
:-
"The gist of all these authorities is that the best available evidence
should be brought before the Court to prove point in issue. However, it is left
either to the prosecution or to the defence to establish its respective case by
adducing the best available evidence. Under Section 311 of the Code of Criminal
Procedure 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 the Court to find out the truth
and render a just decision, provisions of Section 311 of the Code can be
invoked by exercising judicial discretion at any stage of enquiry, trial or
other proceeding.
This Court is conscious of the fact that matter is very old and is lingering on
some or the other ground since long. But this alone will not be sufficient to
reject an opportunity to the prosecution particularly when the defence has kept
behind the best available evidence of the then Collector who had convened the
meeting according to accused No.7 in which he was present. Moreover, it will
not cause any prejudice to accused no.7 as alibi is his own defence. He will
have an opportunity to cross-examine the witness. Thus in order to find out the
truth, evidence of the then Collector is necessary. In the interest of just and
fair decision application is to be allowed."
4. Feeling aggrieved, the respondent filed an application under Section
397/401/482 Cr.P.C. and Article 227 of the Constitution of India before the
Bombay High Court for setting aside the order dated 12.8.2004 passed by the
learned Sessions Judge. The High Court held that the respondent had taken a
plea of alibi as far back as in the year 1996 when he had moved an application
for anticipatory bail and also when he opposed the application moved by the
prosecution for giving him on police remand. In the order dated 6.5.1996 passed
by the learned Sessions Judge granting bail to the respondent, it was observed
that the investigating agency had not considered it appropriate to place the
relevant material or to rebut the plea of alibi taken by the respondent. The
High Court accordingly held that the grant of the application moved by the
Public Prosecutor for summoning the Collector, Dadra & Nagar Haveli,
Silvassa, under Section 311 Cr.P.C. would inevitably result in permitting the
prosecution to fill in the lacuna in the prosecution case. It has been further
observed that the respondent had already examined two witnesses and if the
trial Court was of the opinion that the said evidence was insufficient, a
logical conclusion could be drawn for accepting or not accepting the defence
version and merely because the defence has chosen not to examine one more
witness, who should also have been examined by the defence, that by itself may
not be sufficient reason for invoking the powers under Section 311 Cr.P.C. The
application filed by the respondent was accordingly allowed by the order under
challenge and the order dated 12.8.2004 of the learned Sessions Judge was set
aside.
5. Shri Ranjit Kumar, learned senior counsel for the appellant has submitted
that Section 311 Cr.P.C. confers a very wide power on the Court to summon any
person as a witness or to recall and re-examine any person already examined at
any stage of any inquiry, trial or other proceeding and further the Section
casts a duty upon the Court to summon and examine or recall and re-examine any
such person, if his evidence appears to be essential to the just decision of
the case. Learned counsel has further submitted that the specific defence of
the respondent is that at the relevant time he was present in the chamber of
Shri S.P. Marwah, the then Collector, Dadra & Nagar Haveli, Silvassa, where
a meeting had been called and, therefore, Shri S.P. Marwah was the best person
to give evidence regarding the said fact. The learned Sessions Judge had also
recorded a finding that in order to find out the truth, the evidence of the
then Collector Shri S.P. Marwah is necessary. In such circumstances, the order
passed by the learned Sessions Judge was eminently just and proper and the High
Court has erred in interfering with the said order and setting aside the same.
6. Shri Arun Jaitley, learned senior counsel for the respondent, has on the
other hand submitted that the incident took place on 29.4.1996 and in the
application for anticipatory bail moved shortly thereafter, a specific plea was
raised by the respondent that at the alleged time of the incident, he was present
in the meeting which had been convened by the Collector, Dadra & Nagar
Haveli, Silvassa. The respondent was arrested on 2.5.1996 and he was remanded
to police custody for three days and after expiry of the said period, an
application was moved for extending the police custody, which was opposed by
the respondent on the ground that he was not present at the scene of commission
of crime and was actually present in the meeting in the chamber of the
Collector, Dadra & Nagar Haveli. The learned Chief Judicial Magistrate
rejected the prayer of the investigating agency for extending the police remand
by passing a detailed order on 6.5.1996, wherein it was observed that "the
investigating officer should have thwarted out the alibi taken by the accused
at this preliminary stage by recording the statements of concerning
officers" and "it is the inaction or the casual approach of the
police which has disentitled the police to further custody". Shri Jaitley
has also submitted that in the order dated 7.5.1996 passed by the incharge
Sessions Judge granting bail to the respondent, it was specifically observed
that the investigating officer had not even bothered to record the statement of
those high ranking officers to show that the contention of the accused was
palpably false though the accused even prior to his arrest or at the time of
filing the application for anticipatory bail had made a clear assertion about
his being present with those officers at the time of the incident and the
police had not bothered to verify this vital fact by recording the statement of
the concerned officers. Learned counsel has also submitted that the entire
cross-examination of the prosecution witnesses had been directed on said line
and a categorical suggestion had been given to the witnesses that at the time
of alleged incident the respondent was present in the meeting which had been
called by the Collector. It has thus been submitted that the prosecuting agency
having slept over the matter for such a long time it was not entitled to move an
application under Section 311 Cr.P.C. at such a belated stage i.e. on 19.7.2004
to summon the Collector of the Dadra & Nagar Haveli, Silvassa as a witness.
Learned counsel has also submitted that the course adopted by the prosecution
clearly amounts to filling in the lacuna in the prosecution evidence and the
High Court was, therefore, perfectly justified in setting aside the order
passed by the learned Sessions Judge.
7. We have given our anxious consideration to the submissions made by the
learned counsel for the parties. The order passed by the learned Sessions Judge
shows that while moving the application for summoning the Collector of Dadra
& Nagar Haveli, Silvassa under Section 311 Cr.P.C. it was submitted on
behalf of the prosecution that as the meeting had been called in his chamber,
he was the best person to depose about the presence of the respondent, but the
respondent had not chosen to examine him as a witness in his defence and,
therefore, to find out the truth, the evidence of Collector was necessary. This
prayer was opposed on behalf of the respondent principally on the ground that
right from the beginning the plea of the respondent was that at the time of the
incident he was present in the chamber of the Collector where a meeting had
been called but the investigating agency did not make any investigation in that
regard, nor made any attempt to collect the relevant evidence and at such a
belated stage when the entire evidence had been recorded and the trial was
almost over, the prosecution could not be permitted to fill in the lacuna. The
learned Sessions Judge was of the opinion that the accused had kept behind the
best available evidence of the Collector who had convened the meeting where he
claimed to be present and, therefore, in the interest of justice and fair
decision, the application deserved to be allowed.
8. What requires consideration, therefore, is whether the order passed by the
learned Sessions Judge comes within the parameters of Section 311 Cr.P.C.,
which confers power on the Court to summon a material witness or examine a
person present in Court. Section 311 of Code of Criminal
Procedure, 1973 is a verbatim reproduction of Section 540 of Code of
Criminal Procedure, 1898 (for short 'old Code'). Section 311 Cr.P.C. reads as
under: -
"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."
The scope and content of Section 540 of the old Code was considered in several
decisions rendered by the High Courts. A Division Bench of Allahabad High Court
in Ram Jeet & Ors. v. The State 1958 AIR(All) 439 examined the
provisions of the section in considerable detail. In this case after the entire
evidence had been recorded and the arguments had been heard and a date for
pronouncement of judgment had been fixed, the learned Sessions Judge felt that
for the just decision of the case the evidence of certain persons who had not
been examined hitherto was essential. Therefore, on the date originally fixed
for delivery of judgment, he passed an order for summoning and examining some
persons as witness under Section 540 of the old Code. The order passed by the
learned Sessions Judge was challenged in revision before the High Court and one
of the grounds raised was that the examination of fresh evidence was tantamount
to making good lacunae in the prosecution case and was, therefore, not
justified under Section 540 of the old Code. It was held that the Section is
manifestly in two parts; the first part gives purely discretionary authority to
the criminal Court; on the other hand, the second part is mandatory. The
discretion given by the first part is very wide and its very width requires a
corresponding caution on the part of the Court. But the second part does not
allow for any discretion; it binds the Court to examine fresh evidence, and the
only condition prescribed is that this evidence must be essential to the just
decision of the case. Dealing with the argument that examination of fresh
evidence amounted to filling in lacuna in the prosecution case, in para 4 of
the reports, it was held:-
"The misconception instinct in the applicant's argument is made evident
by this analysis of the terms of Section 540 and springs from a disregard of
the second part of the section. This part, as should be plain, casts on the
Court the duty of calling fresh evidence whenever such evidence "appears
to it essential to the just decision of the case". That is to say, the
paramount consideration should be the doing of justice in the case, and
whenever the Court finds that any evidence which is essential for this has not
been examined, the law enjoins it to call and examine it. If this results in
what is sometimes thought to be the "filling of loopholes", that is a
purely subsidiary factor and cannot be taken into account."
The Bench also took note of illustration (g) of Section 114 of the Evidence Act
which says that evidence which could be and is not produced would, if produced,
be unfavourable to the person who withholds it. It was observed that in the
trial of criminal cases the Court should not rely on mere presumptions when the
second part of Section 540 obliges them to summon the witness in question, and
at least criminal Courts unlike civil Courts (the analogous provision of Order
XVI Rule 14 of the Code of Civil Procedure gives the civil Court merely
discretionary authority) are not entitled to level the type of criticism just
referred to.
9. In State of West Bengal v. Tulsidas Mundhra , this Court considered
the amplitude of Section 540 of the old Code. The question which arose for
consideration in this case was whether in proceedings under Section 207A of the
old Code (commitment proceedings before a Magistrate in a case instituted on a
police report and which was exclusively triable by the Court of Sessions) the
provision of Section 540 would be applicable. It was held:-
"Section 540 confers on criminal Courts very wide powers. It is no doubt
for the court to consider whether the power under this section should be
exercised or not. But if it is satisfied that the evidence of any person not
examined or further evidence of any person already examined is essential to the
just decision of the case, it is its duty to take such evidence. The exercise
of the power conferred by S. 540 is conditioned by the requirement that such
exercise would be essential to the just decision of the case."
10. In Jamatraj Kewalji Govani v. State of Maharashtra after analysis of
the provision of Section it was held as under in para 10 of the reports:
"Section 540 is intended to be wide as the repeated use of the word
'any' throughout its length clearly indicates. The section is in two parts. The
first part gives a discretionary power but the latter part is mandatory. The
use of the word 'may' in the first part and of the word 'shall' in the second
firmly establishes this difference. Under the first part, which is permissive,
the court may act in one of three ways : (a) summon any person as a witness,
(b) examine any person present in court although not summoned, and (c) recall
or re-examine a witness already examined. The second part is obligatory and
compels the Court to act in these three ways or any one of them if the just
decision of the case demands it. As the section stands there is no limitation
on the power of the Court arising from the stage to which the trial may have
reached, provided the Court is bona fide of the opinion that for the just
decision of the case, the step must be taken. It is clear that the requirement
of just decision of the case does not limit the action to some thing in the
interest of the accused only. The action may equally benefit the prosecution.
..............."
11. In Mohanlal Shamji Soni v. Union of India & Anr. it was observed
that 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 a Court not only to do justice but also to ensure that
justice is being done. It was further held that the second part of the Section
does not allow for any discretion but it binds and compels the Court to take
any of the aforementioned two steps if the fresh evidence to be obtained is
essential to the just decision of the case. It was emphasized that power is
circumscribed by the principle that underlines Section 311 Cr.P.C., namely,
evidence to be obtained should appear to the court essential to a just decision
of the case by getting at the truth by all lawful means. Further, that the
power must be used judicially and not capriciously or arbitrarily. It was
further observed that evidence should not be received as a disguise for a
retrial or to change the nature of the case against either of the parties and
the discretion of the Court must obviously be dictated by exigency of the
situation and fair play and good sense appear to be the safe guides and that
only the requirement of justice command the examination of any person which
would depend on the facts and circumstances of each case. Rajendra Prasad v.
Narcotic Cell is a decision where the contention that the prosecution
should not be permitted to fill in lacuna was examined having regard to the
peculiar facts where the exercise of power under Section 311 Cr.P.C. second
time was challenged and, therefore, it is necessary to notice the facts of the
case in brief. The accused along with some other persons was facing trial for offences
under Sections 21, 25 and 29 of the NDPS Act. The prosecution and the defence
closed their evidence on 19.9.1997 and the case was posted for further steps
and on 7.3.1998, after few more dates, at the instance of the prosecution two
witnesses who had already been examined were reexamined for the purpose of
proving certain documents for prosecution. After they had been examined and the
evidence had been closed, the case was posted for hearing arguments, which was
heard in piecemeal on different dates. Subsequently on 7.6.1998, the Public
Prosecutor moved an application seeking permission to examine Dalip Singh, S.I.
and two other persons. Though the application was strongly opposed by the
counsel for the accused, the trial Court allowed the same in exercise of its
power under Section 311 Cr.P.C. and summons were issued to the witnesses. The
challenge raised to the order of the learned Sessions Judge by filing a
revision was dismissed by the High Court. In appeal before this Court it was
contended that in the garb of exercise of power under Section 311 Cr.P.C., a
Court cannot allow the prosecution to reexamine prosecution witnesses in order
to fill up lacana in the case specially having regard to the fact that Dalip
Singh witness was never tendered by the prosecution for cross-examination and
PW.4 Suresh Chand Sharma had also not been cross-examined by the State.
Repelling the contention raised on behalf of the accused it was held:
"7. 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, 1872 by saying that the court
could not "fill the lacuna in the prosecution case". A lacuna in the
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 prone. A corollary of any such laches or mistakes during the
conducting of a case cannot be understood as a lacuna which a court cannot fill
up.
8. 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 trial of the case, but an oversight in the
management of the prosecution cannot be treated as irreparable lacuna. No party
in a trial can be foreclosed from correcting errors. If proper evidence was not
adduced or a relevant material was not brought on record due to any
inadvertence, the court should be magnanimous in permitting such mistakes to be
rectified. 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."
Finally, it was held that the proposition that the Court cannot exercise power
of re-summoning any witness if once that power was exercised, cannot be
accepted nor can the power be whittled down merely on the ground that the
prosecution discovered laches only when the defence highlighted them during
arguments. Similar view has been taken in P. Chhaganlal Daga v. M. Sanjay Shaw
2003 (11) SCC 486 where permission granted by the Court to a complainant
to produce additional material after evidence had been closed and case was
posted for judgment was upheld repelling the contention that production of the
document at that belated stage would amount to filling in a lacuna.
12. A conspectus of authorities referred to above would show that the principle
is well settled that 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 of such facts which lead to a just and correct decision of the case, this
being the primary duty of a criminal court. Calling a witness or re-examining a
witness already examined for the purpose of finding out the truth in order to
enable the Court to arrive at a just decision of the case cannot be dubbed as
"filling in a lacuna in 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.
13. The charge-sheet submitted by the police under Section 173 Cr.P.C. after
completion of investigation contains the statements of the witnesses as
recorded under Section 161 Cr.P.C. and in a case exclusively triable by court
of Sessions there is a duty enjoined on a magistrate to furnish to the accused,
free of cost, a copy of the police report including a copy of the FIR,
statement of the witnesses under Section 161 Cr.P.C. and other documents as
mentioned in Section 207 Cr.P.C. It is on the basis of the charge-sheet that
the magistrate takes cognizance of the offence under Section 190(1)(b) Cr.P.C.
Normally, the investigating agency cannot visualize at that stage what will be
the nature of defence which an accused will take in his statement under Section
313 Cr.P.C. as the said stage comes after the entire prosecution evidence has
been recorded. The prosecution is only required to establish its case by
leading oral and documentary evidence in support thereof. While leading
evidence the prosecution may not be in a position to anticipate or foresee the
nature of defence which may be taken by the accused and evidence which he may
lead to substantiate the same. Therefore, it is neither expected to lead
negative evidence nor it is possible for it to lead such evidence so as to
demolish the plea which may possibly be taken by the accused in his defence.
This being the normal situation, an application moved by the prosecution for summoning
a witness under Section 311 Cr.P.C., after the defence evidence has been
recorded, should not be branded as "an attempt by the prosecution to fill
in a lacuna".
14. In the case in hand the respondent has raised a plea of alibi that at the
time of the alleged incident he was present in the chamber of the Collector,
Dadra & Nagar Haveli, Silvassa, who had called a meeting. In fact, the
respondent has led evidence on the said point by examining DW.1 and DW.2. The
evidence of the then Collector, Dadra and Nagar Haveli might as well support
the defence taken by the respondent. In such circumstances if the learned
Sessions Judge was of the opinion that in order to find out the truth, the
evidence of the Collector was necessary, no exception can be taken to the
course adopted by him. It was for the learned Sessions Judge to decide whether
for just and fair decision of the case, the evidence of the Collector is
necessary or not and he having come to a conclusion that evidence of the
Collector was necessary for just and fair decision of the case, the order
passed by him could not have been set aside by the High Court on the ground
that it would amount to filling in lacuna in the prosecution case. We are
clearly of the opinion that in the facts and circumstances of the case, the
examination of the then Collector, Dadra and Nagar Haveli cannot be termed as
filling in lacuna in the prosecution case. The learned Sessions Judge rightly
observed that the evidence of the Collector will not cause any prejudice to the
respondent as he had himself pleaded alibi and had led evidence to substantiate
the same. We are, therefore, of the opinion that the High Court clearly
erred in setting aside the order passed by the learned Sessions Judge.
15. In the result, the appeal is allowed and the judgment and order dated
8.10.2004 passed by the High Court is set aside and the order dated 12.8.2004
of the learned Sessions Judge is restored. 27929