IN THE HIGH COURT OF UTTARKHAND AT NAINITAL Criminal Revision No. 161 of 2010 State of Uttarakhand ….……Revisionist. Versus Tilak Seth and others. …….….…..Respondents. Present: Mr. Ambrish Kumar, Special Public Prosecutor , Criminal Investigation Department (Crime Branch), Dehradun, Mr. Nandan Arya, AGA for the State of Uttarakhand and Mr. Rajendra Singh, Advocates for the revisionist. Mr. Sudhir Singh & Mr. R.K.S. Verma, Advocate for the respondents. Date of Decision: 14.9.2010 Hon’ble Sudhanshu Dhulia, J (Oral) 1. Heard learned counsels for the revisionist as well as learned counsels for the respondents. 2. This revision has been filed by the State of Uttarakhand challenging the order of the trial Court dated 15.5.2010 by which three applications, numbered as 148B, 149B and 150B moved by the prosecution under Section 311 Cr.P.C., 73 of the Indian Evidence Act, 1872 and 311 of Cr.P.C., respectively, were dismissed in Sessions Trial Case, No. 463 of 2004 State Vs. Tilak Seth and others. The trial was relating to an offence under Section 302 read with 120B IPC. 3. The matter here was heard at some length on 9.9.2010. Today, the three applications namely 148B, 149B, 150B which are the subject matter of the dispute have been placed by the State before this Court. All these applications are made a part of record and marked as Annexures – A, B and C respectively. 4. This case springs from an order passed during the ongoing proceedings in a session trial No. 463 of 2004. The incident took place in the year 2000, in which there were seven accused. The prosecution by the year 2010, had already examined a number of prosecution witnesses. What is material before this Court is the examination of P.W.6 who was an eye witness to the murder. The case of the prosecution is that P.W. 6, Udai Bhan, had come to the Court on 24.8.2004, which is proved by his signatures which are on the records of the Court. It is also the case of the 2 prosecution that in December, 2003, an affidavit was given by Udai Bhan P.W. 6 stating that he must be examined as a witness at the earliest, as there is tremendous pressure upon him to turn hostile. It was in that connection that he had come to the court on 24.8.2004. Unfortunately this P.W. 6 was examined for the first time as late as on 7th January, 2010. The examination-in-chief of P.W.6 commenced on 7th January, 2010 and the same day his cross-examination also started. While deposing before the Court P.W.6 denied having made any statement to the Police as alleged, under Section 161 of Cr.P.C. He further denied that he had seen the incident. He also denied that he was present in the Court on 24.8.2004 or that he had given any affidavit in December, 2003. In short this witness (P.W. 6) had turned hostile. The last cross-examination on this witness was done on 20.1.2010. A certified copy of the statement of P.W.6 is made a part of the record and marked as Annexure-D. 5. After the cross examination of P.W. 6 was over, the prosecution on the same day i.e. 20.1.2010, moved three applications. First application 148B was moved for recalling P.W. 5 under Section 311 of Cr.P.C. Second application 149B was moved evidently under Section 73 of the Indian Evidence Act, 1872, for the purposes of corroborating the signatures of P.W.6 with the signatures on the affidavit of 31.12.2003 with the record of the Court. According to the prosecution, this had become necessary because the signatures of P.W. 6 were already on the record of the Court and the signatures had to be verified under Section 73 of the Indian Evidence Act, 1872 in order that a just decision be reached by the Court. The third application namely 150B was for examination of two witness, namely, Ms. Shahin and Suresh Kumar Maheshwari, who were both the Advocates and Public Notary, respectively, and connected in one way or the other with the affidavit dated 31.12.2003. All these three applications were rejected by the trial Court on the ground that the re-examination of this witness or even examination of fresh witness namely Ms. Shahin and Suresh Kumar Maheshwari would amount to “filling of lacuna” in the case of the 3 prosecution. While rejecting these applications, the court below relied upon the law laid down by the Allahabad High Court in Tauseef and others Vs. State of U.P. 2003 (47) ACC 465, and it came to a conclusion that these three applications are being filed merely to fill lacuna and therefore cannot be allowed. All these applications were hence dismissed vide order dated 15.5.2010. It is this order which has presently been challenged by means of present criminal revision. 6. This Court therefore must examine primarily the provision of Section 311 of Cr.P.C. as well as other related powers of the trial Court, in order to come to a conclusion whether the impugned order dated 15.5.2010 passed by the Court below is a just order, in the light of the provision of law as also on the facts of the case. 7. In a criminal trial, as a matter of fact in any trial, the first and primary duty of the Court is to determine truth and to appreciate every evidence in order to reach to the truth of the matter, in other words a just decision. This Court has to examine as to whether the three applications moved by the prosecution were merely to fill a lacuna in the case of the prosecution or the prayers made in these applications were necessarily to be allowed by the Court so that it may reach a just decision. 8. As per the prosecution case, it became necessary for them to file these three applications on 20.1.2010 which was the last date when the cross examination was completed of P.W.6., where he was an eye witness to the incident and had stated so in his statement under Section 161 of Cr.P.C. before the Investigating Authority and subsequently had filed an affidavit in 31.12.2003 wherein he had stated that his examination be done as early as possible as he is under pressure of the defendants and had also come to the Court on 24.8.2008 only for the purposes that the early deposition be made. This important witness was not examined at the relevant time and was presented before the Court for examination as late as on 7.1.2010, when he turned hostile. This was definitely a “weakness” or rather a negligence on the part of the prosecution but it may not necessarily be an inherent weakness of their 4 case. Filling of lacuna and making up of their negligence of correction of their earlier oversight or error are two different aspects altogether. But of this later. Presently it must be seen that for the prosecution it was necessary to prove that the affidavit dated 31.12.2003 was authored by P.W. 6 and that he was present in the Court on 24.8.2004. For this reason they had moved an application under Section 73 of the Indian Evidence Act, 1872. 9. Section 73 of the Indian Evidence Act, 1872 reads as under:- “73. Comparison of signature, writing or seal with others admitted or proved.—In order to ascertain whether a signature, writing or seal is that of the person by whom it purports to have been written or made, any signature, writing, or seal admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which is to be proved, although that signature, writing, or seal has not been produced or proved for any other purpose. The Court may direct any person present in Court to write any words or figures for the purpose of enabling the Court to compare the words or figures so written with any words or figures alleged to have been written by such person [This section applies also, with any necessary modifications, to finger-impressions.]” 10. According to the prosecution, it was necessary that signatures of P.W. 6 be examined by the Court in order to determine whether in fact this witness had come to the court on 24.8.2004 or not. Another fall out from the statement of P.W. 6 was the re-examination of P.W.5 and also examination of two fresh witnesses namely Ms. Shahin and Suresh Kumar Maheshwari as they were one way or the other connected with the affidavit filed by P.W. 6 which prosecution states P.W. 6 was the author. 11. Learned counsels for the revisionist Mr. Ambrish Kumar, Special Public Prosecutor, would argue, therefore, that it was absolutely in the interest of justice and the Court should have allowed these applications because without a fresh re-apprisal/re-examiation of the witnesses a just 5 decision would not be reached. These are the main submissions of the learned counsels of the revisionist. 12. The defence which is represented by Mr. Sudhir Singh & Mr. R.K.S. Verma, Advocates would argue that it is a settled position of law that a re-examination of witnesses or even examination of a new witness under Section 311 of Cr.P.C. is only permissible when new evidence has come before the Court during trial, which necessitate the examination/re- examination of these witnesses and the powers given to the Court under Section 311 of Cr.P.C. cannot be invoked to fill an inherent lacuna in the prosecution case. Sri Sudhir Singh also submitted that though the powers under Section 311 are very wide, yet these powers are to be used sparingly and in rare cases. The counsels for the defence would also argue that even an application No. 149B which has been moved by the prosecution for assessing / comparing the signatures of P.W. 6 is in fact an application for re-examination of P.W.6 under Section 311 of Cr.P.C. which under the facts and circumstances of the case would only be an abuse of the process of the Court. In support of his case, learned counsels for the respondents has relied upon a decision of the Apex Court in Hanuman Ram Vs. State of Rajasthan and others (2009) 3 SCC (Cri) 1149. Under the facts of the case cited by the defense, the Apex Court came to the conclusion that on the factual matrix of the case before it, the trial Court was wrong in invoking its powers under Section 311 of Cr.P.C. and call for re-examination of the witnesses. 13. On the other hand, under the facts and circumstances of the present case, it is the considered view of this Court that all the three applications moved by the prosecution before the Court were not to fill any “lacuna” in the case of the prosecution but they were only moved in order to establish the case for the prosecution and hence it was necessary for the Court to have allowed these applications in order to reach a just decision. 6 14. Section 311 Cr.P.C. is a very important provision of law relating to procedure in a criminal trial. It reads as follows :- “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.” 15. This provision has been a subject matter of interpretation in various decisions of the Apex Court, which have been followed by the various High Courts, and the law on the subject is quite settled. This provision is divided into two parts. The first part merely enumerates the powers of the trial court to summon the material witness or examine a person. The second part does not enumerate these powers (the powers have already been enumerated in the first part of Section 311). The second part which starts after the ‘examined’, does not leave a Court with any choice to invoke its powers but it states that the court “shall” exercise these powers for “the just decision of the case”. What has been stated above is the often repeated assertion of the Apex Court while interpreting Section 311 Cr.P.C. The fact that these powers are in fact plenary is evident from the fact that the word “any” has been used in the Section “six” time. It is “any Court at “any” stage of “any” inquiry, ...“any” person as a witness, or examine “any” person in attendance, ...“any” person already examined …“any” such person…”. These powers, therefore, have been given to the court for a very important purpose. The purpose which is in fact the heart and soul of a trial. The powers have been given so that the court should reach a “just decision” ! 16. The main objective in a trial is to reach to the truth of the matter. The entire trial or the proceedings in a trial court are nothing if there are not a pursuit for truth and justice. Under Section 311 Cr.P.C. the Court at any stage of inquiry or trial can summon any person as a witness or examine any person in attendance who has not even been summoned 7 earlier as a witness or recall or examine a person already examined. These plenary powers have been given for a purpose so that there may not be a failure of justice on account of any mistake of either of the two parties in the trial, in bringing a valuable evidence on record or leaving any ambiguity in the statement of witnesses which have already been examined. While invoking its powers under Section 311 Cr.P.C. the Court should not be concerned that its recall or re-examination of a witness would damage the case of one party, or strengthen the case of another. The singular consideration before the Court should be, whether such an examination or re-examination is necessary in order that the Court may reach a just decision. Furthermore, the Court is not bound to invoke these powers only on an application moved by the prosecution or by the defence! These powers can be invoked suo motu as well – again in order to reach a just decision. In fact the powers given to the Court under Section 311 Cr.P.C. must be understood and read along with the wide powers given to the Court under Section 165 of the Indian Evidence Act, 1872. Section 165 of the Indian Evidence Act, 1872 read as under:- “Section 165. Judge’s power to put question or order production.- The Judge may, in order to discover or to obtain proper proof of relevant facts, ask any question he pleases, in any form, at any time, of any witness, or of the parties, about any fact relevant or irrelevant; and may order the production of any document or thing; and neither the parties nor their agents shall be entitled to make any objection to any such question or order, nor, without the leave of the Court, to cross-examine any witness upon any answer given in reply to any such question: Provided that the judgment must be based upon facts declared by this Act to be relevant, and duly proved: Provided also that this section shall not authorize any Judge to compel any witness to answer any question, or to produce any document which such witness would be entitled to refuse to answer or produce under Sections 121 to 131, both inclusive, if the questions were asked or the documents were called for by the adverse party; nor shall the Judge ask any question which it would be improper for any other person to ask under Sections 148 or 149; nor shall he dispense with primary evidence of any document, except in the cases hereinbefore excepted.” 8 17. Again these powers are wide powers with the trial Judge, since the entire exercise in a trial is the pursuit of truth and justice and all the efforts of the Court are geared towards reaching a just decision, the law empowers the trial judge to ask any question to the witness in order to get to the truth of the matter. The Court cannot be a silent spectator like an Umpire in Cricket Match, who is assigned the task of raising his finger and pointing to the faults in the game. A judge is an active participant in a trial proceeding ! The scope and powers of a trial judge and more particularly the powers given to a trial judge under Section 165 of the Evidence Act have been explained by Justice O. Chinnappa Reddy in Ram Chander v. the State of Haryana AIR 1981 SC 1036. While elaborating the powers of a trial judge in general and his powers under Section 165 of the Evidence Act in particular, the learned Judge had stated thus :- “The adversary system of trial being what it is, there is an unfortunate tendency for a judge presiding over a trial to assume the role of a referee or an umpire and to allow the trial to develop into a contest between the prosecution and the defence with the inevitable distortions flowing from combative and competitive elements entering the trial procedure. If a Criminal Court is to be an effective instrument in dispensing justice, the presiding judge must cease to be a spectator and a mere recording machine. He must become a participant in the trial by evincing intelligent active interest by putting questions to witnesses in order to ascertain the truth”. Thereafter Justice O. Chinnappa Reddy in order to press his point further quoted from a judgment from Andhra Pradesh High Court in Sessions Judge, Nelore v. Intna Ramana Reddy, ILR (1972) Andh Pra 683, which was as follows :- “Every Criminal trial is a voyage of discovery in which truth is the quest. It is the duty of a presiding Judge to explore every avenue open to him in order to discover the truth and to advance the cause of justice. For that purpose he is expressly invested by Section 165 of the Evidence Act with the right to put questions to witnesses. Indeed the right given to a Judge is so wide that he may ask any time, of any witnesses, or of the parties about any fact, relevant or irrelevant. Section 172(2) of the Code of Criminal Procedure enables the Court to send for the police- diaries in a case and use them to aid it in the trial. The record of 9 the proceedings of the committing Magistrate may also be perused by the Sessions Judge to further aid him in the trial.” Referring to Section 165 of the Evidence Act, the Apex Court stated that it is the duty of a judge to discover the truth and for that purpose he may “ask any question, in any form, at any time, of any witness or of the parties, about any fact, relevant or irrelevant”. A conjoint reading of Section 311 Cr.P.C. with Section 165 of the Indian Evidence Act, 1872 makes it abundantly clear that the Court should not be passive but should be active participant, as this is what is required from them under the law. 18. In the seminal judgment of Zahira Habibullah Sheikh & Anr. v. State of Gujarat and Ors. [(2004) 4 SCC 158], Supreme Court while elaborating on Section 311 and Section 391 Cr.P.C. had this to say :- “Right from the inception of the judicial system it has been accepted that discovery, vindication and establishment of truth are the main purposes underlying existence of Courts of justice. The operating principles for a fair trial permeate the common law in both civil and criminal contexts. Application of these principles involve a delicate judicial balancing of competing interests in a criminal trial, the interests of the accused and the public and to a great extent that of the victim have to be weighed not losing sight of the public interest involved in the prosecution of persons who commit offences.” At another place the Apex Court further stated as under :- “The Courts have to take a participatory role in a trial. They are not expected to be tape recorders to record whatever is being stated by the witnesses. Section 311 of the Code and Section 165 of the Evidence Act confer vast and wide powers on Presiding Officers of Court to elicit all necessary materials by playing an active role in the evidence collecting process. They have to monitor the proceedings in aid of justice in a manner that something, which is not relevant, is not unnecessarily brought into record. Even if the prosecutor is remiss in some ways, it can control the proceedings effectively so that ultimate objective i.e. truth is arrived at. This becomes more necessary where the Court has reasons to believe that the prosecuting agency or the prosecutor is not acting in the requisite manner. The Court cannot afford to be wishfully or pretend to be blissfully ignorant or oblivious to such serious pitfalls or dereliction of duty on the part of the prosecuting agency.” 10 Further while elaborating the powers under Section 165 of the Evidence Act and Section 311 Cr.P.C. the Court stated as follows :- “The power of the Court under Section 165 of the Evidence Act is in a way complementary to its power under Section 311 of the Code. The section consists of two parts i.e (i) giving a discretion to the Court to examine the witness at any stage and (ii) the mandatory portion which compels the Court to examine a witness if his evidence appears to be essential to the just decision of the Court.” The Apex Court stated that the second part of Section 311 Cr.P.C. is mandatory and is not a matter of choice once a court comes to the conclusion that such powers have to be exercised for a just decision. The Court stated as follows :- “The second part of the section does not allow any discretion but obligates and binds the Court to take necessary steps if the fresh evidence to be obtained is essential to the just decision of the case - 'essential', to an active and alert mind and not to one which is bent to abandon or abdicate. Object of the Section is to enable the Court to arrive at the truth irrespective of the fact that the prosecution or the defence has failed to produce some evidence which is necessary for a just and proper disposal of the case. The power is exercised and the evidence is examined neither to help the prosecution nor the defence, if the Court feels that there is necessity to act in terms of Section 311 but only to subserve the cause of justice and public interest. It is done with an object of getting the evidence in aid of a just decision and to uphold the truth.” The Apex Court further stated as follows :- “The contaminated conduct of officials should not stand on the way of Courts getting at the truth by having recourse to Sections 311, 391 of the Code and Section 165 of the Evidence Act at the appropriate and relevant stages and evaluating the entire evidence; otherwise the designed mischief would be perpetuated with a premium to the offenders and justice would not only be denied to the complainant party but also made an ultimate casualty.” 19. What is a lacuna? Since the main argument of the defence counsel was that “lacuna cannot be filled”, let us examine what is actually meant by a “lacuna. A 11 lacuna in the case of prosecution is different from a mere weakness or a negligence. Lacuna is much more. “Filling of lacuna” in the prosecution case is the most commonplace objection raised