IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Rev. No. 108 of 2008. Date of Decision: 1.10.2008. _______________________________________________________ State of H.P. Petitioner. Versus Ravi Kumar Respondent. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting?.. Yes. For the Petitioner : Mr. J.S.Guelria, Law Officer. For the respondents. Mr. Ajay Chandel, Advocate. Surinder Singh, J. (oral) This petition is treated to be a petition under Section 482 of the Code of Criminal Procedure, on the request of learned Law Officer. The facts germane to the present petition are that during the intervening night of 11th and 12th July, 2005, the respondent-accused came from Manimajra and had stayed along with his wife Monika (deceased) in “Ganga Lodge” Hotel at Una wherein Shri Krishan Kumar (PW13) was the Manager and Sudama Mahato, a waiter who attending the aforesaid couple. Following morning, the accused-respondent is alleged to have slipped away from the hotel on the pretext that he was going out to smoke a cigarette outside and would return within ten minutes but, he did not return. The hotel staff entertained a suspicion, thus Sudama Mahato waiter was sent to verify from the room where the couple was staying but it was found locked. Thereafter, the Manager opened the door of the room with a duplicate key and found Monika strangulated with dupatta. She was dead. The matter was reported to the Police and autopsy of the dead body was performed. ________________________________________________________________ Whether the reporters of the Local Newspapers are allowed to see the judgment? Yes. - 2 - The accused was arrested and identification parade was got conducted in the jail in the presence of Shri Partap Singh Thakur, Judicial Magistrate. The accused was identified by PW13 Krishan Kumar, the Manager of the Hotel and his waiter Sudama Mahato. The TIP proceedings were sealed by the learned Judicial Magistrate (PW26) and these were opened during the trial of the case when the said Magistrate was examined in the Court. The statement of Sudama Mahato under Section 161 of the Code of Criminal Procedure was not recorded by the Police nor was he cited as a witness in the challan. PW13 Krishan Kumar turned hostile and did not support the case of prosecution identifying the accused before the Judicial Magistrate. On 30.7.2007, an application under Section 311 of the Code of Criminal Procedure was moved by the prosecution to examine said Sudama Mehto on the ground that during the trial of the case, Shri Partap Singh, Judicial Magistrate appeared as PW26 as a witness for the prosecution on 11.6.2007 and deposed that as per the TIP record dated 11.8.2005 opened in the Court during his statement, the accused was identified by PW13 Krishan Kumar and Sudama Mahato. The application was resisted by the respondent and after hearing the parties, vide order dated 18.8.2007, the learned trial Court allowed the said application and the concluding para of the order reads as under :- “I have given my considered thought to the rival contentions raised and I understand that the application deserves to be allowed in view of the facts and circumstances of the case. Sudama Mahato, whose name figures in the FIR, was allegedly serving as waiter in Ganga Lodge Hotel, Una in which Monika was allegedly done to death by the accused. He is stated to have identified the accused during the test identification parade held by Sh. Partap Thakur, then Judicial Magistrate Ist Class, Court II Una, in Sub Jail, Una, on August 11, 2005. In view of - 3 - these facts, the evidence of Sudama Mahato is decidedly essential to the just decision of the case, and the application therefore deserves to be allowed. Hence, the application is allowed. Let Sudama Mahato be now summoned through special messenger for 6.9.2007.” Thereafter, the case was fixed for recording the statement of Sudama Mahato, but his presence could not be obtained. He had left the job and went to his home State Bihar and the prosecution failed to furnish his correct address. The learned Public Prosecutor stated before the learned trial Court that the witness having eloped, his where abouts could not be traced despite best efforts. The learned trial Court did not grant any other opportunity hence the evidence of the prosecution was closed by the order of the Court vide orders dated 24.10.2007 and the case was fixed for recording the statement of the accused under Section 313 of the Code of Criminal Procedure. After recording the statement of the accused on 16-11-2007, the accused was called upon to enter into his defense. The accused examined one witness on 3-1-2008 in defense. On 17-1-2008, arguments in the case were partly heard. After few adjournments, the matter was fixed on 4.3.2008 for arguments, on that date, the learned Public Prosecutor moved another application under Section 311 of the Code of Criminal Procedure for summoning said Sudama Mahato as his address was available and examine him in the interest of justice. This application was countered by the respondent on the ground that numerous opportunities were granted to the prosecution to produce the said witness but they failed to produce him and the learned trial Court was perfectly justified to close the evidence of the prosecution, therefore, the application cannot be allowed at the fag end of the trial. Vide order dated 26-3-2008, the second application under Section 311 Cr.P.C. was dismissed by the Court on the ground that allowing the - 4 - said application would decidedly tantamount to recalling of the earlier order dated 24-10-2007 whereby the evidence of the prosecution was closed by the Court. Since the said order could not have been re-called, the application was rejected. Feeling aggrieved and dis-satisfied by the impugned order, the State has filed the instant petition on the ground that once the Court had allowed the application to examine Sudama Mahato as a witness for the prosecution. It should have taken every step to procure his presence and Section 311 of the Code of Criminal Procedure equips the Court of law to examine any person whose evidence appears to be essential to the just decision of the case so that substantial justice is secured to the victim as well as to the accused. Shri J.S. Guleria learned Law Officer for the State has vehemently argued that the Court had itself held that the statement of Sudama Mahato in the facts and circumstances of the case was essential for the just decision of the case. The notice was not issued to the Investigating Officer to procure the presence of the said witness nor coercive methods were used by the trial Court to procure the presence of the witness for the purpose of examination in the Court. The Court should not have acted upon the bare statement of the learned Public Prosecutor. Contra, Shri Ajay Chandel, learned counsel for the respondent has argued that in the second application, the prosecutor had mentioned that the S.H.O. was informed to furnish the correct address of the said witness but he had shown his inability to procure the correct address and no reasons were given in the second application from where they came to know about the present address of the said witness. Therefore, in the aforesaid circumstances, lapses on the part of the prosecution are writ large for which the accused cannot be made to suffer and that when the first application stood allowed, the second application was not maintainable. - 5 - I have given my thoughtful consideration to the rival contentions of the parties and have examined the record. Section 311 of the Code of Criminal Procedure as two limbs and 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 proceedings under this Court, 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 first part gives purely discretionary authority to the Criminal Court to enable it at any stage of an inquiry, trial or proceedings under this Code to: a) to summon any person as a witness or to examine any person in attendance though not summoned as a witness or b) to re-call and re-examine any person whose evidence has already been recorded and the Court, if his evidence appears to the essential for the just decision of the case. The second part of the Section aforesaid is mandatory and compels the Court to take any of the above steps if evidence of any person appears to it to be essential for the just decision of the case. In Rajendra Prasad case, (1999) 6 SCC 110, the Supreme Court has also held that 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 - 6 - an oversight in the management of the prosecution cannot be treated as irreparable lacuna. No party in a trial can be fore-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. In Shailendra Kumar –v- State of Bihar and others AIR 2002 S.C. 270, it was held by the Supreme Court that bare reading of Section 311 aforesaid reveals that it is of very wide amplitude and if there is any negligence, latches or mistakes by not examining material witnesses, the Courts function to render just decision by examining such witnesses at any stage is not, in any way, impaired. The scope and object of Section 311 Cr.P.C. has been dealt in detail by the Supreme Court in Zahira Habibulla H. Sheikh and another –v- State of Gujarat, commonly known as ‘Best Bekry Case’: (2004) 4 SCC 158, the Court cannot remain blind to the truth. If the prosecutor is remiss in some ways, the Court can control the proceedings efficiently so that the ultimate objective i.e. the truth is arrived at. The prosecutor who does not act fairly and acts like a counsel for the defense is a liability to the fair judicial system and Courts should not play into the hands of such a prosecuting agency showing indifference or adopting an attitude of total aloofness. I In Iddar and others –v- Aabida and another, 2007 (2) S.L.J. (SC) 1311 it has been held by the Supreme Court that this is a supplement provision enabling, and in certain circumstances imposing on the Court the duty of examining a material witness who would not be otherwise brought before it. It is couched in the widest possible terms and calls for no limitation, either with regard to the stage at which the powers of the Court should be exercised, or with regard to the manner in which it should be exercised. It is - 7 - not only the prerogative but also the plain duty of a Court to examine such of those witnesses as it considers absolutely necessary for doing justice between the State and the subject. There is a duty cast upon the Court to arrive at the truth by all lawful means and one of such means is the examination of witnesses of its own accord when for certain obvious reasons either party is not prepared to call witnesses who are known to be in a position to speak important relevant facts. Now, adverting to the facts of this case, as already stated above, the learned trial Court had come to the conclusion while deciding the first application that the statement of Sudama Mahato was essential for the just decision of the case and opportunity was given to the prosecution to produce him but only on the bare statement of the prosecutor, the trial Court chose to close the evidence without resorting to the coercive method to procure his presence, calling the investigating officer and the Court cannot be a silent spectator and playing at the hands of the prosecutor, it should have adopted all the methods interceded by law, after all it was an exercise to found out the truth. Though the prosecution moved the second application but it was rightly held that the trial Court could not have recalled its earlier order. However, while examining the facts and circumstances made in this petition, I feel that the examination of said witness Sudama Mahato in the instant case is material and essential for the reason that PW13 Krishan Kumar who is alleged to have identified the accused in the test identification parade before PW26 Partap Singh Thakur Judicial Magistrate, had resiled from his earliest version. Therefore, in these circumstances, when Sudama Mahato was also present and had identified the accused before the Magistrate. Since the prosecution is stated to have obtained his address, the request cannot be declined in the interest of justice as the duty of the Court is to find out the truth and for that the statement of the said witness is material for the just decision of the case. There may be a bar to the learned Sessions Judge that he could not have recalled his earlier order, but while exercising the powers under Section - 8 - 482 Cr.P.C. this Court has ample and wide jurisdiction to correct the error and pass the orders to prevent the miscarriage of justice. Accordingly, the present petition is allowed and the impugned order passed by the trial Court is set- aside and the prosecution is hereby directed to furnish the correct address of witness Sudama Mahato on the first date of hearing to be fixed hereinafter before the trial Court and request for bailable warrant to procure the presence of the said witness on a date to be fixed by the learned trial Court. In case the said witness does not appear on the said date, it shall be open for the learned trial Court to resort to coercive method to procure his presence by issuing the non-bailable warrants and it shall be the duty of the State to render every assistance to the Court to procure his presence. It is made clear that un-necessary and long adjournments in the case shall not be granted for the examination of the said witness. The parties are hereby directed to be present before the learned trial Court on 20.10.2008. The record of the trial Court be returned forthwith before the said aforesaid. (Surinder Singh) Judge. October 1, 2008. (bm) - 9 -