SSK/ 1 WP/2528.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION WRIT PETITION NO. 2528 OF 2011 Jagannath Vasant Deshpande ....Petitioner Versus State of Maharashtra ...Respondent Mr. S J Ghogare, Advocate for the petitioner. Mr. Deepak R More, APP for the State. CORAM : RANJIT MORE, J. DATED : 11th NOVEMBER, 2011. P.C.: Heard learned counsel and learned APP for the respective parties. 2. By the present petition under Article 227 of the Constitution of India, the petitioner challenges the Order dated 5th August, 2011 passed by the III Judicial Magistrate, F. C. Panvel below Application at Exhibit “105” in S.C.C.No. 1702/2010. By the said Order, the petitioner’s application for recalling witness under Section 311 of the Code of Criminal Procedure, 1973 (for short “the Cr.P.C.”) came to be rejected. The petitioner is charged under Section 304(a) of the Indian Penal Code. Two children died by drowning in water tank constructed on petitioner’s construction site. PW-1- Gopal and PW-2-Ranjana are examined by the prosecution and cross- examined by the petitioner-accused on 24th February, 2010. PW-3- Prakash, PW-4-Babu, PW-5-Rajendra, PW-6-Madhukar and PW-7-Shankar were also examined on different dates and the prosecution closed its evidence on 21st October, 2010. The petitioner-accused has examined SSK/ 2 WP/2528.11 defense witnesses A1 to A4 and thereafter, the statement of accused under Section 313 of the Cr.P.C. was recorded on 20th June, 2011. The aforesaid application is filed on 3rd August, 2011. By this application, the petitioner- accused wants to recall PW-1-Gopal and PW-2-Ranjana for cross- examination. It is the case of the petitioner that he wants to bring material evidence on record. This application, as stated above was rejected by the learned Judge by the impugned order. Under Section 311 of the Cr.P.C., the 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 Apex Court had an occasion to consider the provisions of Section 311 in the case of U. T. of Dadra & Haveli & Anr. Versus Fatehsinh Mohansinh Chauhan reported in 2006(2) Bom.C.R.(Cri.)613. The Apex Court held that exercise of powers under Section 311 of the Code of Criminal Procedure, 1973 should be resorted only with the object of finding out truth or obtaining proper proof of such facts which lead to just and correct decision of case. The Apex Court further held that recalling witness or re-examining witness for finding out truth in order to enable Court to arrive at just decision of case cannot be dubbed as filing lacuna in prosecution case unless facts and circumstances of the case makes it apparent that exercise of power by Court would result in causing serious prejudice to the accused resulting in miscarriage of justice. The Apex Court in Para (8) further observed as follows: “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 SSK/ 3 WP/2528.11 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 AIR 1958 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 SSK/ 4 WP/2528.11 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.” 3. Taking into consideration the above observations and the scope of the powers under Section 311 of the Cr.C.P. in my opinion, no prejudice will be caused to the prosecution, if the petitioner-accused is allowed to cross-examine PW-1 and PW-2. The accused should not be caused any prejudice and fair opportunity should be given to the accused to defend the case. In the facts and circumstances mentioned above, in my opinion, interest of justice will be subserved, if the petitioner-accused is permitted to cross-examine PW-1 and PW-2. Consequently, the petitioner’s application at Exhibit “105” is allowed. The petitioner shall complete the entire exercise SSK/ 5 WP/2528.11 of cross-examining PW-1 and PW-2 within a period of four weeks from today. 4. In the light of the above order, the writ petition is disposed of. 5. In view of disposal of the writ petition, Criminal Application No.491 of 2011 will not survive for consideration and same is disposed of, as such. (RANJIT MORE, J.)